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A  TREATISE 


ON  THE 


Bankruptcy  Law 


of  the  United  States 


BY  HAR©LD  REMINGTON 

Referee  in  Bankruptcy,  Cleveland,  0. 
Lecturer  on  the  Laiv  of  Bankruptcy  at  Western  Reserve  University 


Volume  II 


The   Michie   Company,   Law   Publishers 

Charlottesville,  Va. 

1908 


Copyright,  1908 

BY 

Harold  Remington. 

T 


TABLE  OF  CONTENTS  IN  VOLUME  II. 


For  Table  of  Contents  in  Vol.  I,  see  Vol.  I. 


PART  VI. 

Converting  the  Assets  into  Money, 

CHAPTER  XXXVII. 

Appraisal. 

§  1924.  All  Property  of  Estate  to  Be  Appraised   1203 

§  1925.  Only  Property  of  Estate  Need  Be  Appraised 1203 

§  1926.  Appraisers  to  Be  Disinterested 1203 

§  1927.  And  to  Be  Appointed  by  and  Report  to  Court 1204 

§  1928.  Three  Appraisers    1204 

§  1929.  To   Be   Sworn    1204 

§  1930.  Method  of  Arriving  at  Appraisal  Values   •. 1205 

§  1930^4.  Reappraisal 1206 

CHAPTER  XXXVIII. 

Sale  of  Assets. 

§  1931.  Sale  to  Be  on  Petition  and  Order  1207 

§  1932.  Equity  Rules  Followed  Where  Act,  Forms  and  Orders  Silent 1208 

§  1933.  Special  Orders  as  to  Manner  of  Sale  1208 

§  1934.  As  to  Auctioneers  Conducting  Sale   1208 

§  1935.  Whether  Sate  to  Be  for  Cash" 1209 

§  1936.  Bids  Both  in  Bulk  and  Parcels  with  Acceptance  of  Greatest  Aggre- 
gate     1209 

§  1937.  Trustee's    Judgment    Ordinarily    of    Controlling    Weight    in    Fixing 

Details,  but  Creditors,  and  Even  Bankrupt,   Heard 1209 

§  1938.  Ten  Days  Notice  by  Mail  Requisite   1209 

§  1939.  Public   Auction   of   Real    Estate   to   Be,   Also,   on    Four  Weeks   Ad- 
vertisement, and  at  County  Courthouse  or  on  Premises 1210 

§  1940.  Private    Sales,    Real    Estate   or   Personal   Property,    Advertised   and 

Conducted    as    Court    Directs    1210 

§  1941.  Who  May  File  Petition  to  Sell:  Trustee,  Receiver,  Marshal,  Bank- 
rupt      ; 1211 

§  1942.  Perishable  Property  May  Be  Sold  without  Notice   1212 

§   1943.  Sales    before    Adjudication 1212 

§  1944.  Meaning  of   "Perishability."    1212 

§  1945.  Referee  to   Order  Sale  after  Reference 1214 

§  1946.  Before  Adjudication  Judge  Alone  to  Order  Sale,  unless  Unable  to 

Act     1214 


776901 


IV  TABLE  OF  CONTENTS. 

§  1947.  To    Be    at    Public    Auction,    unless    Expressely    Authorized    at    Pri- 
vate   Sale    1214 

§  1948.  For  Good  Cause  Shown  May  Be  at  Private  Sale 1214 

§  1949.  Sale'Subject  to  Approval  and  to  Be  for  Seventy-Five  per  Cent....  1215 

§  1950.  Trustee's  Sale,  a  Judicial  Sale    1215 

§  1951.  And  Court  Has  Greater  Discretion  than  in  Other  Sales 1216 

§  1952.  "Gross   Inadequacy"   Sufficient   to    Refuse    Confirmation 1216 

§  1953.  But  Mere  Inadequacy,  or  Merely  a  Better  Ofifer,  Insufficient 1216 

§  1954.  Stifling   of   Competition;    Misconduct    of   Trustee    or   Unfairness    to 

Bidders    1217 

§  1955.  Bankrupt   May   Be    Bidder    1218 

§  1956.   May  Accept  Bid  of  Less  than  Seventy-Five  per  Cent 1219 

§  1957.  Inherent    Power    to    Refuse    Confirmation    or    to    Set    Aside,    Even 

Where  Not  Expressly  Ordered  "Subject  to  Approval." 1219 

§  1958.   Formal  Approval   Not  Always   Essential  to   Confirmation 1220 

§  1959.  "Caveat     Emptor."     1220 

§  1960.   Discretion  in  Approving  or  Setting  Aside  Sale  Not  to  Be  Revised. 

except   for   Abuse    1221 

§  1961.   Resale    1221 

§  1962.  Summary  Power  to  Compel  Purchaser  to  Complete  Sale 1221 

CHAPTER  XXXIX. 

Selling  Property   Subject  to  and  Free  from   Liens  ;  and  Trans- 
ferring Rights  to  Proceeds. 

§  1963.   May   Be   Sold   Subject   to   Liens 1223 

§  1964.  If  Not  Mentioned  to  Be  Otherwise,  Sale  Is  Subject  to  Liens 1223 

§  1965.  May  Be  Sold  Free  from  Liens  and  Liens  Transferred  to  Proceeds..  1223 

§  1966.  Lienholder's  Consent  Not  Necessary   1225 

§  1967.  Sale    Clear   and    Free    Ordered   before    Validity    or    Priority    Deter- 
mined     1225 

§  1968.  But  Not  Where  Lienholder  Who  Desires  to  Bid,  Objects 1225 

§  1969.  Sale  Subject  to  Some  Liens  Free  from  Others 1225 

§  1970.  Order  Should  Provide  for  Transfer  of  Rights  to  Proceeds 1226 

§  1971.  No  Sale  Free  and  Clear  unless  Reasonable  Prospect  of  Surplus  Ap- 
pear or   Lienholder   Requests    1226 

§  1972.  Parties    Relegated    to    State    Court    Where    Foreclosure    Necessary 

to  Bar  Rights  Not  within  Jurisdiction  of  Bankruptcy  Court 1227 

§  1973.  Thus,    Where    Inchoate    Dower    Outstanding 1227 

§  1974.'  But,  if  Wife  Consents,  Sale  May  Be  Made  Free  from  Dower 1227 

§  1975..  Referee  May  Order  Sale  Free  from  Liens 1228 

§  1976.   Even  Free  from   Lien  Taxes    , 1228 

§  1977.  Even  before  Validity  and  Priority  of  Liens  Determined 1228 

§  1978.   Even  Where  Located  Outside  of  State,  Provided  Property  Be  Per- 
sonally and  in  Actual  Custody  1228 

§  1979.  And  Consent  of  Parties  Not  Necessary   1228 

§  1980.  Notice  to  Lienholders   Requisite 1229 

§  1981.'  No  Established  Form  for  Notice    ^ 1229 

§  1982.  "Order  to  Show  Cause,"  Approved  Form  of  Notice 1229 

§  1983.  Record  of  Referee  to  Show  Notice  and  to  Whom  Given 1230 

§  1984.  Procedure  in  Referee's  Court  to  Follow  Equity  Rules  Where  Bank- 
ruptcy  Rules   Silent    1230 

§  1985.  How  Lienholder  to   Set  Up   Lien 1230 


TABLE  OF  CONTEXTS.  V 

§  1986.  Separate  Accounts  of  Each  Fund  to  Be  Kept   ■ 1230 

§  1987.   Failure  to  Object  to  Sale  without  Separatiooi  Waives   Rights 1231 

§   1988.  Taking  Additional  Evidence,  after  Sale,  to  Fix  Proportions  of  Fund.  1233 
§  1989.   Expenses  of  Preservation  and  Sale  Paid  Out  of  Particular  Fund  In- 
volved      1232 

§  1990.   Each   Fund  to  Bar  Its  Own  Expenses  and  Costs 1233 

§  1991.  Proportionate  Part  Not  to  Be  Charged  against  Each   Lien 1233 

§  1992.  Costs  and  Expenses  First  Deducted  and  Liens  Paid  Out  of  Remain- 
der      1233 

§   1993.   General  Costs  of  Administration  Not  Chargeable 1233 

§  1994.  Trustee's    Attorney's    Fees    and    Expenses    Benefiting    Entire    Fund 

Chargeable  but   Xot   Services   for  Litigating  Liens 1^34 

§  1995.  Referee  Has  Authoritj^  to  Tax  Costs  and  Expenses 1234 

§  1996.   Costs    and    Expenses    Taxable 1234 

§   1997.   Lienholder   as   Purchaser,   May   Apply   Lien  on   Price,   except   as   to 

Superior    Liens     1236 

§   1998.  Trustee's  Deed  or  Bill  of  Sale 1236 

§  1999.   Remedies    against    Purchaser     1236 

§  2000.   Xo   Jurisdiction    of    Suit    by    Third    Part}-    against    Purchaser    from 

Trustee     1237 

PART  VII. 

Costs  of  Administration,  Distribution  and  Closing  of  Estates. 

CHAPTER  XL. 

Cost  and  Expenses  of  Administration. 

§  2001.  Jurisdiction  to  Tax  Costs   1244 

§  2002.  May   Be   Taxed  by   Referee    1244 

§  2003.  May  Be  Taxed  against  Successful  Party,  "for  Cause." 1244 

§  2004.  No  Showing  of  "Cause"  Requisite  Where  Taxed  against  Unsuccess- 
ful   Party    1245 

§  2005.   Stenographer's  Fees  Taxable  as  Costs 1245 

§  2006.   Employment  of  Stenographer  at  Expense  of  Estate 1245 

§  2007.   Compensation  Not  to  Exceed  Ten  Cents  per  Folio  for  Taking  and 

Transcribing    1245 

§  2008.   Costs  in  Contesting  Claims  before  Election  of  Trustee  Not  Taxable 

against    Estate    1246 

§  2009.  No   Costs   in   Personam    against    Parties   in    Summarj^    Proceedings, 

Not   Personally   Appearing    1246 

§  2010.  No  Part  of   General   Costs  of  Administration   to   Be  Taken   Out   of 

Property  Not   Forming  Part  of  Assets   for  Administration 1246 

§  2011.  Policy   of  Act,   Strictest   Economy 1247 

§  2012.  Preliminary  Deposits  for  Referee,  Clerk  and  Trustee 1249 

§  2013.   First  "Priority" — "Actual  and  Necessary  Cost  of  Preserving  Estate 

Subsequent  to  Filing  Petition."    1250 

§  2014.  What  Included  in  Term 1250 

§   2015.   Second    "Priority" — Reimbursement    of    Petitioning    Creditors,    and 

of  Creditors  Recovering  Concealed  Assets 1252 

§  2016.  Reimbursement  of  Creditors  Recovering  Concealed  Assets,  etc....  1253 
§  2017.  Trustee  to  Be   Given  First  Opportunity    1253 


VI  TABLE  OF"  CONTENTS. 

§  2018.  Disallowance  of  Unjust  Claims  before  Election  of  Trustee 1254 

§  2019.  Third  Priority — "Costs  of  Administration." 1256 

§  2020.  Equity  Rules  to  Govern  Order  of  Precedence  in  Class  Three 1256 

§  2021.  Indemnifying  Court  Officers  and  Advancing  Moneys  for  Expenses.  1257 

§  2022.  Reimbursement   of   Expenses   Advanced 1257 

§  2023.  Xo  Reimbursement  of  Original  Deposit  except  to  Petitioning  Cred- 
itors      1257 

§  2024.  Nor  of  Attorney's  Fees  Paid  by  Bankrupt  in  Advance   1258 

§  2025.  No  Reimbursement  of  Bankrupt  for  Care  of  Exempt  Property....  1258 
§  2026.  Reimbursement   to   Follow   Order   of   Priority   of   Expenses   Them- 
selves  1258 

§  2027.  Probable  Order  of  Priority    1258 

S  2028.  Referee's    Expenses     1259 

§  2029.  "Expenses"  Not  Covered  by  Statutory  "Compensation"  of  Referee 

and    Trustee    1259 

§  2030.  What   Are   Proper    Expenses   of   Referee 1259 

§  2031.  No    Reimbursement    \Miere    Expenses    Not    Required    by    Act    or 

Rules     1260 

§  2032.  Method  of  Apportioning  Expenses   1261 

§  2033.  Expenses  of  Receivers  and  Trustees 1261 

§  2034.  Rent  for  Use  and  Occupation   1261 

§  2035.   Computed  at   Lease   Rate    1262 

§  2036.   Expense   of   Conducting   Business    1263 

§  2037.  Auctioneer    1263 

§  2038.   Premium  on  Bond   1263 

§  2039.  Not  Necessary  to  Pay  Expenses  Out  of  Pocket  First,  Then  to  Be 

Allowed   Reimbursement 1263 

§  2040.  Cost  and  Expenses  of  Litigation    1264 

§  2041.  Attorney's  Fees  Incurred  by  Trustees  and  Receivers  1264 

§  2042.  Allowable   Attorney's    Fees    1265 

§  2043.  Clerical   Work   or   Ordinary   Business   Advice    Not   to   Be    Charged 

for  at   Professional   Rates    1265 

§  2044.  For  Many  Services  Attorney  to   Seek  Pay  from   Own   Client,   Not 

from    Estate    ^ 1265 

§  2045.  The   Fees  Allowed  Must   Be  "Reasonable."    1266 

§  2046.  "Reasonableness"  Left  to  Sound  Judicial  Discretion  of  Court 1267 

§  2047.  Various    Elements    to    Be     Considered,    Each     Having    Modifying 

Effect    1268 

§  2048.  Sixth  Element,  in  Bankruptcy  Cases,  "Economy" 1271 

§  2049.  Items    Properly    to    Be    Grouped    According    to    Separate    Contro- 
versies Involved  and  Estimate  ^lade  as  to  Each  Group 1272 

§  2050.  "Retainer  Fees,"  No  Place  in  Bankruptcy 1274 

§  2051.  Mere   Incidental   Benefit   from   Services   in   Opposing  Adjudication, 

etc.,  Not  Sufficient 1274 

§  2052.  Showing  to  Be  Made  of  Propriety  and  Reasonableness    1275 

§  2053.  Notice  to  Creditors  Not  Requisite,  unless  by  Local  Rule   1275 

§  2054.  Trustee's    and    Receiver's    Attorney's    Fees 1276 

§  2055.  Not  to  Employ  Attorney  to  Do  Ordinary  Business  Duties  of  Trus- 


tee 


1278 


§  2056.  Fees  Allowable  for  Investigating  and  Resisting  Improper  Claims..  1279 
§  2057.  But  Creditors  Not  So  Entitled  Even  for  Successful  Objections  to 

Claims  before   Election  of  Trustee    1279 


TABLE  OF  CONTENTS.  VH 

§  2058.  No  Fees  for  Preparation  of  Papers  Where  Supreme  Court's  Forms 

Adequate    1280 

§  2059.  Whether  Trustee   Allowed   Attorney's   Fees    for   Own    Professional 

Services 1280 

§  2060.  Attorneys  for  Creditors  Co-Operating  with  Trustee's  or  Receiver's 

Attorney    Not    Entitled    1281 

§  2061.   Exhausting  Entire  Estate  in  Attorney's  Fees  in  Efforts  to  Discover 

Assets 1282 

§2062.   Fee   Bills,   Properly,    Should   Be    Itemized    1282 

§  2063.  Petitioning  Creditors'  Attorney's    Fees    1282 

§  2064.  Is  Matter  of  Right    1282 

§  2065.  Only  One  Fee,  Irrespective  of  Number  of  Attorneys 1282 

§  2066.  Apportionment  Where  Intervening  Creditors  Assist    1283 

§  2067.  Apportionment  in  Cases  of  Consolidation    1283 

§  2068.  For  What  Services  Allowable  to  Petitioning  Creditors   1283 

§  2069.  Allowance  Not  to  Be  on  Basis  of  Plaintiffs'  in  Creditors'  Bills....  1284 
§  2070.  "Amount  Involved,"  Not  Entire  Estate  but  Only  Surplus  over  Valid 

Liens    1284 

§  2071.  No  Fees  to  Petitioning  Creditors  for  Objecting  to  Claims  at  Elec- 
tion of   Trustee    1285 

§  2072.  Nor  for  Examination  of  Bankrupt  after  Appointment  of  Trustee..  1285 

§  2073.  But  Allowable  for  Pursuing  Property  before  Adjudication 1285 

§  2074.  None  for  Services  after  Election  of  Trustee   1285 

§  2075.  No  Allowance  in  General  Out  of  Mortgaged  Property  Sold   1285 

§  2076.   Review  of  Allowance  of  Petitioning  Creditor's  Fees  by  Appeal....  1286 

§  2077.  Bankrupt's  Attorney's   Fees    1286 

§  2078.  In  Involuntary  Cases,  Confined  to  Services  Rendered  While  Bank- 
rupt in  Performance   of  Duties   Prescribed  by   Law    1287 

§  2079.  Actual  Benefit  to  Estate  Not  Test,  However    1288. 

§  2080.  Services  Must  Be  Reasonably  Necessary  and  Actually  Rendered..  ..  1288 
§  2081.   Must   Be   Professional   Legal   Services,  and  Not  Merely   Clerical   or 

Business 1288 

§  2082.  Legal    Assistance    in    Preparing    Schedules,    Examining    Claims    at 

First  Meeting,   etc.,  Proper    1288- 

§  2083.  "Amount  Involved"  Not  Entire  Estate,  but  Only  Surplus  over  Valid 

Liens     1289 

§  2084.  No  Allowance   Out  of  Mortgaged  Property,  except  for  Mere   Pres- 
ervation      1289 

§  2085.  And  None  for  Services  in  Opposing  Bankruptcy  Proceedings 1289- 

§  2086.  For  Attendance  at  Bankrupt's  Examination  Allowable   1290- 

§  2087.  Whether  Fees  Allowable  for  Petition  for  Discharge,  etc 1291 

§  2088.  No   Allowance    for    Bankrupt's   Admission   in    Writing  of   Inabillity 
to  Pay  Debts,  etc.,  nor  for  Services  in  Aid  of  Adjudication;  nor 

in  Contests  over  Exemptions   1293 

§  2089.  Bankrupt's  Fee  Allowable  More  Discretionary  in  Voluntary  than  in 

Involuntary    Cases    1293 

§  2090.  Test  in  Voluntary  Cases,  in   General    ■. 1294 

§  2091.  Preliminary  Consultations  May  Be  Charged  for  in  Voluntary  Cases.  1295- 
§  2092.  Application  for  Receiver  or  Other  Provisional  Remedy  Allowed  for..  1295 

§  2093.   Only  One  Fee  to  Be  Allowed   1295 

§  2094.  Bankrupt   Paying  Attorney   in   Advance    1296 

§  2095.  All   Payments   to   Attorney   in   Contemplation   of   Bankruptcy   Gov- 
erned  by   §    60    (d)     '• .  •  •  1296: 


yijl  TABI^E  01^  CONTENTS. 

§  2096.  Whether   Different   Principles   Govern   from  Those   Where   Allowed 

Out   of    Estate    1296 

§  2097.  Under  §  60  (d)  Must  Be  for  Benefit  Estate  or  in  Furtherance  of  Ad- 
ministration       1296 

§  2098.  Prepaid  Fee  to  be  "Reasonable"  and  Subject  to   Re-Examination..  1298 

§  2099.  Summary  Jurisdiction  over  Attorney  to  Require  Repayment  of  Ex- 

1298 
cess    ^"'^^ 

§  2100  Prepayment  before  Filing  Petition,  or  at  Any  Time  before  Adjudica- 
tion     ■  •  •  •  1298 

§  2101.  Prepayment   Effected   by   Giving   Security    1298 

§  2102.   Referee's    Compensation    1299 

§  2103  Referee's  (Commissions  Computed  on  Disbursements  to  "Credit- 
ors."     1299 

§  2104.  Thus,    Commissions    on    Disbursements    to    Priority    and    Secured 

Creditors    1300 

§  2105.  Property   Sold   Fr^e  of  Liens   When   Lienholder   Purchaser 1300 

§  2106.  In    Composition    Cases    Referee   to    Receive    One-Half   of    One    per 

Cent    ■ 1300 

§  2107.  "Twenty-Five  Cents  for  Each  Claim  Filed,"  Part  of  "Compensa- 
tion."      1301 

§  2108.  Trustee's    Compensation    1301 

§  2109.   Commissions    Computed    on    Disbursements    for    Expenses    and    to 

Creditors     1301 

§  2110.  Except  That  in  Composition  Cases  Computed  Only  on  Disburse- 
ments to  Creditors    1302 

§  2111.  Whether  "Disbursement"  Includes  Proceeds  of  Property  and  Trust 
Funds    Surrender   to   Adverse    Claimants,   and    Exempt    Property 

Sold   by   Trustee    ; 1302 

§  2112.   Entitled   Even   Where   Outside   Agreement   to   "Credit"    Exists   and 

Actual   Money  Does  Not  Pass    1302 

§  2113.  No  Absolute   Right  to  Full   Commissions:    Less    May   Be  Allowed 

or  Allowance  Withheld  1303 

§  2114.  Apportionment  Where  Three  Trustees  or   Successive  Trustees....  1303 

§  2115.  Extra  Compensation  for  Conducting  Business    1303 

§  2116.  But  Not  to  Exceed  Rate  for  Trustee's  Ordinary  Services 1304 

§  2117.  No  Additional   Compensation  Allowable  in  "Any  Form  or   Guise."  1305 

§  2118.  Receiver's    Compensation    1306 

§  2119.  Receiver's  Maximum  Allowance  Properly  Not  to  Exceed  Trustee's.  1306 

§  2120.  Appeal  and  Review  of  Expenses,  and  Cost  of  Administration 1308 

§  2121.  Appraisers'    Fees     1308 

§  2122.  Witness   Fees  and   Mileage    1308 

§  2123.  Bankrupt  Not  Entitled  to  Witness  Fees   1308 

§  2124.  But  to  Reimbursement  of  Actual  Expenses  Where  Attending 1309 

§  2125.  But  Where  Voluntary  Removing  Residence  after  Bankruptcy  In- 
stituted     .' 1309 

§  2126.  Whether  Officers  and  Directors  of  Bankrupt  Corporation   Entitled 

to  Witness  Fees    1309 

§  2127.  Witness  Fees  for  Attendance  without  Subpoena  Equally  Allowable.  1309 

§  2128.  Amount   of  Witness    Fee    1309 

§  2129.  Marshal's    Fees    : ' 1310 

§  2130.   Marshal   May  Demand  Indemnity    1310 

§  2131.  May    Charge    Reasonable    Fee    for    Service    on    Petition    to    Show 

Cause    1310 


TABLE  OF  CONTENTS.  IX 

§  2132.  Marshal   and   Receiver   Entitled   to   Reasonable    Compensation,    Be- 
sides  Expenses,  on  Seizure  under  §  2   (3)    1310 

CHAPTER  XLI. 
Distribution  to  Creditors. 

^  2133.  Distribution     1317 

§  2134.   Order  of  Priority  in  Distribution  Prescribed  by  Act 1317 

§  2135.  Priority    Xot    Lost    by    Taking    Judgment,    nor    by    Assignment    of 

Claim     1317 

§  2136.  Not  Lost  Where  Claim  Also  a  Secured  Debt 1318 

§  2137.  Mere  Judgments   Not  Entitled  to   Priority  as  Such 1318 

§  2138.  "Proof"  of  Priority  Claim  Requisite,  Except  for  Taxes,  etc 1318 

§  2139.  No  Special  Form  of  Proof  nor  Assertion  of  Demand  Requisite....  1318 

§  2140.  "Dividends"  on  Priority  Claims  Where  Funds  Insufficient 1319 

§  2141.  Taxes     1319 

•§  2142.  Assessed   before   Bankruptcy   Though    Not   Payable   until   after   Ad- 
judication,   Nevertheless    "Due    and    Owing" 1321 

§  2143.   Back  Taxes,   Omitted,   to    Be   Paid 1321 

§  2144.  Delinquent    Penalties    and    Interest 1321 

f  2145.  Taxes  to  Be  Paid  Whether   Propert}-   Comes   into  Trustee's  Hands 

or    Not    1322 

§  2146.  Taxes   on    Exempt   Property   to    Be   Paid 1323 

§  2147.  Taxes  to  Be   Paid'  Out  of  General   Fund  Though   Only   One   Bene- 
fited Is  Mortgagee,  Purchaser,  etc 1323 

§  2148.   But   Such   Absolute  Priority  Belongs   Solely  to   State,    Municipality, 

etc.,  Not  to  One  Who  Has  Paid  or  Holds  Tax  Title 1325 

§  2149.  "Subrogation"   to  Tax  Lien  Sometimes   Proper 1327 

■§  2150.   Must  Be  Owing  by  Bankrupt  and  Assessed  against  Him 1328 

§  2151.   Firm  Taxes  in  Individual  Bankruptcies 1329 

§  2152.   Funds   in   Hands   of  Trustee   Taxable,    Where   Taxable   if   Similarly 

Sequestrated  by   State    Legal    Proceedings 1329 

§  2153.  "Tax"  Includes  Assessment  for  Local   Improvements 1330 

§  2154.  Nature  of  Tax.  Whether  License,  Penalty  or  Tax,  Generally  Deter- 
mined by   State   Law 1330 

I  2155.   But  Not  Always 1330 

?  2156.  Thus,    Franchise    Tax 1331 

§  2157.  But  Bankruptcy  Court,  Forum  as  to  Amount  and  Legality  of  Tax..  1332 
I  2158.  And  Decision  of  State  Board  of  Assessment  Not  "Res  Judicata"..  1332 
§  2159.  Nor   Is   Failure  to   Pursue   Statutory  Appeal   or  Abatement   Fatal..  1332 

§  2160.  Whether   Taxes   "Provable"    Debts 1333 

§  2161.  No  Formal  "Proof"   Required:   Trustee   Must   Search   for  Taxes 1334 

§  2162.  Year's  Limitation  for  "Proofs"   Not  Applicable  to  Taxes 1334 

?  2163.  Tax  Not  Such  "Secured"  Claim  as  Requires  Exhaustion  of  Security.  1335 

§  2164.  Wages  of  Workmen,   Clerks   and   Servants 1335 

§  2165.   Must   Be   "Wages"  and  Be   "Due"   and   "Earned" 1335 

§  2166.  Thus.  No  Priority  for  Damages  for  Breach  of  Contract  of  Employ- 
ment      1335 

§  2167.   Only  "Workmen,"  "Clerks"  or  "Servants"   Entitled 1336 

§  2168.  Relationship    between    Parties    Governs    and    Not    Solely    Kind    of 

Work    1336 

§  2169.  "Workmen,"  "Clerks"  and  "Servants"  to  Be  Given  Ordinar}^,  Popu- 
lar   Meaning    1336 


X  TABLE  OF  CONTENTS. 

S  2170.  "Traveling  Salesmen"  also  Entitled  to  Priority 1338 

§  2171.  Definition  of  "Wage  Earner"  in  §§  1  and  4  Not  Criterion  Here 1338 

§  2172.  Thus,  Independent  Contractors  Not  Entitled 1338 

§  2173.  Exclusive  Employment  by  One  Person   Not   Requisite 1339 

§  2174.  But  Employment  by  Several  Tends  to  Show  Independent  Con- 
tractor  1339 

§  2175.  "Piece  Workers"  May  Be  Entitled 1340 

§  2176.  Idea  of  Subordination  Implied 1340 

§  2177.   Correlative  Obligations  to  Serve  Implied 1341 

§  2178.  Must  Be  Performed  within  Three  Months  before  Bankruptcy 1341 

§  2179.  Whether  Maj^  Be  for  Services  Covering  Longer   Period  if  Priority 

Claimed  Not  under  §  64  (b)  (4)  but  under  §  64  (b)   (5) 1341 

§  2180.  Not   to   Exceed   "Three    Hundred  Dollars" ' 1342 

§  2181.  But  Perhaps  for  IMore  if  Priority  Claimed  Not  under  §  64   (b)    (4) 

but   under  §   64    (b)    (5) 1342 

§  218?.  Reducing  Claim  to  Judgment,  Not  Such  Merger  as  to  Lose  Priority..  1342 

§  2183.  Nor  Is  Priority   Lost  by  Assignment  of   Claim 1342 

§  2184.  Subrogation  of  Persons  Advancing  Money  to  Meet  Pay  Rolls 1344 

§  2185.  Due  "Proof"  to  Be  Made  of  Priority  Claim 1344 

§  2186.  Wages  Claims  "of  Workmen,  Clerks  and  Servants"  No  Precedence 

over  Valid   Prior    Liens 1344 

§  2187.  Priorities   Granted  by  State  and  Federal   Laws 1345 

§  2188.  "Priority"  to  Be  Distinguished  from  "Liens" 1345 

§  2189.  Federal  and  State  Government  and  Municipality,  as  Priority  Claim- 
ants      1345 

§  2190.  Priority  Given  to  "Any  Person"  by  United  States  Law  Preserved..  1346 

§  2191.  Government    Contracts     1346 

§  2192.  No  Proof  of  Claims  Requisite  by  Government  to  Secure  Priority..  1346 
§  2193.  Year's   Limitation   for   Proving  Claims   Not   Applicable  to   Govern- 
ment      1346 

§  2194.  State  Law  Priorities  Adopted  Where  Claimants  Not  in  Classes  Al- 
ready Covered  by  Express  Bankruptcy  Priorities 1346 

§  2195.   State    Priorities    to    Laborers,    Where    Different    from    Bankruptcy 

Priorities 1347 

§  2196.  Whether   State   Priorities   in  Cases   of   Assignments,   Receiverships, 

etc..  Preserved  When  Custody  Superseded  by  Bankruptcy 1347 

§  2197.  Wliether  State  Priorities  Dependent  on  Resort  to  Particular  Reme- 
dies, Such  as  Insolvency  or  State  Bankruptcy  Proceedings,  to  Be 

Recognized     1349 

§  2198.   Rule  Adopting  State  Priorities,  Not  to  Override  §  67  "f"  Annulling 

"Legal"    Liens    1351 

§  2199.  But  Claimant  Must  Comply  with  All  Regulations  and  Prerequisites 

of    State    Priority 1352 

§  2200.  Whether,  Where  Bankruptcy  Prevents,  Compliance  Dispensed  with, 
or  Levy  Permitted  and  Discharge  Stayed  to  Enable  Perfecting  of 

Priority     4 1353 

§  2201.  Trustee   Cannot   Perfect   Priority   Claims 1353 

§  2202.  Relative  Precedence  among  State   Priorities   Preserved 1353 

§  2203.  Where  Both  State  Law  and  Bankrupt  Act   Gives  Priority  to  Same 

Class,   Bankrupt   Act   Excludes    State   Law 1354 

§  2204.  Landlord's    Priorities    1356 

§  2205.  Priorities  for  Furnishing  Supplies  and  Materials  for  Manufacturing 
Establishments:  Fiduciary  Debts  as  Guardian:  Community  Prop- 
erty of  Husband  and  Wife,   etc 1357 


TABLE  Of  CONTENTS.  XI 

§  2206.  Dividends  to  General  Creditors 1358 

§  2207.  To  Be  Paid  in  Two  Dividends 1358 

§  2208.  Purpose  of  Two  Dividends  Protection  of  Dilatory  Creditors 1358 

§  2209.   First    Dividend    1359 

§  2210.  Dividend    within    Thirty    Daj-s    after    Adjudication    Required    Only 

Where  Money  in  Estate 1359 

§  2211.   Subsequent    Dividends    1359 

§  2212.  Dividends  Need  Not  Be  Returned  because  of  Filing  of  Subsequent 

Claims     135« 

§  2213.  Claims  Subsequently  Filed,  to  Receive  Prior  Dividends  before  X^ew 

Dividend   Declared    1359 

§  2114.  Need  Not  Retain  Funds  until  Expiration  of  Year's  Limitation  for 

Proving   Claims    1360 

§  2215.  "Ten    Days    Notice"    of    "Dividends" 1360 

§  2216.  "Dividend  Sheets"    1360 

§  2217.  Unclaimed   Dividends    1360 

§  2218.  Contracting  to   Postpone   One's   Dividend  to  That  of   Other   Cred- 
itors     1361 

§  2219.  Adjusting   Equities    in   Dividends   among    Creditors 1361 

§  2220.  Postponing   Dividends    of    Some    Creditors    to    Others,    Because    of 

Equities     1361 

'§  2221.  Thus,  Dividing  Fund,  on  Setting  Aside  Void  Transfer,  Solely  among 

"Subsequent"    Creditors    1362 

§  2222.  Requiring  Surrender  of  Illegal  Advantage  before  Allowing  to  Share 

in   Dividends 1363 

§  2223.  Requirement  of  Surrender  of  Preferences  before  Allowing  to  Share 

in   Dividends    1363 

§  2224.  Dividends   Not  to  Be   Subjected  by   Garnishment 1363 

§  2225.  But  Probably  May  Be  by  Equitable  Action 1363 

§  2226.  Bankruptcy  Court  No  Jurisdiction  to  Entertain  Such  Action 1363 

§  2227.  If  Bankrupt   Garnishee,   Trustee   to  Respond 1363 

§  2228.  Bankruptcy  Court  Has  Jurisdiction  over  Attorneys'   Lien  Claims..  1364 

§  2229.  Attorney's    Right    to    Lien .- 1364 

§  2230.  In    General    1364 

§  2231.  Where  Partnership  Bankrupt,  Individual  Estates  Brought  in  Though 

Individuals  Not  Adjudged  Bankrupt 1365 

§  2232.  And    "Consent"    Not    Necessary 1366 

§  2233.  Partnership  Trustee,  Trustee   Also  of  Individual   Estates 1366 

§  2234.  Separate  Accounts  to  Be  Kept  and  Joint  Expenses  Apportioned..  1367 
§  2235.  Property  Originally   Individual,   Becoming  Partnership,  to  Be  Ad- 
ministered   as    Such 1367 

§  2236.  Agreement  Not  Necessarily  Express 1367 

§  2237.  Partnership   Debts  "Provable"   against   Individual   Both   in   Partner- 
ship   and   in    Individual    Bankruptcy,    Likewise    Individual    Debts 

against    Partnership    1368 

§  2238.  Partnership    Creditors    to    Exhaust    Partnership    Assets,    Individual 
Creditors    Individual    Assets;    Each    Sharing    in    Other    Only    in 

Surplus     1368 

§  2239.  Section  5  Refers  Only  to  Actual  Partnerships,  Not  Those  by  "Hold- 
ing   Out"     1370 

§  2240.   Obligations  Signed  by  Firm  in  Firm  Name,  Prima  Facie  Allowable 

as   Firm   Debts 1370 


XII  TABi,E  OF  conte;nts. 

§  2241.  Individual  Debt  Assumed  by  Firm  Provable  against  Partnership  if 

Sufificient    Consideration    1370 

§  2242.   But  Assumption  Must  Be  Acquiesced  in  by  Creditors 1371 

§  2243.  Loan  to   Enable  Partner  to   Furnish  Contributor}'   Share   Not   Firm 

Debt     1371 

§  2244.   Mere  Joint  Obligations,  Not  Amounting  to  Partnership  Debts,  Not 

Allowable,  on  Par  with   Firm  Debts 1371 

§  2245.  Parol  Evidence  Admissible  to  Show  Obligations  Apparently  Indi- 
vidual, to  Be   Firm   Debts 1373 

§  2246.  Partnership  Released  by  Creditor's  Acceptance  of  Individual  Obli- 
gation      1372 

§  2247.  Secret   Partner's   Claim.   Not   Debt   against   Partnership 1373 

§  2248.  Trustee  in  Individual  Bankruptcy  of  Partner  Not  to  Interfere  with 

Firm  Assets,  without  Consent 1373 

§  2249.  Member    Bankrupt,    but    Partnership    Not,    Remaining    Partners    to 

Account  for  Bankrupt's  Share 1373 

§  2250.  In  What  Court  Trustee  to   Seek  Accounting 1373 

§  2251.  Partnership  Affairs  Not  to  Be  Administered  in  Individual  Bank- 
ruptcy,   Except    by    Consent 1373 

§  2252.  But   May  Be   So  Administered  if  Nonbankrupt   Partner   Consents..  1374 

§  2253.  "Consent"   a  Question  of   Fact 1374 

§  2254.   Partnership  Property   Comes  into   Individual  Bankruptcy   Burdened 

with  Lien  in  Favor  of  Firm  Creditors 1374 

§  2255.  Individual  Creditors  Exhaust  Individual   Property,    Firm   Creditors, 

Firm   Property — Each   Sharing  Only  in  Any  Surplus   of  Other..  1375 

§  2256.  Even  Where  No  Partnership  Assets 1376 

§  2257.   Even  Where  No  Partnership  Assets  and  All  Partners  Insolvent..  ..  1376 

§  2258.  Joint  and  Several  Obligations  for  Partnership  Debt,  Share  in  Indi- 
vidual   Estate    1383 

§  2259.   Partner's   Right   of   Contribution   for   Paying  Firm   Debts,   Provable 

in    Other    Partner's    Bankruptcy 1385 

§  2260.  On  Marshaling  Partnership  and  Individual  Estates  Solvent  Part- 
ner's  Excess   Contribution   Provable   against    Individual   Estate..  1385 

§  2261.  Likewise,  Partner's  Right  of  Indemnity  (Where  Surety)  for  Paying 
Copartner's  Individual  Debt  Provable  against  Copartner's  Indi- 
vidual Estate,  Entitling  to  Subrogation  to  Creditor's  Claim 1385 

§  2262.  But  Claim  of  Retiring  Partner  for  Unpaid  Purchase  Price  of  Part- 
nership Share,  Not  to  Share  with  Partnership  Creditors  in  Surplus 
of  Remaining   Partner's   Individual   Estate 1385 

§  2263.   Obligation    Signed    in    Individual    Name,    Prima    Facie    Individual 

Debt 1386 

§  2264.  Firm  Debt  Assumed  by  Partner,  Provable  against  Partner's  Indi- 
vidual   Estate 1386 

§  2265.  "Preferences"  and  "Legal  Liens"  on  Individual  Property  Not  Nulli- 
fied by  Firm  Bankruptcy;  and  Vice  Versa 1386 

§  2266.  Thus,  "Legal   Liens"  within   Four  Months,   on   Individual   Property, 

Not   Affected   by   Partnership    Bankruptcy 1386 

5  2267.  Nor  Are  Similar  Liens  on  Partnership  Property  Affected  by  Indi- 
vidual   Bankruptcy    1386 

§  2268.  Nor  Are  "Transfers"  by  Partnership  Voidable  as  "Preferences,"  by 

Bankruptcy    of    Partner 1387 

§  2269.   First,   Where   One   Partner  in   Insolvent    Firm   Sells    Out   to   Other 

Who  Thereafter  Becomes  Bankrupt 1387 


TABLE  OF  CONTENTS.  XIII 

§  2270.   But  if  Partnership   Creditors  Assent  to   Assumption,  Th^y   Become 

Individual  Creditors    1388 

§  2271.  Where  Sale  Made  to  Enable  Remaining  Partner  to  Claim  Exemp- 
tions      1389 

§  2272.   Retiring   Partner,   Surety   for   Remaining   Partner,   Entitled   to    Sub- 
rogation to  Debts   He  Pays 1390 

§  2273.  But  Retiring  Partner's   Claim  for  Purchase   Price  of  Share,   Not  to 
Compete  with  Firm  Creditors  in  Individual  Estate  of  Remaining 

Partner    1391 

§  2274.  Whether   "Preferential"    Transfer   by    Partnership    Voidable   Where 

Remaining   Partner    Alone    in    Bankruptcy 1391 

§  2275.   Second,  Where  One  Partner  of  Insolvent  Partnership  Sells  Out  to 

Other   and    Himself    Becomes    Bankrupt 1391 

§  2276.  Third,   Where    Partnership   Interest   Transferred   to   Third   Persons, 

Partner  Becoming  Bankrupt 1392 

§  2277.  Subrogation   by   Assignment  of   Claims   after   Bankruptcy 1392 

§  2278.  Subrogation  by  Agreement  with   Bankrupt  or   Creditor 1392 

§  2279.  Whether   Subrogation   to    Workmen's    Priority    Claims   to    Compete 

with  Workmen's  Own  Later  Claims 1393 

§  2280.   Subrogation   of   Sureties   for   Bankrupt   to   Creditors'   Rights   and   of 

Creditors    to    Indemnity    Given    Sureties 1395 

§  2281.   Subrogation  of   Interested   Party,   Paying  to   Preserve   Assets 1395 

§  2282.  Mere  Volunteers   Not  Entitled  to   Subrogation 1396 

§  2283.  No  Subrogation  of  Trustee  to  Liens  on  Exempt  Property  Paid  Off 

on    Eve    of    Bankruptcy 1396 

§  2284.  Distribution  to  Be  Based  on  Order  of  Court 1396 

§  2285.  Trustee's    Reports    1397 

§  2286.   Form   of   Trustee's    Reports 1397 

§  2287.   Review    of    Order   Approving   Trustee's    Report    and   Allowing    Ex- 
penses  and   Commissions 1398 

§  2288.  If  Meeting  Called  to  Consider  Report,  Ten  Days'  Notice  Requisite...  1398 

§  2289.  Also,-  If  Dividend  to   Be   Declared 1398 

§  2290.   Contents   of   Notice 1398 

§  2291.  Auditing    of    Accounts 1398 

§  2292.  At  Time  and  Place  Set,  Report  to  Be  Passed  on,  Expenses  Allowed, 

Dividends    Declared   and   Distribution   Ordered 1399 

§  2293.   Exceptions  to   Reports  and  Orders  of   Distribution 1399 

§  2294.  Exceptions  to  Accounts  to  Be  Filed  Promptly 1399 

CHAPTER  XLII. 

CivOsiNG  AND  Reopening  of  Estates. 

§  2295.  Final   Report  and   Final   Meeting 1400 

§  2296.  Ten  Days  Notice  of  Final  Reports  and  Final  ^Meetings 1401 

§  2297.  Trustee's  Duty  to   File   Final  Report 1401 

§  2298.  Estate  Closed  by  Order  Approving  Trustee's  Report  and  Discharg- 
ing Trustee  from  His  Trust 1401 

§  2299.  Certifying  to  Referee's  Record  and  Transmission  to  District  Clerk..  1401 

§  2300.  Jurisdiction   to    Reopen    Estates 1401 

§  2301.  Only  One  Ground  for  Reopening — Lack  of  Full  Administration....  1402 

§  2302.  Duty  of   Court  to   Reopen  on  Proper   Showing 1402 

§  2303.  But   Reopening,   Matter  of   Sound   Discretion 1402 


XIV  TABLE  OF  COXTEXTS, 

§  2304.  What  Is  Lack  of  "Full"   Administration 1402 

§  2305.  No  Time  Limited  for  Application  to  Reopen 1402 

§  2306.  But  Must  Be  within  Reasonable  Time:    Laches  Will  Bar 1403 

§  2307.  Application  Not  a  "Suit"  within  §  11   (d)   Limiting  "Suits"  to  Two 

Years     1403 

§  2308.  Procedure:    Application  to   Be   to  Judge '. 1403 

§  2309.  No  Formality  Requisite  in  Application 1403 

§  2310.  But  Not  to   Be   Indefinite:    Should  Be  Verified   and    Show   Assets 

Unadministered  or  Other  Lack 1403 

§  2311.  Who  May  Apply:    Only  Creditors  Who  Have  Proved  or  Alay  Prove 

Claims,    Competent    1404 

§  2312.  Who   May   Oppose   Reopening 1404 

§  2313.  Whether  Third  Party  Who  Has  Interests  in  Property  Competent..  1404 
§  2314.  Trustee  Elected  Anew  and  Administration  to  Proceed  in  Usual  Man- 
ner      1404 

§  2315.  Reopening  Does  Not  Toll  Year's  Limitation  for  Proof  of  Claims..  1405 

PART  Mil. 
Crimes  axd  Coxtempts. 

CHAPTER  XLIII. 

Crimes  agaixst  the  Baxkrupt  Act. 

§  2316.  Crimes    against   the   Act 1409 

§  2317.  Section  29  Penal  and  to  Be  Strictly  Construed 1410 

§  2318.  Acts  Committed  before  Bankruptcy  Not  within  Statute 1410 

§  2319.   Continuing    Concealment     1410 

§  2320.  Whether  an  Ofifense,  if  Committed  before  Trustee  Appointed 1411 

§  2321.  Indictment  to  Be  Specific  and  to  Contain  All  Essential  Elements..  1411 

§  2322.  Indictment  for  False  Oath  to  Aver  Falsity  .and  Scienter 1412 

§  2323.  Schedules  of  Bankrupt  Not  to  Be  Used  before  Grand  Jury 1412 

§  2324.  Immunity  from  Use  of  Bankrupt's  Testimony,  Effectual  Obstacle  to 

Conviction    for    Perjury 1412 

§  2325.  Others  than  Bankrupt  Indictable  for  "False  Oath" 1412 

§  2326.  But    Only    Bankrupt    Indictable    for    Concealment    of    Assets    from 

Trustee    1412 

§2327.  Essential   Elements   in   Proof  of  "False   Oath" 1413 

§  2328.  In  Proof  of  "Concealment  of  Assets" 1413 

§  2329.  Advice    of    Counsel 1413 

CHAPTER  XLIV. 

Coxtempts. 

§  2330.  Contempt,  What  Constitutes,  in  General 1414 

§  2331.  "Willfully   Evasive"    or   "Flagrantly   False"    Testimony   in    Face   of 

Court,  Contempt   1416 

§  2332.  Contemp-t  Not  in  Presence  of  Court 1417 

§  2333.  Advice    of    Counsel 1417 

§  2334.  Contempt  before  Referee,  What  Constitutes,   Defined  by  Statute..  1417 

§  2335.  Referee   Has   No   Power  to   Commit 1418 

§  2336.  Referee   Simply  to   Certify   Facts   to  Judge 1418 

§  2337.  Making  of  Certificate,  Judicial  Act,  Not  Ministerial  Duty 1418 


TABLE  OF  CONTENTS.  XV 

§  2338.  Judge  to   Hear  and  Punish,  if  Contempt  Committed 1419 

§  2339.  Power  to  Commit,   Cautiously  Exercised 1419 

§  2340.  Evidence  to  Be  beyond  Reasonable  Doubt 1419 

§  2341.  No    Punishment   for    Failure    to    Comply   with    Order   until    Oppor- 
tunity  Given   to    Show   Inability ^ 1419 

§  2342.  Review  of  Refusal  to  Certify 1419 

§  2343.  Not    Reviewable    by '  Habeas    Corpus 1419 

§  2344.  Order  of  District  Judge  Not  Reversed  Except  for  Clear  Error 1419 

PART  IX. 

Composition  with  Creditors. 

CHAPTER  XLV. 
Nature  and  Effect  of  Composition. 

§  2345.   Composition  Simplj^  Different  Method  of  Administering  Estate  and 

Realizing  on  Same  for  Creditors 1423 

§  2346.   Effect  of   Composition,   in   General 1424 

§  2347.  Composition  Restores  Estate  to  Debtor 1424 

§  2348.  Pendency  of  Petition  for  Confirmation  Suspends  Sale  and  Distribu- 
tion  of   Assets    1425 

§  2349.  Confirmation  of  Composition  in  Effect  a  Discharge 1426 

§  2350.  Release  of  Debts  Is  by  Operation  of  Law  and  Not  by  Consent..  ..  1427 
§  2351.  Claims   "Provable,"   Though   Not   Actually  "Proved,"   Discharged. .  1427 

§  2352.  But  Must  Be  "Duly  Scheduled." 1427 

§  2353.  "Duly    Scheduled" — As    to    Time — Difference    in    Composition   from 

What   It   Is   in   Discharge 1427 

§  2354.   Right  to  Composition  and  Effect  of  Composition,  Distinct   1428 

CHAPTER  XLVI. 

Procedure  on  Composition, 

§  2355.  Offer  of  Composition   1429 

§  2356.   Statute  Strictly  Construed  and  All   Requirements   to   Be   Fulfilled..  1430 
§  2357.   Irregular    Compositions    and    Settlements    in    Other    than    Statutory 

Manner     1430 

§  2358.  Special  Meeting  for  Presentation  of  Offer    1431 

§  2359.  Examination  of  Bankrupt  and  Filing  of  Schedules  Requisite  before 

Offer    1432 

§  2360.   Offer  to  Be  Accepted  in   Writing   1432 

§  2361.  Offer  to  Be  Accepted  by  Majority  in  Number  and  Amount  of  Al- 
lowed  Claims    1432 

§  2362.  Creditors  Once  Accepting  May  Not  Withdraw,  Except  for  Fraud  or 

Misrepresentation    1433 

§  2363.  Petition  for  Confirmation  of  Composition,  When  May  Be  Filed....  1434 

§  2364.  Designation  of  Amount  and  Place  of  Deposit 1434 

§  2365.  Deposit  to   Be   Sufficient   to   Pay  All   Costs  and   Priority   Claims   as 

Well  as  Consideration  to  Creditors    1434 

§  2366.  Must  Cover  All  Claims  Filed  and  All  Schedules   1434 

§  2367.  Whether  Must  Cover  Deficiency  of  Secured  Claims  Not  Yet  Filed..  1434 

§  2368.  What   Costs   Provided   for   in    Composition 1435 

§  2369.  Whether  Consideration  Always  to  Be  in  Money  1435 


XVI  TABI.E  OF  CONTENTS. 

§  2370.   Form  of  Application  for  Confirmation  of  Composition   1435 

§  2371.  Ten  Days  Notice  by  Mail   to   Be  Given    1436 

§  2372.   Hearing  on  Petition  for  Confirmation  of  Composition    1436 

§  2373.   Only   Judge   to   Pass   on   Application 1436 

§  2374.  But  May  Refer  Issues  to  Referee  as  Special  ]\Iaster   1437 

CHAPTER  XLVII. 
Opposition  to  Conformation  of  a  Composition. 

§  2375.  Only  Creditors  May  Oppose  Confirmation:    Trustee  May  Not 1438 

§  2376.   Court  !May  Refuse  Confirmation  without  Appearance  of  Any  "Party 

in  Interest"  Where  Procedure  Irregular   1439 

§  2377.  Procedure  on   Opposition  to   Composition   Similar  to  That   on  Dis- 
charge      1439 

§  2378.   Entry  of  x\ppearance   Requisite 1440 

§  2379.  Ten  Days  Time  after  Appearance,  for  Filing  Specifications 1440 

§  2380.  Form  and  Allegations  of  Specifications;  Similar  to  Discharge 1440 

§  2381.  Three  Grounds  of  Opposition   1440 

§  2382.   Statutory  Grounds   Requisite  to   Bar   Confirmation  on   ^lerits    1441 

§  2383.  Burden  of  Proof  on  Opposing  Creditor    1441 

§  2384.  First  Ground — "Not- for  Best  Interests  of  Creditors."    1441 

§  2385.  Test  of  "Best  Interest"— Whether  More  Could  Be  Realized  by  Or- 
dinary   Administration     1441 

§  2386.   Creditors'  Acceptance  of  Offer  Xot  to  Be  Lightly  Interfered  with..  1442 
§  2387.  Second  Ground — Commission  of  Act  Barring  Discharge,  Bars  Com- 
position      1443 

§  2388.  Third  Ground — Offer  or  Acceptance  Xot  in  Good  Faith  or  Procured 

Improperly    1444 

CHAPTER  XLVHI. 

Distribution  and  Proceedings  after  Confirmation  in  Composition 

Cases. 

§  2389.  Distribution,  upon  Confirmation  of  Composition    1445 

§  2390.  Judge   Directs    Manner   of  Distribution    1445 

§  2391.   Referee   Divested   of  Jurisdiction   by    Confirmation   of    Composition 

Excepted  as  Otherwise  Ordered  by  Judge 1445 

§  2392.  Distributing  Agent  Usually  Appointed    1446 

§  2393.  All  Creditors  to  Share,  Whether  Proofs   Filed  or  Allowed  or   Not, 

unless   Limited  by   Order  of  Distribution    1446 

§  2394.  Whether  Bound  by  Year's   Limitation  for  Filing  Claims    1446 

§  2395.  Secured  Creditors  to  Participate  to  Amount  of  Deficit 1448 

§  2396.  But  Judge  May  Limit  Time  and  Require  Filing  of  Proofs  of  Claims.  1449 

§  2397.  Closing  of  Case  after  Distribution   Completed   1449 

§  2398.  Jurisdiction   to    Determine    Ownership    of    Property    in    Custody    of 

Court   Not   Divested    1449 

CHAPTER  XEIX. 
Setting  Aside  of  Composition. 

§  2399.   Court's  Power  to  Set  Aside  Confirmation  for  Irregularity    1451 

§  2400.  Setting  Aside  Confirmation  on  Application  of  Parties    1451 


table;  op  contents.  XVII 

§  2401.  Must  Be  Applied  for  within  Six   Months    145^ 

§  2402.  What   Not   Estoppel   of   Creditor    1452 

§  2403.  Burden  of  Proof  on   Creditor    145^ 

§  2404.  Only  "Parties  in  Interest"  Competent  to  Petition  for  Setting  Aside.  143^ 
§  2405.  Principles  and  Practice  on  Revocation  of  Discharge,  Whether  Ap- 
plicable     145^ 

§  2406.   Petition  to  Set  Aside  Composition 1453 

§  2407.  Leave   to   File   Petition   Granted   unless   Lack  of   Merit  Appears   on 

Face     145S 

§  2408.   Consideration  Need  Not  Be  Tendered  Back    145-j 

§  2409.   Ignorance  of  Fraud   Sufficiently   Alleged  in   General   Terms 1453: 

CHAPTER  L. 

AppExXLS  of  Composition  Mattijrs. 

§  2410.  Appeals   of    Composition    Matters    1454 

§  2411.  Whether  Appeal,  Only  Method  of  Review 1454 

§  2412.  Who    May    Appeal     1454 

§  2413.  Refusal  to  Confirm  Not  to  Be  Reversed,  Except  for  Abuse  of  Dis- 
cretion     1455 

PART  X. 
Discharge. 

CHAPTER  LI. 

Nature  and  History  of  Discharge. 

§  ^414.   Discharge    1459 

§  2415.   Discharge  a  Distinct  Incident,  Not  an  Essential,  of  Bankruptcy..  ..  1459 
§  2416.   May  "Go  into"  or  Be  "Thrown  into"  Bankruptcy  Repeatedly,   Irre- 
spective of  Refusal  or  Granting  of  Discharge    1461 

CHAPTER  EH. 
Petition  for  Discharge. 

§  2417.  Petition    for    Discharge    ■ 1464 

§  2418.  Any  Person  Adjudged  Bankrupt,  Competent  to  Apply  for  Discharge.  1464 

§  2419.   Corporations   Entitled  to  Discharge    ■  • .  1464 

§  2420.  Intervening  Insanity  Does  Not  Affect  Right  to  Discharge 1464 

§  2421.  Neither   Does   Intervening  Death    1465 

§  2422.  No  Discharge  of  Individual  in  Partnership  Bankruptcy  unless  Indi- 
vidual  Adjudication    1465 

§  2423.  Discharge  Petition  to  Be  Filed  after  One  Month  and  before  End  of 

Year   from    Adjudication    1465 

§  2424.  Extension  of  Time   Granted   1465 

§  2425.  But  to  Be  Applied  for  before  Expiration  of  Time    1465 

§  2426.  And  Only  Because  "Unavoidably  Prevented:"  and  "Nunc  Pro  Tunc" 

Orders  to   Cover  Laches   Improper    1463 

§  2427.  No    Jurisdiction    to    Discharge,    on    Petition    Filed    after    Eighteen 

Months     1466 

§  2428.  Referee  Need  Not  Notify  Bankrupt  to  File  Petition  for  Discharge.  1467 

2  Rem— b 


XVIII  TABLE  OF  CONTI<;nTS. 

§  2429.  Form  of  Petition  for  Discharge   1467 

§  2430.  Whether   Petition   to   Be   Verified    1468 

§  2431.  Ten  Days  Notice  by  Mail,  Sent 1469 

§  2432.  Notice  Also  by  Publication    1470 

§  2433.  Dismissal  of  Petition  for  Want  of  Prosecution  or  by  Bankrupt....  1470 

§  2434.  No  Dismissal  for  Failure  to  Bring  on  Hearing  in  Opposition 1470 

§  2435.   No  Dismissal  by  Bankrupt  after  Hearing  of  Specifications  in  Oppo- 
sition     1470 

§  2436.  Dismissal   of  or  Failure  to  File   Petition  for  Discharge,  in   Effect  a 

Judgment   Denying  a   Discharge    1470 

§  2437.  Second    Petition    Not   Maintainable    after    Refusal    of    First,    Where 

Debts  .  Identical    1471 

§  2438.  Quaere,  Where  Debts  in  Subsequent  Bankruptcy  Partly  Same,  Partly 

New,  and  Discharge  in  First  Bankruptcy  Refused   1474 

§  2439.  Refusal  of  Discharge  under  Former  Bankruptcy  Act  Not  Res  Judi- 
cata under  Present  Act    1476 

§  2440.  Refusal  of  Discharge  under  State  Bankruptcy  or  State  Insolvency 

Law  Not  Res  Adjudicata  as  to  Same  Debt  in  Federal  Bankruptcy.  1477 
§  2441.  Refusal  of  Discharge  No  Bar  to  Subsequent  Bankruptcy  Petitions 

nor    Adjudications     1477 

§  2442.  Discharge  Not  Impeachable  Collaterally 1477 

§  2443.   But  Avoiding  Effect  of  Discharge  by  Showing  Debt  Excepted  from 

Its  Operation,  Not  "Collateral  Attack."    1477 

§  2444.  Nor   "Attack"    at   All    1477 

§  2445.  Bankrupt  Cannot  Voluntarily  Surrender  Discharge   1477 

§  2446.   Staying    Discharge    to    Permit    Creditor    to    Perfect    Rights    against 

Surety   or    Exempt    Property    1478 

CHAPTER  LIII. 
Opposition  to  Discharge. 

§  2447.   Opposition    to    Discharge    1485 

§  2448.  Entry  of  Appearance  and   Filing  of  Speci'fications    .». .  1485 

§  2449.  Entry  of  Appearance  on  Time'Essential   1486 

§  2450.  Appearance  May  Be  by  Attorney   1486 

§  2451.   Entry  of  Appearance  Gives  Ten  Days  Time  to   File   Specifications.  1486 

§  2452.  Specifications  to   Be   Filed  in  Writing    1486 

§  2453.  Not   Filed   within   Ten   Days,   Dismissed    1486 

§  2454.  Time   Extended   but   Only   for   Good   Cause 1486 

§  2455.   Bankrupt    to    Attend    Hearing;     No    Order    Necessary;     No    Reim- 
bursement  of   Expenses    1487 

§  2456.   Death   Not  to   Abate   Opposition   Proceedings    1487 

§  2457.  Who  May  Oppose  Discharge — Court  Itself,  Not 1487 

§  2458.  Trustee,    Not 1488 

§  2459.  Any  "Party  in  Interest,"  and  Only  Such,  May  Oppose   1488 

§  2460.  Must  Have  Pecuniary  Interest   1488 

§  2461.  Need  Not  Have  Proved,  nor  Have  "Provable,"  Claim    1488 

§  2462.  Whether  Other  than  One  from  Whom  Property  Obtained  by  False 

Representations   May  Oppose  on  That   Ground    1489 

§  2463.  Whether   Objecting   Creditor's   Loss   of   Capacity   Pending   Hearing, 

Compels   Dismissal  of  Specifications    1489 

Q  2464.   Opposition   to   Discharge    Not   Criminal    Prosecution,   and    Criminal 

Law  Rules  Not  Applicable    1489 


TABLE  OF  CONTENTS.  XIX 

§  2465.   Refusal  of  Discharge  Not  Imposition  of  Penalty  nor  Forfeiture....  1489 

§  2466.  No   Constitutional   Right   to   Discharge    1490 

§  2467.  Act  Liberal  towards  Bankrupt  as  to  Discharge — Strict  Construction 

in   His   Favor    1490 

§  2468.  Right  to  Discharge  and  Effect  of  Discharge,  Distinct  Propositions.  1491 
§  2469.  Unless  Bankrupt  Commits  One  of  Acts  Prohibited,  His  Discharge 

"Shall"   Be   Granted    1492 

§  2470.  Though    Bankrupt    Owes    Nondischargeable    Debts;     or    Onl}^    Debt 

Scheduled    Be    Nondischargeable    1493 

§  2471.   Or    Though    Opposing    Creditor's    Debt    Nondischargeable    or    One 

against  Which  No   Exemption  Exists    ■ 1494 

§  2472.   Or  Though  Only  One  Debt  Exists   1494 

§  2473.  That  Only  Partnership  Debts  Exist  No  Bar  to  Discharge  in  Indi- 
vidual   Bankruptcy    ._ 1494 

§  2474.   Intervening  Insanity  or  Death  No  Bar   1494 

§  2475.  Undetermined  Petition  for  Discharge  in  Pending  Bankruptcy  under 

Old   Law  of  1867,  Not  Bar 1494 

§  2476.  Whether   Misconduct   in    Former   Bankruptcy   Bar 1495 

§  2477.  Lack  of  Sufficient  "Residence,  Domicile  or  Principal  Place  of  Busi- 
ness"   in    District,    No    Bar    1495 

§  2478.   Collateral   Attack  on  Jurisdiction   for   Lack  of  Residence,   etc 1495 

§  2479.   Filing  of  Petition  for  Discharge  after  Expiration  of  Year 1496 

§  2480.  Withholding  Discharge  or  Dismissing  Discharge  Petition,  for  Other 

Causes- — Noncompliance  with  Rules,  Want  of  Prosecution,  etc..  1496 

§  2481.   Buying   Off   Opposition   to   Discharge    1497 

§  2482.   Discharge   Not   Refused   for   Acts   Committed   before   Enactment   of 

Law    1499 

§  2483.   Right  to  Discharge  Governed  by  Law  as  It  Stood  at  Time  of  Filing 

Bankruptcy    Petition    1501 

§  2484.  Fraudulent  Acts  of  Agents  and  Partners  Not  Imputable  unless 
Actual   Knowledge    Exists,   Where    Commission   of  "Offense"    Is 

Ground  Urged    1502 

§  2485.   How,  Where  Ground   Charged   Is   Not  Commission  of  "Offense."..  1502 
§  2486.  Whether  Act  Must  Be  Committed  in  Same  Capacity  in  Which  Dis- 
charge  Sought,   to   Bar    1503 

§  2487.  "Concealment   of   Assets,"   as   Bar   to   Discharge    1503 

§  2488.  "Knowingly    and    Fraudulently." 1503 

§  2489.   Intent  to  Conceal,  Most  Important  Element   1504 

§  2490.   Honest   Mistake,  Even  Mistake  of  Law,   Excuses 1504 

§  2491.  Advice   of   Counsel    May   Negative    Intent    1504 

§  2492.  But  Insufficient  Where  Legal  Questions  Are  Matters  of  Common 
Knowledge;  or  Facts  Not  Fully  Laid  before  Counsel,  or  Unwar- 
ranted  Inferences   Drawn   from   Advice    1505 

§  2493.   Because    Property    Claimable    as    Exempt,    Fraudulent    Intent    Not 

Necessarily    Negatived    1505 

§  2494.   But  Such   Fact  of  Weight  as   Evidence 1505 

§  2495.  Willful  Undervaluing  of  Scheduled  Assets  May  Be  Concealment..  1505 
§  2496.  Preferences  Not  Amounting  to  Fraudulent  Concealment  No  Bar..  1505 
§  2497.   Concealment  Must  Be  "While  a  Bankrupt"  or  After  Discharge   ....  1506 

§  2498.   Continuing    Concealments     1506 

§  2499.   Concealment  Must  Be   Concealment  from  Trustee    1506 

§  2500.  Concealment  before  Appointment  of  Trustee,   Insufficient 1506 

§  2501.  Mere  Inability  to  Account  Reasonably  for  Assets  Not  Per  Se  Proof, 

though    Strong    Evidence     1507 


XX  TABLE  OF  CONTENTS. 

§  2502.   Concealment  by  Purposely  Omitting-  Assets  from  Schedules 1507 

§  2503.  And  Amendment  after  Discovery  Will  Not  Cure   1507 

§  2504.   But  Omission  to  Schedule,  Not  Per  Se  Concealment   1508 

§  2505.   Concealment   of  Fraudulently   Transferred   Property    1508 

§  2506.  But  Property  Must  Be  Recoverable,  Else  Not  Concealment  of  Prop- 
erty "Belonging  to   Estate 1508 

§  2507.  Concealment,  Even  Where  Fraudulent  Transfer  Occurred  i\Iore 
than  Four  Months  before  Bankruptcy,  if  Property  Still  Recov- 
erable     1508 

§  2508.  Or  Where  It  Occurred  before  Passage  of  Act,  if  Still  Recoverable.  1509 
§  2509.  Even  Where  No  Debts  Existed  and  Transfer  Fraudulent  Only  Be- 
cause  in    Contemplation   of   Future    Creditors    1510 

§  2510.   Concealment    of    Property    Held    on    "Secret"    or    Resulting    Trust, 

Title  Never  Having  Been   in   Bankrupt    1510 

§  2511.  "Secret   Trust"   in   Bankrupt's    Favor    Generally    Requisite   to    Show 

Continuing  and  Intentional  Concealment  of  Fraudulent  Transfers.  1511 
§  2512.  "Secret    Trust"     Not     Requisite    Where    "Fraudulent     Conveyance 

within  Four  Months,"  Ground  Charged   1513 

§  2513.  But  "Concealment"  and  "Fraudulent  and  Knowing  Intent"  Provable 

Otherwise  than  by  Continuing  Secret  Trust .  1514 

§  2514.  "Concealment"   Must   Be   of  Property   "Belonging   to   Estate." 1514 

§  2515.  Mere   Working  for   Another,    Even   without   Pay,   While    Insolvent, 

No    Concealment     1514 

§  2516.  Thus,  Beginning  New  Business  as  Agent  for  Another 1515 

§  2517.  Exact  Value  of  Assets  Concealed  Need  Not  Be  Capable  of  Ascer- 
tainment, if  of  Value   1517 

§  2518.   Even  if  of  Small  Value,  Intentional   Concealment  Will   Bar 1517 

§  2519.  Failure  of  Creditors  to  Institute  Legal  Proceedings  to  Recover  Con- 
cealed Property  Tends  to  Rebut 1517 

§  2520.  Amendment  of  Schedules  after  Discovery  of  Concealed  Assets  of 

No  Avail    1518 

§  2521.   Instances    Held    Sufficient    to    Bar    Discharge    for    Concealment    of 

Assets    1518 

§  2522.  Instances   Held  Insufficient  to  Prove   Fraudulent   Concealment 1519 

§  2523.  "False  Oath"  as  Bar  to  Discharge 1521 

§  2524.  Must  Be  False  Oath  or  False  Account   1523 

§  2525.  Oath  Must  Be  Authorized  by  Statute  and  Administered  by  One  Au- 
thorized      1523 

§  2526.  Sufficient  if  Administered  Either  before  Testifying  or  Afterwards..  1523 

§  2527.  Must  Be  in  or  in  Relation  to  Bankruptcy  Proceedings 1524 

§  2528.  "False   Oaths"   in   Poverty   Affidavits 1524 

§  2529.  "False  Oaths"  in   Hearing  upon   Petitions  for  Adjudication 1524 

§  2530.   If  Not  in  nor  in  Relation  to  His  Own  Bankruptcy  Proceedings,  No 

Bar     1524 

§  2531.  Whether    False    Oath    in    Own    Previous    Bankruptcy    Proceedings, 

Bar     1525 

§  2532.  False  Oath  in  Bankruptcy  Proceedings  under  Law  of  1867  Not  Suf- 
ficient      1526 

§  2533.   Must   Have  Been   Material    1526 

§  2534.  Material  Though  Subject  of  Little  Value  or  Not  Recoverable 1526 

§  2535.   False  Oath   Must   Be  "Knowingly  and   Fraudulently"   Made 1526 

§  2536.  "Advice  of  Counsel"  Tends  to  Negative   Fraudulent   Intent 1527 

§  2537.   Fraudulent  Intent  Not  Necessarily  Negatived  by  Fact  That  Property 

Recoverable    1527 


TABLE  OF  CONTENTS.  .  XXI 

§  2538.  Nor  That  Its  Value  Unascertained    1527 

§  2539.  Nor  That  it  Might  Have   Been  Claimed  Exempt 1528 

§  2540.   False  Testimony  on  "General  Examination,"  "False  Oath." 1528 

§  2541.   Swearing    to    Schedules    Containing    Misstatements    or    Omissions, 

"False    Oath." 1528 

§  2542.   Omitting  Creditors  from  Schedules,  When  "False  Oath." 1531 

§  2543.  Amendment  after   Discovery  of  Omission    1532 

§  2544.   Destruction,  Failure  to  Keep  and  Concealment  of  Books  of  Account 

as   Bar  to  Discharge 1532 

§  2545.   Intent   to    Conceal   Financial   Condition   Essential 1532 

§  2546.   Intent   Inferable  from   Circumstances    1534 

§  2547.  Property  Exempt,  or  Not  Recoverable,  etc. — Not  Necessarily  Nega- 
tive  Intent  to   Conceal    1534 

§  2548.   Keeping  Books  in  Same  Defective   Manner  for  Long  Period  Tends 

to  Negative  Intent    1534 

§  2549.  No  Special  Manner  of  Keeping  Books  Requisite   1535 

§  2550.  Concealment    or    Destruction    of    Books,    etc..    Which    Might    Have 

Aided  in  Ascertainment  of  Financial  Condition    1536 

§  2551.  Presentation  of  False  Claim  or  Demand  as  Bar  to  Discharge 1538 

§  2552.  Grounds  of  Opposition  to  Discharge  Added  by  Amendment  of  1903.  1538 
§  2553.  Transfer,  Removal  or  Concealment  within  Four  Months,  as   Bar  to 

Discharge     1539 

§  2554.   Must  Be  within  Four  Months   Preceding  Bankruptcy 1539 

§2555.  But   Property   Need   Not   Be    Still   Recoverable 1539 

•§  2556.   Obtaining   Property   on    Credit   on   False   Statement   in   Writing,   as 

Bar   to   Discharge    1539 

§  2557.   New     Ground    Only    Available     in     Bankruptcies     Instituted     Since 

Amendment     1540 

§  2558.   Statement   before    Amendment    Sufficient   if   Proceedings    Instituted 

after   Amendment 154rt 

§  2559.  Whether    Other   than    Particular    Creditor    Defrauded    May    Oppose 

on   This   Ground 1541 

§  2560.   First  Element:    Materially  False  Statement  in  Writing 1542 

§  2561.  Written   Statement  Need  Not  Be   Delivered  if  Contents   Communi- 
cated    .  : 1542 

§  2562.  Second  Element:    Must  Be  by  Bankrupt 1542 

§  2563.  But  if  Made  by  Agent  with  Bankrupt's  Authority,  Sufficient 1542 

§  2564.  Third   Element:     Must   Be   Made   to   Person   from   Whom   Property 

Obtained    1543 

§  2565.  Whether,  if  Made  to  Mercantile  Agencies,  or  in  Answer  to  General 

Inquiries,  a  Bar   1543 

§  2566.  Forth  Element:  Property  Must  Be  Obtained  on  Credit  Thereby..  1543 
§  2567.  Fifth  Element:  Bankrupt  Must  Intend  to  Obtain  Property  Thereby.  1544 
§  2568.  Whether   Intent   Must   Be  to   Obtain   Particular   Property   Actually 

Obtained    1544 

§  2569.  Sixth   Element:    False  Statement  Must  Be   Relied  on   1544 

§  2570.  "Continuing    Representations."     1544 

§  2571.  Previous  Discharge  within  Six  Years,  as  Bar  to  Discharge 1544 

§  2572.  Whether   Present  Application   Be   Involuntary   or  Voluntary   Bank- 
ruptcy,   Immaterial    1546 

§  2573.  Previous  Discharge  in  Involuntary  Proceedings,  No   Bar 1546 

§  2574.   In   Voluntary  Proceedings,   It    Is   Bar    1547 

§  2575.   Previous    Refusal   of   Discharge   within   Six   Years    Not   within   Bar, 

Though  Res  Judicata  as  to  Old  Debts    1547 


XXII  .  TABLK  OF  CONTEXTS. 

§  2576.  This  Bar  Applicable  Where  Proceedings  Instituted  after  Amend- 
ment of  1903,  Though   Facts   Occurred   Beforehand    1547 

§  2577.  "Within  Six  Years"  Measures  Time  between  First  and  Second  Dis- 
charge, Not  between  First  Discharge  and  Filing  of  Second  Peti- 
tion   in    Bankruptcy    1548 

§  2578.   Nor  between  Two  Adjudications  of  Bankruptcy    1548 

§  2579.  Jurisdiction    to   Administer    Estate   Unimpaired    Though    Discharge 

Barred  because  of  Previous  Discharge  within   Six  Years 1548 

§  2580.  Refusal  to  Obey  Court's*  Order  or  to  Answer   Question,  as  Bar  to 

Discharge     1548 

§  2581.  Refusal  to  Answer  Incriminating  Questions    1548 

§  2582.  Withholding  Discharge  until  Court  Rules  Complied  with 1549 

§  2583.  Specifications  of  Objections  to  Discharge,  Pleadings    1549 

§  2584.  Specifications  to  Be  Verified   1549 

§  2585.  But  Lack  of  Verification  May   Be  Waived    1551 

§  2586.   Or  Be  Supplied  by  Amendment   1551 

§  2587.  Where  Several  Objecting  Creditors,  All  May  Sign  and  Verify  Same 

Specifications    1551 

§  2588.  Whether  if  Several  Join  in  Same,  Each  Must  Sign  and  Verify 1551 

§  2589.  Whether  Verification  by  Some   One  with   Knowledge  Requisite....  1551 

§  2590.  Verification  by  Attorneys   Permitted    1551 

§  2591.   Forms    of    Verification     1551 

§  2592.  Whether  Verification  Must  Be  Positive  or  Maj^  Be  on  Information 

and   Belief    1552 

§  2593.  Specifications  to  Be  Signed   1553 

§  2594.  Specifications  to  Show  Capacity  of  Objecting  Creditor 1552 

§  2595.  All  Essential  Facts  and  Elements  of  Bar  to  Discharge  to  Be  Alleged.  1552 
§  2596.  "Knowinglj^  and  Fraudulentlj'"  to  Be  Alleged  Where  Act  Charged  an 

"Offense."    1553 

§  2597.  If  Act  Charged  an  "Oflfense,"  !Must  Appear  to  Have  Been  Com- 
mitted  after   Bankruptcy,   etc 1554 

§  2598.  Acts  Charged,  to  Be  Brought  within  Time  Limit 1554 

§  2599.  Distinct   Grounds   May  Be  Joined   in   One   Specification 1554 

§  2600.  But  Each  Ground  to  Be  Separately   Stated 1554 

§  2601.  All   Grounds   Need  Not  Be   Sustained 1555 

§  2602.  Specifications  Not  to  Be  Used  as  "Dragnet"  or  "Fishing  Expedi- 
tion."     1555 

§  2603.   Must  Not  Be  Indefinite  nor  General  nor  Argumentative,  but  Certain 

and  Positive    1555 

§  2604.  No  Greater  Definiteness  Necessary  than  Nature  of  Facts  Requires.' 1557 
§  2605.  Whether  to  Be  Pleaded  "with  Certainty  of  Indictment"  Where  "Of- 
fense"   Charged 1558 

§  2606.   Evidence    Not    to    Be    Pleaded 1558 

§  2607.  Legal  Conclusions  Not  to  Be  Pleaded 1558 

§  2608.  Thus,  Allegations  in  Mere  Words  of  Statute  Sufficient  Only  Where 

Failure  to  Keep  Books,  Ground  Charged— Elsewhere  Insufficient.  1558 

§  2609.  Alternative   Allegations   Improper    1561 

§  2610.  Defective   Specifications;     Rights   and   Remedies    1561 

§  2611.  Whether  Specification  of  One  Ground  and  Proof  of  Another  a  Fatal 

Variance     1.562 

§  2612.  Defective  Specifications  Waived  by  Going  to  Trial  without  Objec- 
tion     1562 

S   261 3.   Defective  Specifications  May  Be   Amended 1563 

§  2614.  Must  Be  Something  in  Record  Whereby  to  Amend 1563 


TABI^E  OF  CONTENTS.  XXIII 

§  2615.  Amendment  Permissible  after  Time  Limit  for  Filing  Specifications.  1563 

§  2616.  Even  New  Ground  of  Opposition  May  Be  Added 1564 

§  2617.  Amendment  to  Conform  Pleadings  to  Proof  but  Not  to  Set  up  En- 
tirely New  Ground  after  Trial   156-1 

§  2618.  Amendment   May  be   Ordered    1564 

§  2619.   Striking    Off   Specifications    after    Amendment    for    Failing    Still    to 

Show  Sufficient  Grounds    1564 

§  ^20.  Amendment  May  Be  Conditioned  on  Payment  of  Costs 1564 

§  2621.  Amendment   May  Be  Refused 1564 

§  2622.   Refusal  to  Permit  Amendment  Reviewable  for  Abuse  of  Discretion.  1565 

§  2623.  Answer  to   Specifications   Not   Necessary 1565 

§  2624.  But   May   Be   Filed 1565 

§  2625.   Final  Hearing  on  Discharge  to  Be  before  Judge 1566 

§  2626.  But  Judge   May   Refer   Issues   to   Special   Master 1566 

§  2627.  Motions  and  Demurrers  to  Be  to  Judge,  Not  to  Special  Master....  1567 

§  2628.   Hearings   before    Special    Master 1567 

§  2629.  Whether   Special    Master  to   Exclude   Improper   Evidence 1567 

§  2630.   Findings  of  Fact  as  Well  as  Evidence  to  Be   Reported 1569 

§  2631.  Also    Conclusion    of   Law 1569 

§  2632.  Exceptions  to   Special   Master's   Report  and   Findings 1569 

§  2633.   Court  Presumes  to  Have  Investigated  Case  on  Merits,  on  Master's 

Report     1569 

§   2634.   Findings  of  Fact  Not  Reversed  Except  for  Clear  Error 1569 

§  2635.   Burden   of   Proof   on    Opposing   Creditor 1570 

§  2636.  But  Presumptions  of  Fact  May  Shift  against  Bankrupt,  and  Compel 

Rebuttal 1571 

§  2637.   Burden  of  Proof  Is  on   Objecting  Creditor  as   to   Each   Element  of 

Ground    Charged     1571 

§  2638.   Evidence   Need   Not   Be   beyond   Reasonable   Doubt 1571 

§  2639.   But  Where  "Offense"  Is  Ground  Charged,   Evidence  to  Be  "Clear," 

"Satisfying"    or   "Convincing." 1572 

§  2640.  Whether  Same  Degree  of  Proof  Requisite  Where  Ground  Charged 

Is    Not    a   Punishable    Offense 1572 

§  2641.  "General    Examination"    of    Bankrupt   Admissible 1573 

§  2642.   Competent   Though   Crime   Charged 1573 

§  2643.  But  of  Other  Witnesses,  Not  Admissible 1574 

§  2644.  Unless   So   Stipulated    1574 

§  2645.  Ordinary   Rules   Determine   Admissibility   and   Credibility 1574 

§  2646.   Failure   to   Produce   Material   Witnesses   Who  Are   Accessible 1574 

§  2647.   Failure  of  Creditors    to    Take    Steps    to    Recover    Property    Alleged 

Fraudulently    Concealed     1574 

§  2648.   Evasive  Testimony  of  Bankrupt:    Credibility :  . .  . .  1575 

§  2649.  Contradictory    Statement    and    Incredible    Explanations 1575 

§  2650.  Impeachment  of  Witness  by  Inherent  Improbability  of  Own  Testi- 
mony     1575 

§  2651.  Nevertheless  Merely  Suspicious  Circumstances  Not  Sufficient  Where 

Witness    Uncontradicted     ••  •  •  1576 

§  2652.   Likewise  Mere  Evasive  Testimony  and  Inability  to  Account  Reason- 
ably for  Assets  Not  Per  Se  Proof 1576 

§  2653.  Though  Strong  Evidence  Tending  to  Discredit 1576 

§  26^4.  Judicial    Cognizance   of  Court   Records 1576 

§  2655.  Res   Judicata   and    Estoppel 157T 


•XXIV  TABLE  OF  CONTENTS. 

§  2656.  Discharge  Hearing  Not  Postponed  to  Await   Outcome  of  Fraudu- 
lent   Conveyance    Suit 1578 

§  2657.  Declarations  of  Alleged   Fraudulent  Transfer 1578 

§  2658.   Costs   on   Discharge    1578 

§  2659.  Power  to  Award  Costs  Inherent 1578 

§  2660.  Referee  Allowed  Compensation  as  Special  Master  on  Discharge....  1578 

§  2661.  Awarding  Costs  against  Creditors   1579 

• 

CHAPTER  LIV. 
Effect  of  Discharge  on  the, Rights  of  the  Parties. 

§  2662.   Right  to  Discharge  and  Effects  of  Discharge,   Distinct  Matters....  1584 
§  2663.   Effect   of   Discharge   on    Particular   Debt   to    Be    Determined   When 

Enforcement    of    Debt    Attempted 1585 

§  2664.  Decree  of  Discharge  to  Be  General 1586 

§  2665.  No  Limiting  of  Effect,  nor  Excepting  of  Particular  Debts,  in  Decree,  1586 

§  2666.  Except  Where  Former  Discharge  Refused 1587 

§  2667.  Urging  Debt  to  Be  Not  "Provable"  or  to  Be  within  Exceptions  of  § 

17,  Not  "Collated  Attack."    1587 

§  2668.   Discharge  Bars  Debts,  Not  Enforcement  of  Liens  or  Title  to  Prop- 
erty     1587 

§  2669.   Bankrupt  Remains  Liable  on  Debts  Not  Dischargeable,   Collectible 

Out   of   Subsequently-Acquired   Assets 1589 

§  2670.  Nondischargeable  Debts,  if  "Provable,"  Share  in  Dividends 1589 

§  2671.   Secondary    Liability    Unaffected 1589 

§  2672.  Debt  Not  Extinguished,  but  Its  Enforcement  Barred 1589 

§  2673.  Valid  Liens  Not  Cast  Off,  nor  Their  Enforcement  Prevented 1589 

§  2674.  Transactions  Themselves  Not  Invalidated  because  of  Being  Bars  to 

Discharge     1591 

^  2675.   Contractual    Relations   Not   Dissolved,   unless    Mergeable   in   "Prov- 
able" Debt  at  Time  of  Bankruptcy 1591 

§  2676.   Contracts    for    Liens    on    After-Acquired    Property    Discharged    if 

Mergeable  in  Provable   Debt  at  Time   of  Bankruptcy 1591 

§  2677.  But    Where    Lien    Exists    in    Presenti    before    Bankruptcy,    Though 

Property  Acquired  Afterwards,  Discharged  No  Bar 1591 

§  2678.  Thus,   Assignments   of   Unearned   Wages 1591 

§  2679.  "Waiver  of  Exemption"  Notes;    No  Levy  on  Exempt  Property  after 

Discharge     1593 

§  2680.  Former  Refusal   of  Discharge   Res  Judicata  as  to  all   Claims  Then 

Provable     1594 

§  2681.  But  Not  if  Former   Refusal   Was   under    State    Insolvency  Proceed- 
ings      1594 

§  2682.  Discharge  to  Be  Set  Up  as  Defense,  Else  Waived 1594 

§  2683.  Facts  Showing  Jurisdiction  to  Grant  Discharge  to  Be  Pleaded....  1595 

§  2684.  Certificate  of  Discharge  under  Seal  of  Court  Proves  Discharge 1595 

§  2685.  Interposition   of   Discharge   Throws    Burden   on    Plaintiff  to   Show 

Debt   Excepted   1595 

§  2686.  No  Collateral  Attack  on  Order  of  Discharge 1595 

§  2687.  Erroneous  Judgment  Notwithstanding  Discharge  Duly  Pleaded  and 

Proved,    Res   Judicata,    until   Reversed 1596 

§  2688.  Suits   against   Bankrupt    Stayed    until   Adjudication 'i596 

§  2689.  Available   to  Voluntary   and   Involuntary   Bankrupt   Alike 1596 


table;  of  contents.  xxv 

§  2690.   Stay  under  §   11  for  Bankrupt's   Benefit,  to  Permit   Interposition  of 

Discharge    1597 

§  2691.   Debt  Dischargeable,   Else  No  Stay 1597 

§  2692.  But  Proceedings  on  Nondischargeable  Debts  Stayable  Where  Cred- 
itor's   Rights    Involved    1598 

§  2693.  Error  in  Holding  Claim  Dischargeable  No  Warrant  for  Disobedi- 
ence  _ 1598 

§  2694.   Proceedings  Other  than  "Suits"  Stayed 1598 

§  2695.   Ipso  Facto  Stayed  Till  Adjudication  or  Dismissal  of  Petition 1598 

§  2696.  Thereafter,  Further  Stayed,  on  Application,  until   Discharge  Heard.  1599 

§  2697.  Not  Only  Pending  Suits  but  Also  Subsequent  Suits  Stayed 1599 

§   2698.   Further   Stay   Discretionary 1600 

§  2699.   Comity   Requires    Request   for   Stay    First   in    Court    Where   Action 

Pending    1600 

§  2700.   But  Bankruptcy  Court  May  Enjoin  if  Necessary 1601 

§   2701.   Referee  No  Jurisdiction  to  Enjoin  Court  or  Court  Officer 1601 

§  2702.   Stay  Applies  to  All  Incidents  of  Proceedings  in  State  Courts 1601 

§  2703.   No   Further   Stay   than   for   Year,   unless   Application   for  Discharge 

Filed  within  Year  Not  Yet  Acted  Upon 1602 

§  2704.   If  Stay  Not  Applied  for.  Judgment  and  Orders  of  State  Court  Valid.  1603 
§  2705.  Or  if  Discharge  Refused,  Court  May  Render  Judgment  in  Personam 

and  Judgment  Will  Be  Good   1603 

§  2706.  Or  if  Not   Interposed  Though   Granted,   Judgment   Valid 1603 

§  2707.   Statutory   Cancellation   of   Subsequently-Rendered   Judgments 1603 

§  2708.  No  Vacating  of  Judgment  Rendered  after  Discharge,  for  Interposi- 
tion  of   Discharge 1604 

§  2709.  Stay  Only  Protects  Bankrupt  from  Judgment  in  Personam — Judg- 
ments in   Rem   as   to   Property   Unaffected 1604 

§  2710.  Stay  Dissolved  after  Discharge  Granted  or  Refused  or  Dismissed..  1604 
§  2711.   Qualified   Stay  Where  Levy  Sought  on   Exempt  Property  Not   Ex- 
empt  as    to    Levy    Sought 1605 

§  2712.  And  Where  Judgment  Necessary  to  Perfect  Rights  against  Surety, 

or  Property   1605 

§  2713.  No  Deprivation  of  Right  of  Discharge  by  Staying  Discharge  Hear- 
ings or  Refusing  to  Stay  Creditor's  Suits  Where  Judgment  Requi- 
site  to   Perfect   Creditor's   Rights   against   Sureties,   etc 1605 

§  2714.   Revival  of  Discharge  Debt 1606 

§  2715.  No"   New    Consideration    Necessary 1606 

§  2716.  Part   Payment  on  Account  Insufficient  to   Revive   Debt 1606 

§  2717.   But  Discharge  Waivable  by  New  Promise 1606 

§  2718.   New   Promise   Not   Necessarily   in   Writing * 1607 

§  2719.  But  to   Be   More  than   Mere  Acknowledgment  of  Debt — Equivalent 

of  Promise  to   Pay  Necessary 1607 

§  2720.  And  to  Be  Certain,  Unequivocal  and  Clear 1607 

§  2721.   May   Be   Conditional,   if   Definite 1607 

§  2722.  Probably  New  Promise  before  Discharge  Sufficient,  if  after  Adjudi- 
cation      1607 

§  2723.  Acceptance  of  New  Promise   Requisite    1608 

§  2724.  Must    Be    Accepted   in    Terms    Offered 1608 

§  2725.  Conditional   Promise  Accepted  as  .Offered,   Sufficient 1608 

§  2726.  Action  on  Revived  Debt  to  Be  Brought  on  Original  Consideration.  1608 

§  2727.  New  Promise  Not  to  Be  Pleaded  nor  Proved  in  First  Instance 1608 

§  2728.  Allegations,  in  Pleading  New  Promise 1608 


XXVI  TABLE  OF  COXTEXTS. 

§  2729.   Contractual  Relations  Not  Dissolved  by  Discharge,  unless  Mergeable 

in   "Provable"   Debt louy 

§  2730.  Relation  of  Landlord  and  Tenent  Not  Severed 1610 

§  2731.  All    "Provable"    Debts    Discharged,    Save    Those    Excepted:     if   Not 

"Provable,"    Not    Dischargeable '. 1610 

§  2732.   If  Capable  of  Being  "Proved,"  Debt   Discharged  Whether  Actually 

Proved  or  Not   1612 

§  2733.  Tort   Claims   Discharged,  if  Toft   Might   Be   Waived  and   Claim   Be 

Presented    Ex    Contractu    1613 

§  2734.  Also  Unliquidated  Claims  if  Capable,  on  Liquidation,  of  Being  Pre- 
sented   Ex    Contractu 1613 

§  2735.   Only  Debts  Existing  at  Date  of  Filing  Petition  Discharged 1613 

§  2736.  Contingent   Claims   Not  Provable,  Not  Discharged 1613 

§  2737.   Costs  Incurred  Prior  to  Petition  Dischargeable 1614- 

§  2738.  Incurred   after.    Not   Discharged 1614 

§  2739.  Judgment  for  Breach  of  Promise  of  Marriage  Discharged,. 1614 

§  2740.  Judgments  for  Tort  Discharged,  Though  Liabilitj^  on  W^hich  Founded 

Not    1615 

§  2741.   Claims   of  Sureties   and   Endorsers  against   Bankrupt  Principal   Dis- 
charged      161.S 

§  2742.   Stockholder's  Liability  Dischargeable,   if   Fixed 1616 

§  2743.  Debts   Excepted   from   Discharge 1616 

§  2744.   Because  Excepted,  Not  on  That  Account  Entitled  to  Priority  beTore 

Dividends   ]  6ie> 

§  2745.   First   Exception — Taxes   Not   Discharged 1616 

§  2746.   Second    Exception — "Liabilities    for    Obtaining    Property    by    False 

Pretenses   or   False    Representations,"    Not    Discharged 1616 

§  2747.   Not  All   Frauds  Excepted,  but  Only  "Obtaining  Property  by   False 

Pretenses,"   etc 1616 

§  2748.  Judgment    Not    Requisite    1617 

§  2749.  Judgment    Not    Such    IMerger    as    Prevents    Inquiry    into    Original 

Liability    1618 

§  2750.  Not  Even  Though  Tort  Waived  and  Judgment  on  Quasi  Contract.  1618 

§  2751.   False   Representations   Not   Necessarily  in   Writing 1619 

§  2752.   False   Representations   to   Mercantile   Agency   Sufficient 1619 

§  2753.  Reckless     Representations     Sufficient 1619 

§  2754.  Third   Exception — Liabilities   for  Willful   and   ^lalicioui   Injuries   to 

Person  or  Property 1619- 

§  2755.  Fourth   Exception — Liabilities  for  Alimony 1620 

§  2756.  Simply   Declaratory   of  Law  as   Already   Existing 1620 

§  2757.  Fifth   Exception— Support  of  Wife  or  Child 1621 

§  2758.   Simple   Declaratory  of  Law  as  Already   Existing 1621 

§  2759.  Liabilities     to     Third     Parties     Not     Excepted— Only     Liabilities 

Directly  to  Wife  or  Child 1621 

§  2760.   Sixth    Exception — Seduction    or    Criminal    Conversation 1621 

§  2761.  Seventh   Exception— Debts   Not  "Duly  Scheduled." 162^ 

§  2762.  "Due"  Scheduling  Dependent  on  Facts  of  Particular  Case 1623 

§  2763.  Thus,  Initials   Instead  of  Full   Given  Names 1623 

§  2764.  Abbreviations    ^qoa 

£  2765.   Ditto    Marks     1504 

§  2766.  Partnership  Debts  in  Individual  Bankruptcy  of  Partner 1624 

§  2767.  Debts    Intentionally   Scheduled   in    Name   of   Original    Payee   When 

Held  by  Third  Person    1625 

• 


TABLE  OF  CONTENTS.  XXVII 

§  2768;  But  Original  Creditor  Sufficient  Where  No  Notice  of  Assignment..  1625 
§  2769.  Stockholders'    Liability,    Either*  Corporate    Creditors,    or    Receiver, 

May  Be   Scheduled 1625 

§  2770.   Failure  to  Give  Street  Number  in  City  Where  Ascertainable 1626 

§  2771.   Giving    Name   and    Street    Correctly,   but    City    Wrong,    Not    "Due" 

Scheduling   1626 

§  2772.  "Idem    Sonans."     1626 

§  2773.   Innocent   Intent  in   Faulty   Scheduling,   No   Excuse 1626 

§  2774.  Where  Actual  Address  Unknown,  a  Guess  at  Surmised  Address  Not 

Sufficient 1626 

§  2775.  Reasonable  Diligence  in  Ascertaining  Correct  Address  Requisite..  1626 
§  2776.  Where   x\ll  Addresses   Stated  to   Be   Unknown,   Court   to   Withhold 

Discharge  until   Satisfied  Due  Diligence   Exercised 1627 

§  2777.  Actual  Knowledge  by  Creditor  Cures  Defective  Scheduling 1627 

§  2778.   No  Particular  Form  of  Notice   Requisite 1627 

§  2779.  Agent's  Knowledge  Imputable  to  Principal 1627 

§  2780.  Knowledge    Not    Sufficient    unless    in    Time    for    Creditor    to    Avail 

Himself  of  Benefits  of  Law 1627 

§  2781.  Defending,  That  Debt  Not  "Duly"  Scheduled,  Not  Collateral  Attack.  1628 
§  2782.  After  Discharge  Too  Late  to  Amend  Schedules  to  Include  Omitted 

Creditors    1628 

§  2783.  Eighth    Exception — Claims    for    Fraud    Embezzlement,    etc.,    While 

Officer  or  in  Fiduciary  Capacity 1628 

§  2784.   Must    Be    Committed   While   Acting   as    "Officer"    or   in   "Fiduciary 

Capacity."    1629 

§  2785.  "Fiduciary  Capacity"  Refers  to  Express  Trusts;  and  Excludes  Con- 
versions by  Agents,  etc.,  Also  Fraudulent  Transfers 1629 

§  2786.  "Fiduciary"   Relation   Must   Exist  Independently  of  Transactions  in 

Which    Debt    Arose 1631 

§  2787.  Whether   Includes   "Officers"   of   Private    Corporation 1631 

§  2788.  "Fraud"    Means   Moral   Turpitude   or   Intentional   Wrong 1632 

§  2789.  "Fraud"  Must  Have  Existed  in  Original  Transaction 1632 

§  2790.  Judgment  Not  Such   Merger  as  Prevents  Inquiry  into   Character  of 

Fraud    1633 

§  2791.  Partnerships    Entitled    to    Discharge 1633 

§  2792.   No   Individual   Discharge  of  Member  unless   Individually  Adjudged 

Bankrupt    1633 

§  2793.  Act  of  One  Bars  Discharge  if  Done  within  Scope  of  Partner- 
ship   Business     1633 

§  2794.  Discharge  of  Firm  Debts  in  Individual  Bankruptcy  of  Member....  1634 
§  2795.   Individual    Liability    for    Firm    Debts,    Discharged    if    Firm    Debts 

"Duly"  Scheduled,  in  Individual  Bankruptcy,  Irrespective  of  "Firm 

Assets,"    etc 1635 

§  2796.  Firm  Debts  Provable  Debts  of  Each  Member,  and  So  Far  as  Efifect 

Individual,  Are   discharged  by   Individual's    Discharge 1637 

§  2797.  But  Partnership  Debts  to  Be  "Duly  Scheduled,"  Else  Not  Affected 

by   Individual    Discharge 1640 

§  2798.  And  Notices  to  Creditors  Must  Give  Notice  of  Firm  Debts  and  That 

Discharge    Therefrom    Sought 1641 

§   2799.  Petitions   for   Adjudication   and    Discharge    Each    to    Mention    Firm 

Debts  and  Pray  for  Discharge  Therefrom 1642 

§  2800.  And   Firm  Property  to  Be   Described 1642 


XXVIII  table;  of  contents. 

§  2801.  Amendment  May  Be  to  Include  Discharge  from  Firm  Debts,  Where 

Already   Duly   Scheduled    1642 

§  2802.  Even  after  Term  at  Which  Discharge   Granted 1642 

§  2803.  Where  Individuals  Adjudged  Bankrupt  with  Partnership,  Individual 

Debts  Discharged    1642 

§  2804.  Where  Not  So  Adjudged,  Individual  Debts  Not  Discharged 1642 

§  2805.  Individual    Partner    May    Be    Discharged,    Where    Firm    and    Other 

Partners    Not 1643 

CHAPTER  LV. 
Revocation  of  Discharge. 

§  2806.  Revocation   of    Discharge    1644 

§  2807.^  "Parties  in  Interest,"  Alone,  May  Move  to  Revoke 1645 

§  2808.  Includes  Creditor  Who  Has  Failed  to  Prove  Claim  within  Year 1645 

§  2809.  Must  Have  Been  Creditor  at  Time  of  Bankruptcy 1645 

§  2810.  Purchaser  of  Discharged  Claim,   Not  Party  in   Interest 1645 

§  2811.  Whether   Court,   Sua   Sponte,    May   Within   Year   Vacate    Discharge 

Not    on    Merits    1645 

§  2812.     Whether  Bankrupt  May  Move  to  Vacate  Discharge 1646 

§  2813.  Fraud  in  Procuring  Discharge,  Accompanied  by  Ground  for  Barring 

It,    Sole    Ground 1646 

§  2814.  Buying  Off  Opposition,   Sufficient 1647 

§  2815.  Applicant's    Knowledge    of    Fraud    at    Time    Discharge    Granted,    or 

Laches,  Fatal  to  Revocation 1647 

§  2816.   Ground  .for  Barring  Discharge   Itself   Must  Also   Exist 1648 

§  2817.  Creditor  Defeated  in  Opposition  to  Discharge   May  Not  Move  for 

Revocation    on    Same     Grounds 1648 

§  2818.  Vacating  for  Irregularities   Not   Going  to   Merits 1649 

§  2819.  Trial   on  Application   for  Revocation 1649 ' 

§  2820.  Before  Judge,   Not  before   Referee 1649 

§  2821.  But  May  Be  Referred  to  Special  Master 1649 

§  2822.  Petition  to  Set  Forth  Facts  Showing  Grounds  for  Revocation,  but 

Need  Not  Allege  Discharge  Not  Warranted 1649 

§  2823.  Amendment    1650 

§  2824.  Revocation  to  Be  Applied  for  Within  Year  after  Discharge  Granted.  1650 

PART  XL 
Appeals  and  Error. 

CHAPTER  LVI. 
Parties   on   Appeal  and  Error. 

§  2825.  Proper  Parties  on  Appeal  and  Error,  in  General 1653 

§  2826.  Must   Have   Substantial    Interest  in    Controversy 1653 

§  2827.  Must  Be  in  Trustee's  Name,  if  in  Behalf  of  Estate  and  after  Election 

of    Trustee 1653 

§  2828.  Except  When  Controversy  About  Trustee's  Own  Compensation  or 

Expenses  or  Report  on  Exemptions 1655 

§  2829.  Or,  When  About  Own  Conduct,  or  Administration 1655 

§  2830.  Trustee  Refusing  May  Be  Ordered,  or  Creditor  Be  Authorized  to 

Use  Trustee's   Name    1655 


TABLE  OF  CONTENTS.  XXIX 

§  2831.  Court  May  Require  Creditor  to  Indemnify  Trustee 1655 

§  2832.  Laches  May  Bar  Right  to  Object  to  Other  than  Trustee  Appealing.  1655 
§  2833.  Before  Election  of  Trustee  Appeal  or  Error  May  Be  by  Creditor..  1656 
§  2834.  Appeal  by  One  Party  Does  Not   Necessarily  Bring  Up   Case  as  to 

AH    1656 

§  2835.  Appeal   Not  Dismissed  for  Lack  of  Necessary  Parties  Where  Not 

Parties    below    Represented    by    Trustee 1656 

§  2836.  Joint    Appeal    1656 

§  2837.  Omitted  Parties   Made   Parties  on  Appeal    1657 

§  2838.   Creditors   Assenting  to   Composition,   Necessary   Parties   on  Appeal 

from    Confirmation    1657 

CHAPTER  LVII. 
Review  oe  the  Referee's  Order  by  the  Judge. 

§  2839.  Review    of    Referee's    Orders — Jurisdiction 1658 

§  2840.   Order    Must   Be   Made 1659 

§  2841.   Order  Must  Be  Final,  Not  Interlocutory:    Case  Not  to  Be  Reviewed 

Piecemeal     1G60 

§  2842.   Exception   to    Be   Taken   to    Order 1661 

§  2843.  Also  to  Finding  of  Fact,  Else  Conclusive  on  Review 1661 

§2844.  Exceptions    Must   Be   Specific,   Not   "Broadside." 1661 

§  2845.  But   No   Formal   "Exceptions"    Need   Be   "Filed." 1661 

§  2846.  Petition   for   Review   Must   Be   Filed 1662 

§  2847.  Petition  Must  Set  Forth   Errors   Complained   of 1662 

§  2848.  But  New  Facts  May  Not  Be  Set  Up,  Changing  Case 1663 

§  2849.  And  Should  Pray  for  Review  of  Referee's  Order 1663 

§  2850.  Petition  to   Be   Filed  with   Referee 1663 

§  2851.  Time  Limited  for  Filing  Petition  for  Review 1663 

§  2852.  Certificate  of  Question,  Summary  of  Evidence,  Findings  and  Order 

of  Referee,  Requisite   . .  . .  ; 1664 

§  2853.   Certificate,   Though   Referee's,   May  Be   Prepared  by  Counsel 1665 

§  2854.  Record  on  Review  to  Show  Certificate 1665 

§  2855.  Not  Entire  Evidence  but  Only  "Summary"  to  Be  Certified 1666 

§  2856.  Remedies    for    Incomplete    Record 1667 

§  2857.  Referee  Also  to  Certify  Findings  of  Fact 1668 

§  2858.  Precise  Question  for  Review  to  Be  Stated  Clearly  and  Distinctly.  .  1669 
§  2859.  Petition  and  Certificate  Transmitted  by  Referee  to  District  Clerk..  1669 

§  2860.  Stay  of  Execution   or   Order •. 1669 

§  2861.  Referee's    Order    and    Finding    Presumed    Correct,    until     ^Manifest 

Error    Shown    1670 

§  2862.   Points  Not  Discussed  below  Nevertheless  Considered  if  Sufficiently 

Appearing   in    Record    1672 

§  2863.   Remanding  for   Further   Testimony  Where    Referee's   Order   Disal- 
lowing Claim  at  Close  of  Claimant's  Evidence  in  Chief  Reversed.  1673 

CHAPTER  LVni. 

APPE.A.LS  AND  Error  Proceedings  from  District  Courts  to  the  Circuit 

Courts  of  Appeals. 

§  2864.   Fundamental    Distinction    between    Steps   "in    Bankruptcy   Proceed- 
ings"   Proper    and    Incidental    "Controversies." 1678 


XXX  TABLE  0^  CONTENTS. 

§  2865.  Thus,   Adjudication  of  Bankruptcy,  or   Its   Refusal,   a  Question   "in 

Bankruptcy    Proceedings    Proper 1685 

§  2866.   Likewise,   Allowance    or    Refusal    of    Exemptions 1682 

§   2867.  And  Allowance  or  Rejection  of  Claim  to  Share  in  Dividends  or  in 

Marshaling  of   Firm   and   Individual    Estates 1683 

§  2868.  And  Allowance  or  Disallowance  of  Costs  and  Expenses  of  Admin- 
istration— Such    as    Attorneys'    Fees 1683 

§  2869.  Even  Validity  and  Priority  of  Lien  May  Be,  if  Incident  to  Allowance 

or  Rejection  of  Creditor's  Claim  for  Share  in  Dividends 1683 

§  2870.  But  if  Sole  Controversy  About  Lien  or  Priority,  None  About  Debt, 

Not  a   Question   "in  Bankruptcy  Proceedings"   Proper 1684 

§  2871.  And  Claim  Controverted  Must  Be  Creditor's   Claim,   Else   Not 1684 

§  2872.   Seizures   on   Warrants   to   Marshal,    Proceedings   in    Bankruptcy...    1685 
§  2873.   But  Trustee's   Petitions   for   Summary   Surrender   of   Property,    Not 

Bankruptcy  Proceedings  Proper   1685 

§  2874.  Neither  Are  Trustee's  Plenary  Suits  in  U.  S.  District  Court  to  Re- 
cover Property  Fraudulently  or  Preferentially  Transferred 1686 

§  2875.   Nor   Are    Intervening    Petitions    Claiming    Property    in    Custody    of 

Bankruptcy    Court,    or   Liens    Thereon •.  . .  1687 

§  2876.  But  Orders  of  Sale  and  Controversies  Incident  Thereto,  Proceedings 

in  Bankruptcy  Proper  and  Not  "Controversies.". 1688 

§  2877.  Unless   Real   Controversy  Not  about   Order  of  Sale   nor   Claim,  but 

about  Lien  or  Title  Itself 1689 

§  2878.  Thus,  Trustee's  Petition  to  Marshal  Liens  on  Property  in  His  Cus- 
tody and  to  Enjoin  Interference  Not  "Proceedings  in  Bank- 
ruptcy"   but    "Controversy."    1689 

§  2879.   Marshaling  of  Firm  and  Individual  Assets  and  Debts  in  Partnership 

Bankruptcies    1689 

§  2880.  When  to  Appeal,  When  to  Petition  for  Revision 1689 

§  2881.  Distinction  between   Writ  of   Error  and  Appeal,   Preserved 1690 

§  2882.   Distinctions  between  §  24  (b)  and  §§  24  (a)  and  24  (a) 1691 

§  2883.  Resort   to   Appeal    or    Petition    for    Review    on    Error,    Optional    in 

Proper    Case    : 1693 

§  2884.  Thus,   in   "Controversies."    1694 

§  2885.   If  Facts  Undisputed,  Petition  to   Revise   Only   Remedy 1695 

§  2886.  If  Facts  Disputed,  May  Be  Reviewed  Only  if  Appeal  Available 1695 

§  2887.   Holdings  That  Appeal  under  §  25  (a)   Exclusive  of  Error 1695 

§  2888.  Holdings  That  Optional  Even  in  Three  Cases  Where  Appeal  Pro- 
vided under  §  25   (a)    1696 

§  2889.  Appeals  in   Bankruptcy   Proceedings   Proper 1697 

§  2890.   Order  Appealed  from   Must   Be   Final   Order 16£(7 

§  2891.  Right  of  Appeal  Cannot  Be  Enlarged  nor  Restricted  by  Court 1698 

§  2892.   Such  Appeals  Permissible   Only  as  to   Adjudication,   Discharge  and 

Allowance    of    Claims 1698 

§  2893.  First:  Appeals  from  Adjudications  or  Refusals  to  Adjudge  Bank- 
rupt     1698 

§  2894.  But  No  Appeal  if  Jury  Trial  Had   1699 

§  2895.  Second:    Appeals  from  Judgments  Granting  or  Denying  Discharge.  1700 

§  2896.  Includes  Confirming  or  Refusing  to  Confirm  Composition 1701 

§  2897.  Also  Dismissals  of  Discharge  for  Want  of  Prosecution 1701 

§  2898.  Third:    Appeals  from  Allowance  or  Rejection  of  Claims 1701 

§  2899.  Amount  in  Dispute,  Not  Amount  of  Entire  Claim,  Governs 1701 


TABLE  OF  CONTENTS.  XXXI 

§  2900.   Debt  Must  Have  Been  Owed  by  Bankrupt,  Mere  Lien  on  Property 

Insufficient     ■  ■■  ■, 1702 

§  2901.   Where  Lienor  Priority  Incident  to  Disputed  Debt,  Its  Validity,  Pri- 
ority,   etc.,    Appealable 1702 

§  2902.   But  Where  Debt  Undisputed  Mere  Fact  That  Disputed  Lien  or  Pri- 
ority  Incident   to   Debt   Insufficient    1702 

§  2903.   Not.  to  Split  Case  and  Dismiss  Portion  Affecting  Lien  or  Priority..  1703 

§  2904.  "Claim"   Refers  Only  to  Money  Demand 1704 

§  2905.  And  to  "Claims"  Presented  for  Proof  against   Bankrupt  Estate....  1704 

§  2906.  And   Not   to   "Claims"   for   Exempt    Property 1704 

§  2907.   Nor,  Probabh',  to  "Claims"  for  Costs  and  Expenses  of  Administra- 
tion      1704 

§  2908.   Nor  to  "Claims"  of  Strangers  to  Property  in  Trustee's   Possession, 

nor  of  Trustee  to  Property  in  Strangers'   Hands 1705 

§  2909.  -Disallowance    of   Claim    because    Preference    Not    Surrendered,    Ap- 
pealable  1705 

§  2910.   Rejection  or  Allowance  of  Set-Off  Appealable    1705 

§  2911.   No    Appeal    in    Bankruptcy    Proceedings    Proper    Except    in    Three 

Cases  of  §  25   (a)    Mentioned    1705 

§  2912.  Appeals  in  "Controversies  Arising  in  Bankruptcj^  Proceedings." ....  1706 
§  2913.  Appeal  a   Matter  of   Right,   Not  to   Be   Enlarged  nor   Restricted  by 

Court     1708 

§   2914.  Under  §  24   (a)   Both   Law  and   Fact   Reviewed 1708 

§  2915.   Litigant  Has  Option,  in  Proper  Case,  Either  to  Appeal  or  Petition 

for    Revision     1708 

§  2916.   May  Treat  "Appeals"   as  Petitions   for   Revision 1709 

§  2917.   But  Not  Where  Questions  All  of  Fact 1709 

§  2918.  Simultaneous   Appeal   and   Petition   for   Review 1709 

§  2919.   Single   Assignment   of   Errors    Sufficient   Where   Appeal    and    Error 

Simultaneously   Prosecuted    1710 

§  2920.  Appeals  in  "Controversies"  Only  Allowable  in  Cases  within  Act  of 

Congress   Establishing  Circuit   Courts  of  Appeal 1710 

§  2921.   Decree  in  Equity  Not  Reviewable  by  Writ  of  Error,  nor  Judgment 

at   Law  by   Appeal    1711 

§  2922.   Must  Be  "Final"   Order   1712 

§  2923.  Validity,   Priority,  etc.,  of  Liens  Appealable  as  "Controversies"....  1712 
§  2924.   Summary  Order  on  Third  Party  to  Surrender  Assets,  Appealable  as 

"Controversy."    1713 

§  2925.   Likewise,    Summary    Order    on    Trustee    or    Receiver    to    Surrender 

Assets  to  Third  Party   1713 

§  2926.   Plenary  Suits  in  U.  S.  District  Courts  by  Adverse  Claimants  in  Pos- 
session to  Enjoin  Trustees,  Appealable  as  "Controversies." 1713 

§  2927.  Also,  Plenary  Suits  by  Trustees  in  U.  S.  District  Court  to  Recover 

Property  Preferentially  or   Fraudulently  Transferred 1714 

§  2928.   Error    Proceedings    Sole    Method    of    Review    in    Bankruptcy    Pro- 
ceedings Proper  Except  in  Three   Cases  of  25   (a) 1714 

§  2929.   Limited  to  Matters  of  Law  under  §  24   (b) 1715 

§  2930.  Thus,  Exemptions   Reviewable  Only  by  Petition  to  Review 1715 

§  2931.  Likewise,  Reopening  or  Refusal  to  Reopen  Closed  Estates 1715 

§   2932.  Administrative  Orders  Reviewable  under  §   24   (b) 1715 

§  2933.  Attorneys'   Fees   and  Other   Expenses   of  Administratiion 1715 

§  2934.   Likewise,   Exemption   Matters    1715 


XXXII  TABLE  OF  CONTENTS. 

§  2935.   Orders   on    Nonbankrupt   Partners   to    File    Schedules   or    Surrender 

Firm   Assets    1715 

§  2936.  Likewise  Distribution  between  Firm  and  Individual  Creditors 1716 

§  2937.  Also,  Orders  of  Sale  and  Controversies   Incident  Thereto,  Review- 
able under  §  24   (b) 1716 

§  2938.  And  Summary  Orders  on  Bankrupts  and  Others  to  Surrender  Assets 

or  Execute  Instruments    , 1716 

§  2939.  Allowances  to  Widow  and  Children  on  Death  of  Bankrupt  Pending 

Adjudication    1717 

§  2940.   Error  Proceedings   in  "Controversies"   and  in   Independent   Plenary 

Suits    ■ 1717 

§  2941.   Whether  §  24  Applies  Only  to  Orders  in  Proceedings  in  Bankruptcy 

Themselves,  Not  to  Orders  in  Independent  Plenary  Suits 1717 

§  2942.   Section  24  (b)  Authorizes  Review  Only  of  Law,  Not  Facts 1719 

§  2943.   Intervening   Petitions   Claiming   Property   or    Funds   in   Custody    of 
Bankruptcy  Court  or  Claiming  Liens  or  Other  Interests  Therein 

Reviewable  by   Petition   to   Revise " 1720 

§  2944.   Brief    Resume     1721 

§  2945.  Procedure  on  Error  to  Be  by  Writ  of  Error  or  Petition  to  Revise, 

and    Notice    1721 

§  2946.  If  by  Petition  to  Revise,  Filing  of  Petition  and  Notice,  Sole  Require- 
ments     1721 

§  2947.   Petition  for  Review  to   Be   Filed   1722 

§  2948.  Petition   to   Set   Forth   Order   Complained   of 1722 

§  2949.  How  Far  to  Set  Forth  Issue  on  Which  Erroneous  Order  Made....  1722 

§  2950.  Record  to  Set   Forth   Order   Complained   of 1723 

§  2951.  And  to  Present,  Clearly,  Issues  of  Law   1723 

§  2952.  Also,  to  Show  Insufficiency  of  Grounds  for  Order 1723 

§  2953.  Whether  Testimony  and  Other  Evidence  to  Appear 1724 

§  2954.  Not   by  "Bill   of   Exceptions." 1724 

§  2955.   Findings   of  Fact   or   Equivalent,   Requisite 1724 

§  2956.  Mere  "Opinion"  of  District  Court  Insufficient,  unless  Made  Part  of 

Record    1724 

§  2957.  But   May   Be   Looked  to    1725 

§  2958.  Due  Notice  to  Be  Given   1725 

§  2959.   Procedure   on   Appeal   Follows   Equity   Appeal   Procedure 1725 

§  2960.  Application  for  Leave,  Allowance,   Citation   and  Notice 1725 

§  2961.  Assignment  of  Errors  to  Be  Filed 1726 

§  2962.   Complete    Record    to    Be    Made 1726 

§  2963.  Need  Certify  Only  So  Much  as  Sufficient  to  Exhibit  Errors 1726 

§  2964.  But  Discretion  of  Parties  in  Making  Up  Record  Not  to  Be  Inter- 
fered    with     1727 

§  2965.  Parties  May  Stipulate  as  to  What  Necessary. .  .  .■ 1727 

§  2966.  Must  Be  Stipulated  or  Certified  That  Complete  Record  of  All  Nec- 
essary      1727 

§  2967.   Record    Imports   Verify,    May   Not    Be    Contradicted,    Explained    or 

Extended   by   Evidence   Dehors 1727 

§  2968.  Remedies  for  Incomplete  Transcript  on  Appeal 1728 

§  2969.  Whether   Findings  of  Fact   Requisite   on   Appeal 1729 

§  2970.   Record   to   Show   Assignment   of   Errors,    Prayer   for   Reversal    and 

Citation     ' 1729 

§  2971.   Prayer  for  Reversal  and  Citation  Waivable,  but  Assignment  of  Er- 
rors    Not 1729 


TABLE  OF  CONTKNTS.  XXXIII 

§  2972.  Also,  Time  of  Perfection  of  Appellate  Proceedings 1730 

§  2973.   Citation  May  Be  Granted  after  Expiration  of  Appeal  Time 1730 

§  2974.  Record  Sufficient  if  Contains  All  on  Which  District  Court  Acted  if 

Not  All  on  Which   Referee  Acted 1730 

§  2975.   Record  to   Be   Printed    1731 

§  2976.   Bond  Not  Requisite,  on  Petition  for  Review,  Except 1731 

§  2977.  But  Requisite  on  Appeal   1731 

S  2978.  And  Approval  of  Security,  Perfects  and  "Allow^s"  Appeal 1732 

§  2979.   Perfecting    Appeal    Transfers    Jurisdiction    and    No    Further    Steps 

Possible    1732 

§  2980.  Trustee   Need  Not   Give   Bond 1732 

£  2981.  Time  for  Appeal  in  Bankruptcy  Proceedings  Proper 1732 

g  2982.  May  Be  Heard  by  Appellate  Court  in  Term  or  Vacation 1733 

§  2983.   Record  to   Show^   Time   of  Appeal    1733 

§  2984.  Date   of    Entering    Order    or   Judgment,    Not    of   Actual    Rendition, 

Fixes    Date    1733 

§  2985.  Appeal  Not  "Taken"  until  "Allowrance"  Made,  and  Bond  and  Cita- 
tion Filed   1733 

§  2986.  But  Delay  in  Bond  and  Citation  Not  Fatal,  if  Appealed  "Allowed" 

in   Time    .^ 1733 

§  2987.   Application  for  Extension  Too  Late  after  Expiration  of  Time 1734 

§  2988.  Time  for  Appeal   Begins  from  Date   of  Entry  of  Order  Overruling 

Motion    for    Rehearing    1735 

§  2989.   Motion  for  Rehearing  Not  Filed  in  Time,  Insufficient 1735 

§  2990.  Reviving  Lost  Right  of  Appeal  by  Motion  Pretended  to  Be  for  Re- 
consideration of  Merits   1 1735 

§  2991.  Alias  Order  of  Adjudication  Inefifective  to  Revive  Lost  Right  of  Ap- 
peal  1735 

§  2992.  Time  for  Appeal  in  "Controversies,"  Limited  by  Act  Creating  Cir- 
cuit   Court    of   Appeals    1736 

§  2993.   No  Express  Time  for  Petition  for  Review   1736 

§  2994.  But    Dismissed    for    Laches 1736 

§  2995.  But  Not  Dismissed  unless  Delay  Unreasonable    1737 

§  2996.  Delay  Excusable  on   Good  Cause   Shown 1737 

S  2997.  By  Analogy  Should  Be  Filed  within  Six  Months'  Time 1737 

§  2998.  At   Least  in   All   Cases  of  "Controversies." 1737 

§  2999.  Time  for  Reviewing  in  Bankruptcy  Proceedings   Proper,  Ten  Days 

by    Analogy 1737 

§  3000.  Rehearing  Where  Order  Based  on   Authority  Since   Overruled 1738 

§  3001.  Objections  Not  Raised  Below,  Not  Heard  Above 1738 

§  3002.  Record  to  Show  Same  Issues  Presented  to  Court  Below 173§ 

§  3003.  Even  Jurisdictional  Questions,  unless  Nonwaivable,  Not  Considered 

for   First   Time   on   Review    1739 

§  3004.  But  Will  Be  if  Not  Waivable,  Though  Not  Considered  Below  nor  As- 
signed   as    Error    1739 

§  3005.  Plain  Error  Noticed,  Though  Not  Raised  by  Parties  Themselves..  1740 
§  3006.  Issues    Directly    Raised    by    Pleadings    Considered,    Though    First- 
Made   Point   of  on    Appeal    / 1740 

§  3007.  Findings  of  Fact,  or  Equivalent,  Essential  to  Show  Issues  Same..  1740 

§  3008.  "Opinion"  of  Court  Insufficient,  Though  May  Be  "Looked  to." 1740 

§  3009.  Judgment  on  Facts  Not  Disturbed  Except  for  Manifest  Error   ....  1741 

2  Rem— c 


XXXIV  TAF.LE  OF  CONTENTS. 

§  3010.  Trivalities   Not   Considered — Substantial    Interest   to   Be   Shown ....  1743 

§  3011.   Clerical    Mistakes    Disregarded 1742 

§  3012.  Obedience  to  Mandate  Enforced  by  Mandamus 1743 

CHAPTER  LIX. 

Appeals  and  Petitions  for  Review  to  Supreme  Court. 

§  3013.  Allowance   or   Rejection    of    Claims    Only    Bankruptcy    Proceedings 

Proper   Appealable   to   Supreme    Court 1744 

§  3014.   But    Only    Permissible,    Then    if    Amount    in    Controversy    Exceeds 

$2,000,    etc 1745 

§  3015.  Or    Some    Supreme    Court    Justice    Certifies    Essen-tial    to    Uniform 

Construction  of  Act    1745 

§  3016.  Appeals  to  Supreme  Court  in  "Controversies"  Where  Would  Have 

Jurisdiction   in   Other   Cases    1745 

§  3017.  "Other   Cases"    Refers   to    Cases   Covered   by   Act    Creating    Circuit 

Courts   of  Appeal 1745 

§  3018.  But   Only  in  "Controversies"  and   Not  in   Bankruptcy   Proceedings 

Proper    1746 

§  3019.  Jurisdictional  Questions,  in  "Controversies,"  Appealable  Directly 
from  District  Court  to  Supreme,  Only  Where  Jurisdiction  Would 
Exist  if  Not  Concerning  Bankruptcy    1746 

§  3020.  To   Be   on   Certificate    1747 

§  3021.  "Question  of  Jurisdiction"  Means  Jurisdiction  Over  Subject  Matter 

as  Pleaded,  Not  Over  Particular  Person  as  Dependent  on  Proof..  1747 

§  3022.  Appeals  to  Supreme  Court  to  Be  Taken  within  Thirty  Days 1748 

§  3023.  Record  for  Transmission  to   Supreme   Court 1748 

§  3024.  Review  by  Error  or  Petition  in  Supreme   Court    1748 

§  3025.  Both  Bankruptcy  Proceedings  Proper  and  Also  "Controversies"  Re- 
viewable in  Supreme  Court  on  Certiorari 1749 

§  3026.  State  Supreme  Court's  Decision  on  Trustee's  Action  to  Recover  As- 
sets Transferred  Contrary  to  Bankruptcy  Act,  Presents  Federal 
Question,   Reviewable  by   Supreme   Court    1749 


The   Bankruptcy   Act   of  1898 1753 

The   Bankruptcy  Act  of  1867 1789 

The  Bankruptcy  Act   of  1841 1826 

The   Bankruptcy  Act   of  1800 1834 

General   Orders   in   Bankruptcy 1851 

Official    Forms   in    Bankruptcy 1867 

Unofficial   Forms  in  Bankruptcy 1921 

Table    of    Cases 1953 

Index    2043 


PART  VI. 

CONVERTIXG  THE  AssETS  INTO  MonEY. 


CHAPTER  XXXVI 1. 

Appraisal,. 

Synopsis  of  Chapter. 

§  1924.  All  Property  of  Estate  to  Be  Appraised. 

§  1925.  Only  Property  of  Estate  Need  Be  Appraised. 

§  1926.  Appraisers  to   Be  Disinterested. 

§  1927.  And  to  Be  Appointed  by  and  Report  to  Court. 

§  1928.  Three  Appraisers. 

§  1929.  To  Be  Sworn. 

§  1930.  Methods  of  Arriving  at  Appraisal  Values. 

§  1930>^.  Reappraisal. 

§  .1924.  All  Property  of  Estate  to  Be  Appraised. — All  property  of  the 
estate  must  be  appraised,  by  three  disinterested  appraisers,  \vho  are  ap- 
pointed by  and  report  to  the  court. ^ 

The  purpose  of  this  provision  is  to  secure  for  tlie  benefit  and  protection 
of  all  parties  concerned  a  designation  and  estimation  of  the  property  which 
passes  into  the  hands  of  the  trustee,  and  for  which,  in  the  first  instance, 
he  is  accountable. 2 

§  1925.  Only  Property  of  Estate  Need  Be  Appraised. — All  the  prop- 
erty belonging  to  the  estate  is  to  be  appraised.  This  is  a  rec^uirement,  how- 
ever, only  as  to  property  belonging  to  the  estate.  It  is  not  requisite  that 
property  in  the  custody  of  the  court  but  not  belonging  to  the  estate,  such  as 
exeinpt  property,  be  appraised ;  though  frequently  it  is  desirable  to  appraise 
exempt  property,  whenever  the  exemption  right  is  limited  by  value  and  the 
articles  claimed  as  exempt  approximate  the  limit  in  value.^ 

§  1926.  Appraisers  to  Be  Disinterested. — The  appraisers  must  be  dis- 
interested.^ Thus,  prospective  purchasers  would  be  disqualified.  Also  per- 
sonal friends  of  the  bankrupt  would  be  disqualified,  for  they  might  be  in- 
clined to  favor  a  low  valuation  for  the  bankrupt's  sake,  so  that  he  might 
be  able  to  buy  in  the  assets.     Creditors  themselves  would  be  disqualified. 

Whether  employees  of  creditors  are  disqualified  is  a  question  of  fact  in 
each  particular  case,  resting  much  upon  the  discretion  of  the  court.  Remote 
affiliations  with  creditors  may  be  disregarded. "• 

1.  Bankr.  Act,  §  70  (b). 

2.  In  re  Gordan  Supply  &  Mfg.  Co.,  13  A.  B.  R.  352,  133  Fed.  798  (D.  C.  Pa.). 

3.  See  ante,  §  1080. 

But  the  objection  that  a  sale  was  made  without  appraisement  cannot  be  raised 
for  the  first  time  on  review.  In  re  Gutterson,  14  A.  B.  R.  495,  136  Fed.  698  (D. 
C.  Mass.). 

4.  Impliedly,  In  re  Columbia  Iron  Works,  14  A.  B.  R.  526,  142  Fed.  234  (D. 
C.  Mich.). 

5.  In  re  Columbia  Iron  Works,  14  A.  B.  R.  526,  142  Fed.  234  (D.  C.  Mich.). 


1204  REMINGTON    ON    BANKRUPTCY.  §    1929 

§  1927.  And  to  Be  Appointed  by  and  Report  to  the  Court. — The  ap- 
praisers are  to  be  appointed  by  and  report  to  the  court ;  and  it  is  the  better 
practice  for  the  court  to  act  upon  his  own  unfettered  judgment  and  not  to 
permit  creditors  to  nominate  them  f  although  there  really  would  seldom  be 
any  ground  for  objecting  to  nominations  by  the  creditors,  since  creditors 
usually  are  simply  desirous  of  getting  the  best  values  out  of  the  assets. 

Appraisers  are  not  to  be  considered  as  appointees  nor  agents  of  the 
trustee ;  nor  is  their  compensation  to  be  figured  as  part  of  the  trustee's 
expenses.  They  are  independent  of  the  trustee  and  act  as  advisers  of  the 
creditors  upon  the  matter  of  values,  so  that  creditors  and  the  court  may 
know  when  the  trustee  has  realized  a  fair  price  for  the  assets  in  his  hands. 

The  referee  has  power,  after  adjudication  and  reference,  to  appoint  ap- 
praisers;"  but  before  adjudication,  if  appraisers  are  to  be  appointed,  they 
must  be  appointed  by  the  judge  f  except  that,  as  in  other  matters,  in  the 
judge's  absence  or  disability,  on  certificate  to  that  effect,  the  referee  may 
make  the  appointment. 

§  1928.  Three  Appraisers. — There  must  be  three  appraisers  to  appraise 
each  piece  of  property.  This  does  not  mean  that  the  same  three  must  ap- 
praise all  the  property,  nor  that  each  piece  must  be  appraised  by  a  differ- 
ent set  of  appraisers.  Sometimes  property  belonging  to  a  bankrupt  estate 
is  scattered  about  different  states,  and  sometimes  it  consists  of  widely  differ- 
ing classes  of  property,  such  that  men  qualified  to  appraise  in  one  branch 
would  not  be  cjualified  in  another ;  as,  for  instance,  real  estate,  hardware,  a 
stock  of  groceries,  patents,  boots  and  shoes.  It  Avould  be  difficult  to  pro- 
cure three  appraisers  who  would  be  able  to  find  even  one  in  their  midst  for 
each  class  of  assets.  In  some  cases  dift'erent  sets  of  appraisers  may  be  ap- 
pointed for  each  dift'erent  locality  or  class  of  goods,  but  always  there  must 
be  three  of  them  passing  upon  each  piece  although  all  three  need  not  neces- 
sarily be  expert  in  each  line. 

§  1929.  To  Be  Sworn. — They  are  presumed  to  be  sworn  well  and  faith- 
fully to  appraise  the  property  before  they  go  out  to  make  the  appraisal; 
but,  since  an  appraisal  probably  is  not  complete  until  signed  by  the  ap- 

6.  In  re  Columbia  Iron  Works,  14  A.  B.  R.  526,  142  Fed.  234  (D.  C.  Mich.). 

7.  In  re  Styer,  3  A.  B.  R.  424,  98  Fed.  290  (D.  C.  Pa.).  Impliedly,  In  re 
Columbia   Iron  Works,  14  A.  B.   R.  525,  142   Fed.  234   (D.   C.   ]\Iich.). 

8.  In  re  Styer,  3  A.  B.  R.  424.  98  Fed.  290   (D.  C.  Pa.V 

Prescribed  Form  of  Order  of  Appointment. — The  order  appointing  them  is 
prescribed    by    the    Supreme    Court    and    is    as    follows:     "It    is    ordered    that 

of ,  of ,  and  of  , 

three  disinterested  persons,  be,  and  they  are  herebj',  appointed  appraisers  to 
appraise  the  real  and  personal  property  belonging  to  the  estate  of  said  bankrupt 
set  out  in  the  schedules  now  on  file  in  this  court,  and  report  their  appraisal  to 
the  court,  said  appraisal  to  be  made  as  soon  as  may  be,  and  the  appraisers  to 
be  duly  sworn."  However,  the  appraisers  are  not  confined  to  the  property  that 
is  "set  out  in  the  schedules."  They  are  to  appraise  all  the  property  belonging 
to  the  estate. 


§    1930  APPRAISAL.  1205 

f raisers,  it  frequently  happens  that  the  appraisers  go  out  and  view  the  prop- 
erty and  make  their  estimates  first,  and  are  sworn  afterwards,  the  appraisal 
not  being  complete  until  after  they  have  been  sworn. 

§  1930.  Methods  of  Arriving  at  Appraisal  Values. — It  is  difficult  to 
lay  down  hard  and  fast  rules  as  to  how  the  appraisers  shall  arrive  at  their 
estimates.     A  few  propositions,  however,  may  be  safely  relied  on. 

Appraisers  must  not  try  to  guess  at  what  the  assets  will  bring  at  bankrupt 
sale  or  forced  sale;  the  assets  may  be  sold  for  three- fourths  of  their  valua- 
tion and  if  the  appraisers  could  be  permitted  to  fix  the  valuation  thus,  the 
circle  would  be  unending,  for  while  they  would  be  trying  to  guess  at  what 
the  purchasers  would  pay,  the  purchasers  would  be  giving  only  three- 
fourths  of  the  guess,  and  so  on.  The  cupidity  of  bargain  hunters  is  not  the 
proper  test. 

In  re  Prager,  8  A.  B.  R.  356  (Ref.  Col.):  "In  appraising  a  stock  of  this 
character,  the  prevailing  cost  to  the  trade  should  be  taken  as  the  actual  value. 
If  the  stock  is  shopworn  or  otherwise  damaged  or  unseasonable,  or  otherwise 
out  of  date,  these  facts,  and  perhaps  others  of  a  like  nature,  may  be  considered 
and  due  allowances  made  for  such  deterioration  or  depreciation  in  value.  But 
the  appraisers  have  no  business  to  anticipate  or  consider  the  cupidity  of  bidders 
who  may  be  looking  for  bargains.  The  object  of  the  appraisement  is  to  inform 
the  court  and  the  creditors  what  the  actual  value  of  the  property  is.  They 
are  not  expected  to  know  or  to  guess  what  the  property  will  bring  at  a  sale. 
It  may  be  sold  in  bulk.  In  that  case  it  would  no  doubt  have  to  be  sold  for  less 
than  cost.  It  may  be  sold  in  parcels.  In  that  case  it  might  bring  more  than  the 
cost  price.  How  it  is  to  be  sold  and  for  how  much  less  than  its  actual  value 
are  questions  to  be  determined  by  the  court  and  the  creditors,  not  by  the  ap- 
praisers." 

The  rules  for  appraisal  naturally  must  vary  with  each  class  of  prop- 
erty. The  appraisers  must  take  into  account  probable  customers  and  the 
extent  of  their  demand.  The  general  rule  for  the  appraisal  of  stocks  of 
merchandise  is  that  the  fair  market  value  should  be  taken,  having  in  view 
the  season,  the  quality,  the  kinds  and  styles,  the  brokenness  of  lots  and  the 
quantities.  The  rules  for  appraising  the  assets  of  a  going  concern  must,  in 
the  nature  of  things,  differ  from  those  applicable  to  the  valuation  of  its 
component  parts ;  and  so,  frequently,  it  is  advisable  to  have  the  appraisal 
returned  alternatively,  as  a  going  concern  and  as  dead  assets.  There  is  no 
rule  against  this  manner  of  appraisal  and  it  certainly  is  natural  and  rational, 
and  is  of  much  assistance  to  creditors  and  purchasers  alike. 

Likewise,  in  most  cases  of  stocks  of  merchandise,  the  appraisal  should  be 
returned  both  at  what  the  articles  would  bring  if  sold  at  retail  and  what 
the  stock  would  bring  if  sold  in  bulk  as  an  entirety.  The  values  should  be 
dififerent,  for  by  selling  in  bulk  the  expense  of  sale  is  cut  down,  though 
the  gross  price  realized  is  likely  to  be  lower. 

The  particularity  with  which  an  appraisement  of  the  bankrupt's  prop- 
erty is  to  be  made  must  depend  somewhat  upon  circumstances,  but  it  must 


1206  REMINGTON    ON    BANKRUPTCY.  §  1930 j^ 

be  general  rather  than  special,  only  such  particularity  being  given  as  will  be 
sufficient  to  reasonably  identify  the  property  in  character  and  quantity  and 
give  a  fair  idea  of  its  value. ^ 

§  1930^.  Reappraisal. — Reappraisal  may  be  ordered.  Although  there 
are  no  special  rules  laid  down  in  the  bankruptcy  decisions  as  to  what  cir- 
cumstances will  warrant  reappraisal;  yet,  in  view  of  the  fact  that  the  judg- 
ment of  the  appraisers  is  sought  precisely  in  order  that  creditors  may  be  in- 
formed as  to  what  price  the  trustee  ought  to  obtain  for  the  assets,  it  would 
seem  that  the  mere  fact  that  the  trustee  reports  his  inability  to  sell  at  the  ap- 
praised value  would  be,  alone,  insufficient  to  warrant  a  setting  aside  of  the 
appraisal  and  an  ordering  of  a  reappraisal.  Showing  certainly  should  also 
be  made  of  mistake  or  incorrect  methods  in  arriving  at  the  values,  to  war- 
rant reappraisal ;  and  the  better  practice,  undoubtedly,  is  to  call  in  the  ap- 
praisers themselves.  Otherwise  where  the  trustee  is  indolent,  or  ineffi- 
cient, appraisals  are  likely  to  be  disregarded,  and  creditors  to  lose  the  benefit 
of  the  independent  judgment  of  experienced  men  as  to  the  value  of  the  as- 
sets of  the  estate. 

9.    In  re  Gordon  Supply  &  Mf^.  Co.,  13  A.  B.  R.  352,  133  Fed.  798  (D.  C.  Pa.). 


CHAPTER  XXXVIII. 

Sale  of  Assets. 

Synopsis  of  Chapter. 

§  1931.  Sale  to  Be  on  Petition  and  Order. 

§  1932.  Equity  Rules  Followed  Where  Act,  Forms  and  Orders  Silent. 

§  1933.  Special  Orders  as  to  Manner  of  Sale. 

§  1934.  As  to  Auctioneers  Conducting  Sale. 

§  1935.  Whether  Sale  to  Be  for  Cash. 

§  1936.  Bids  Both  in  Bulk  and  Parcels  with  Acceptance  of  Greatest  Aggregate. 

§  1937.  Trustee's  Judgment  Ordinarily  of  Controlling  Weight  in  Fixing  Details, 
but  Creditors,  and  Even  Bankrupt,  Heard. 

§  1938.  Ten  Days  Notice  by  Mail  Requisite. 

§  1939.  Public  Auction  of  Real  Estate  to  Be,  Also,  on  Four  Weeks  Advertise- 
ment, and  at  County  Courthouse  or  on  Premises. 

§  1940.  Private  Sales,  Real  Estate  or  Personal  Property,  Advertised  and  Con- 
ducted as   Court  Directs. 

§  1941.  Who  May  File  Petition  to  Sell:   Trustee,   Receiver,   Marshal,  Bankrupt. 

§  1942.  Perishable    Property   May    Be    Sold   without    Notice. 

§  1943.  Sales  before  Adjudication. 

§  1944.  Meaning  of  "Perishability." 

§  1945.  Referee  to   Order   Sale   after   Reference. 

§  1946.  Before  Adjudication  Judge  Alone  to  Order  Sale,  unless  Unable  to  Act. 

§  1947.  To  Be  at  Public  Auction,  unless  Expressly  Authorized  at  Private  Sale. 

§  1948.  For   Good  Cause  Shown  May  Be  at  Private  Sale. 

§  1949.  Sale  Subject  to  Approval  and  to  Be  for  Seventy-Five  per  Cent. 

§  1950.  Trustee's  Sale,  a  Judicial  Sale. 

§  1951.  And   Court   Has   Greater  Discretion  than  in   Other   Sales. 

§  1952.  "Gross    Inadequacy"   Sufficient   to   Refuse    Confirmation. 

§  1953.  But  Mere  Inadequacy,  or  Merely  a  Better  Ofifer,  Insufficient. 

§  1954.  Stifling  of  Competition;  Misconduct  of  Trustee  or  Unfairness  to  Bid- 
ders. 

§  1955.  Bankrupt  May  Be  Bidder. 

§  1956.  May  Accept  Bid  of  Less  than  Seventy-Five  per  Cent. 

§  1957.  Inherent  Power  to  Refuse  Confirmation  or  to  Set  xA.side,  Even  Where 
Not   Expressly  Ordered  "Subject  to  Approval." 

§  1958.  Formal   Approval   Not  Always  Essential  to   Confirmation. 

§  1959.  "Caveat  Emptor." 

§  1960.  Discretion  in  Approving  or  Setting  Aside  Sale  Not  to  Be  Revised, 
except  for  Abitse. 

§  1961.  Resale. 

§  1962.  Summary  Power  to  Compel   Purchaser  to  Complete  Sale. 

§  1931.  Sale  to  Be  on  Petition  and  Order. — No  sale  should  be  made 
without  first  filing  a  petition  and  procuring  an  order  to  sell  from  the  court.^ 
But  confirmation  may  cure  the  failure  to  get  a  previous  order. 

1.    Inferentially,  In  re  Harvey,  10  A.  B.  R.  568,  122  Fed.  745  (D.  C.  Pa.). 

What  petition  to  sell  free  from  liens  shoul'd  contain.  Compare,  In  re  Gran- 
ite City  B'k,  14  A.  B.  R.  408,  137  Fed.  818  (C.  C.  A.  Iowa,  affirming  In  re  Wilka, 
12   A.    B.   R.   727). 


1208  REMINGTON    OX    BANKRUPTCY.  §    1934 

In  re  Harvey,  10  A.  B.  R.  568,  122  Fed.  745  (D.  C.  Pa.):  "The  sale  was 
without  previous  authority  from  the  court,  but  it  was  duly  confirmed,  and 
the  confirmation  was  equivalent  to  a  prior  order." 

Various  forms  have  been  prescribed  by  the  Supreme  Court  for  leave  to 
sell,  and  since  the  forms  and  orders  virtually  amount  to  advance  interpre- 
tations of  the  statute  itself,  the  inference  is  proper  that  sales  are  to  be  made 
only  on  petition. 

§  1932.  Equity  Rules  Followed  Where  Act,  Forms  and  Orders  Si- 
lent.— The  procedure,  where  not  otherwise  prescribed  by  the  Bankruptcy 
Act,  Forms  or  Orders,  will  follow  the  usual  procedure  in  equity  in  the 
United  States  Courts. 

But  where  tlie  Bankruptcy  Act  itself  gives  the  right  to  sell,  or  the  method 
of  selling,  its  provisions  will  prevail  over  those  of  the  Act  of  Congress  of 
1893,  27  U.  S.  Stats.  751. 

In  re  Edes,  14  A.  B.  R.  382,  135  Fed.  595  (D.  C.  Me.):  "Under  the  gen- 
eral rules  of  construction,  it  must  be  held  that,  if  Congress  had  intended  to 
limit  the  sales  of  property  under  the  Bankrupt  Law  to  the  provisions  of  the 
Act  of  1893,  it  would  have  said  so  in  clear  terms.  The  only  limitation  im- 
posed by  the  bankruptcy  statute  is  that  such  sales  must  be  'subject  to  the  ap- 
proval of  the  court.'  Collier  on  Bankruptcy,  520,  and  cases  cited.  The 
Bankruptcy  Law  is  the  last  expression  of  the  legislative  will  upon  the  subject. 
It  clearly  does  not  intend  to  limit  the  method  of  sales  of  property  by  the  pro- 
visions of  the  Act  of  1893.  If  it  did,  referees  and  trustees  would  be  very  much 
limifed  and  harassed  in  their  disposition  of  property — particularly  in  the  dis- 
position of  perishable  property — and  the  purpose  of  the  law  would  be  in  a 
l?rge  degree  defeated.  A  new  statute  which  affirmatively  grants  a  larger  ju- 
risdiction or  power  or  right  is  held  to  prevail  over  any  prior  statute  by  which 
a  limited  power  or  jurisdiction  or  right  less  ample  has  been  granted.  Suther- 
land on  Statutory  Construction,  §  254,  and  cases  cited.  It  must  be  held  that 
the  Bankrupt  Law,  in  ordering  sales,  is  not  limited  by  the  Act  of  March, 
1893." 

§  1933.  Special  Orders  as  to  Manner  of  Sale. — The  bankruptcy  court 
may  make  special  orders  with  regard  to  the  manner  of  conducting  sales, 
provided,  of  course,  they  do  not  contravene  the  provisions  of  the  Bank- 
ruptcy Act  itself,  or  the  Act  of  1893,  or  of  the  orders  in  bankruptcy. 

§  1934.  As  to  Auctioneers  Conducting  Sale. — Thus,  undoubtedly,  in 
a  proper  case  an  experienced  auctioneer  may  be  employed. ^  And  the  em- 
ployment of  special  commissioners  has  been  approved,  in  one  case.^ 

But  in  the  interest  of  the  manifest  spirit  of  economy  of  the  Bankrupt  Act, 
the  employment  of  auctioneers  and  others  should  be  discouraged  except 
when  absolutely  necessary.    It  is  usually  one  of  the  business  duties  of  the 

2.  See  post,  "Costs  of  Administration,"  §  2037. 

3.  Sturgis  V.  Corbin,  15  A.  B.  R.  545,  141  Fed.  1  (C.  C.  A.  W.  Va.). 


^  1938  SALE  OF  ASSETS.  1209 

trustee,  for  which  he  is  presumably  elected,  to  conduct  the  sales  of  the 
bankrupt's  assets.-* 

§  1935.  Whether  Sale  to  Be  for  Cash. — The  courts  have  not  de- 
cided whether  the  sale  must,  in  all  instances,  be  for  cash. 

Compare,  In  re  Shoe  &  Leather  Reporter,  12  A.  B.  R.  284,  129  Fed.  588 
(C.  C.  A.):  "The  District  Court  provided  that  the  minimum  bid  should  be 
■$60,000,  and  that  the  purchaser  might  pay  five-sixths  of  the  purchase  money 
in  bonds  secured  by  the  mortgage  referred  to.  The  other  sixth,  being  not  less 
than  $10,000,  it  ordered  to  be  paid  in  cash.  The  petitioners  claim  that  the 
District  Court  had  no  power  to  order  any  portion  of  the  purchase  price  to 
be  paid  in  bonds,  but  it  is  plain  that  they  cannot  be  prejudiced  by  its  order  in 
that  particular,  so  that  we  need  not  investigate  its  powers  in  reference 
thereto." 

It  would  seem  there  would  be  no  objection  to  a  sale  on  deferred  pay- 
ments, if  the  deferred  payments  are  properly  secured  and  the  eft'ect  is  not 
lo  imduly  prolong  the  administration. 

§  193?).  Bids  Both  in  Bulk  and  Parcels  with  Acceptance  of  Great- 
est Aggregate. — The  bids  may  be  taken  both  in  bulk  and  in  parcels,  and 
the  greater  aggregate  be  accepted. 

§  1937.  Trustee's  Judgment  Ordinarily  of  Controlling  Weight  in 
Fixing  Details,  but  Creditors,  and  Even  Bankrupt,  Heard. — As  to 

wlwither  the  sale  shall  be  public  or  private,  in  bulk  or  in  parcels,  and,  in 
short,  as  to  the  details  of  time,  manner  and  place  of  sale,  etc.,  the  trustee's 
judgment  should  ordinarily  control  ;^  although  undoubtedly,  creditors  are 
•entitled  to  be  heard  as  to  the  advisability  of  the  different  provisions  of  the 
proposed  order  of  sale ;  and  likewise  the  bankrupt,  where  his  interests  are 
measurably  affected.  But,  in  any  event,  the  final  determination  rests  with 
the  court. 

In  re  Columbia  Iron  Wks.,  14  A.  B.  R.  526,  142  Fed.  234  (D.  C.  Mich.): 
"This  controversy  and  that  relative  to  the  question  whether  the  property  should 
be  sold  in  bulk  or  in  parcels,  are  matters  for  determination  by  the  court  and 
not  by  vote  of  creditors." 

§  1938.  Ten  Days  Notice  by  Mail  Requisite. — Ten  days  notice  by 
mail  must  be  given  to  all  creditors  who  are  scheduled  and  to  all  who  have 
filed  claims  whether  scheduled  or  not,  of  all  proposed  sales,  whether  at  pub- 
lic auction  or  private  sale;^  except- that  the  court  may  omit  notice  where 
the  property  is  of  a  perishable  nature. 

4.  See  post,  "Costs  of  Administration,"  §  2037. 

5.  In  re  Columbia  Iron  Wks..  14  A.  B.  R.  526,  142  Fed.  234  (D.  C.  Mich.). 
See  ante,  §  898. 

6.  Bankr.  Act,  §  58  (a) :  "Creditors  shall  have  at  least  ten  days  notice  by 
mail,  to  their  respective  addresses  as  they  appear  in  the  list  of  creditors  of  the 
bankrupt,  or  as  afterwards  filed  with  the  papers  in  the  case  by  the  creditors, 
unless  they  waive  notice  in  writing  of  (4)  all  proposed  sales  of  property." 

Allgair  v.  Fisher,  16  A.  B.  R.  281,  143  Fed.  962  (C.  C.  A.  N.  J.). 


1210  REMINGTON   ON    BANKRUPTCY.  §  1940 

As  heretofore  noted,  one  of  the  abuses  in  the  administration  of  insolvent 
estates  before  the  advent  of  the  Bankruptcy  Act  was  the  shpping  through 
of  sales  made  in  the  interest  of  the  debtor  himself  or  some  favored  creditor. 
An  application  usually  could  be  filed  and  granted  immediately  or  without 
notice  and  the  sale  made  forthwith;  and  the  only  remedy  then  left  open 
to  the  creditor  was  a  fruitless  effort  to  have  the  sale  set  aside  for  fraud 
or  collusion — always  difficult  matters  to  prove.  If  creditors  have  notice 
of  such  sales,  they  can  protect  themselves ;  and  the  very  fact  that  notice 
IS  given  them  operates  to  deter  parties  from  attempting  to  rob  the  estate 
by  secret  and  summary  sales.  Thus  it  is,  that  this  requirement  of  notices 
to  creditors  of  all  proposed  sales  is  one  of  the  safeguards  of  the  purity 
of  bankruptcy  administration.''' 

And  a  sale  made  after  the  time  set  in  the  notice  has  expired,  will  be  set 
asHe. 

Allgair  v.  Fisher,  16  A.  B.  R.  281,  143  Fed.  962  (C.  C.  A.  N.  J.):  "The 
orders  of  the  referee  of  December  24,  1904,  and  March  11,  1905,  had  practi- 
cally expired  by  the  failure  of  the  trustees  to  make  sale  of  the  property,  pur- 
suant to  the  terms  thereof,  either  at  private  or  public  sale,  and  their  inability 
to  make  sale  thereunder  was  disclosed,  and  the  public  sale  had  been  adjourned 
without  day;  I  think  the  referee's  power  in  the  matter  was  for  the  time 
exhausted,  and  that  he  should  then  have  given  a  new  notice  to  the  creditors 
and  lienors.  I  deem  such  notice  not  only  proper,  but  essential,  under  the 
circumstances,  and  hence  that  the  orders  dated  May  24,  1905,  June  1,  1905, 
and  June  15,  1905,  were  unwarranted,  and  should  be   set  aside." 

§  1939.  Public  Auction  of  Real  Estate  to  Be,  Also,  on  Four  Weeks 
Advertisement,  and  at  County  Courthouse  or  on  Premises. — Where 
real  estate  is  to  be  sold  at  public  auction,  the  U.  S.  equity  rules  provide 
that  there  must  be  at  least  four  weeks  advertisement,  once  a  week,  at 
least,  and  that  the  sale  be  made  either  at  the  county  courthouse  or  on  the 
premises.-'^ 

§  1940.  Private  Sales,  Real  Estate  or  Personal  Property,  Adver- 
tised and  Conducted  as  Court  Directs. — Private  sales,  both  of  real 

7.  But  see  In  re  Hawkins,  11  A.  B.  R.  48  (D.  C.  N.  Y.),  where  the  court  seems 
to  assume  that  the  referee  has  discretion  as  to  whether  notice  to  creditors  need 
be  given  at  all.  This  cannot  be  correct  law.  Perhaps  that  was  a  case  of  perish- 
able property  after  all  and  the  statement  of  facts  merely  fails  to  show  it. 

8.  See  27  U.  S.  Stat,  at  L.,  ch.  225,  §§  1,  2,  3,  p.  751,  approved  Mch.  3,  1893: 
"Sec.  1.  That  all  real  estate  or  any  interest  in  land  sold  under  any  order 
or  decree  of  any  United  States  court  shall  be  sold  at  public  sale  at  the  court 
house  door  of  the  county,  parish,  or  city  in  which  the  property,'  or  the  greater 
part  thereof,  is  located,  or  upon  the  premises,  as  the  court  rendering  such  order 
or  decree  of  sale  may  direct. 

"Sec.  2.  That  all  personal  property  sold  under  any  order  or  decree  of 
any  court  of  the  United  States  shall  be  sold  as  provided  in  the  first  section 
of  this  act,  unless,  in  tlie  opinion  of  the  court  rendering  such  order  or  decree, 
it  would  be  best  to  sell  it  in  some  other  manner. 

"Sec.  3.  That  hereafter  no  sale  of  real  estate  under  any  order,  judgment,  or 
decree  of  any  United  States  court  shall  be  had  without  previous  publication  of 
notices  of  such  proposed  sale  being  ordered  and  had  once  a  week  for  at  least 


§  1941  sale;  of  assets.  1211 

estate  and  personal  property,  may  be  made  in  such  manner  as  the  court 
may  direct. 

§  1941.  Who  May  File  Petition  to  Sell:  Trustee,  Receiver,  Mar- 
shal, Bankrupt. — It  is  absokUely  necessary  that  the  petition  to  sell  be 
filed  by  the  trustee,  after  his  election,  for  he  is  the  one  vested  with  title, 
and  all  proceedings  in  behalf  of  the  estate  are  to  be  taken  in  his  name. 
Before  the  election  of  a  trustee,  it  may  be  filed  by  the  receiver  or  marshal, 
if  the  marshal  be  in  charge,  and  perhaps  by  a  creditor,  or  even  by  the  bank- 
rupt himself.^ 

Instance,  by  receiver.  In  re  Becker,  3  A.  B.  R.  412,  98  Fed.  407  (D.  C.  Pa.): 
"In  the  case  now  before  the  court  the  sale  was  made,  not  by  a  trustee,  but 
by  a  receiver;  and  objection  is  raised  to  a  receiver's  power  to  sell  the  prop-* 
erty  of  the  bankrupt.  The  objection  is  based  upon  the  language  of  clause  3 
of  §  2,  which  authorizes  courts  of  bankruptcy  to  appoint  receivers,  'for 
the  preservation  of  estates,  to  take  charge  of  the  property  of  bankrupts  after 
the  fiHng  of  the  petition,  and  until  it  is  dismissed  or  the  trustee  qualified.'  It 
is  argued  that  this  limits  the  power  of  receivers,  and  forbids  them  to  do 
more  than  hold  possession  of  the  bankrupt's  property  during  a  certain  inter- 
val. I  do  not  think  the  argument  is  sound.  The  clause  restricts  the  power 
of  the  court  to  appoint,  confining  it  to  cases  of  absolute  necessity,  and  then 
goes  on  to  state  the  purpose  for  which  the  appointment  may  be  originally 
made.  But,  after  a  receiver  has  once  gone  into  possession,  it  may  become 
necessary  to  sell  the  property  for  the  very  purpose  of  preserving  it,  or  its 
value — which  is,  of  course,  the  essential  matter — either  in  whole  or  in  part. 
In  such  event,  I  think  the  court  has  ample  power  to  order  or  confirm  a  sale, 
either  under  the  power  to  preserve,  implied  by  clause  3  itself,  or  under  clause 
7  of  the  same  section,  which  empowers  the  court  to  'cause  the  assets  of  bank- 
rupts to  be  collected,  reduced  to  money  and  distributed.'  " 

As  long  as  creditors  have  ten  days  notice  by  mail  and  the  final  deed  or 
bill  of  sale  is  made  by  the  trustee,  it  would  seem  enough. ^"^ 

four^  weeks  prior  to  such  sale  in  at  least  one  newspaper  printed,  regularly 
issued  and  having  a  general  circulation  in  the  county  and  state  where  the  real 
estate  proposed  to  be  sold  is  situated,  if  such  there  be.  If  said  property  shall 
be  situated  in  more  than  one  county  or  state,  such  notice  shall  be  published  in 
such  of  the  counties  where  said  property  is  situated  as  the  court  may  direct. 
Said  notice  shall,  among  other  things,  describe  the  real  estate  to  be  sold.  The 
court  may,  in  its  discretion,  direct  the  publication  of  the  notice  of  sale  herein 
provided  for  to  be  made  in  such  other  papers  as  may  seem  proper." 

9.  Compare,  as  to  perishable  property,  Rule  XVIII  (3)^ 

10.  Inferentially,  In  re  Fisher  Co.,  14  A.  B.  R.  3G6,  135  Fed.  223  (D.  C.  N.  J.). 
Effect  of  Pendency  of  Composition  Proceedings  on  Right  to  Sell. — And  the 

pendency  of  composition  proceedings  does  not  divest  the  jurisdiction  to  sell 
although,  unless  composition  proceedings  are  being  delayed  unduly,  undoubt- 
edly jurisdiction  to  sell  is  suspended.  In  re  Fisher  &  Co.,  14  A.  B.  R.  366,  13-5 
Fed.  223  (D.  C.  N.  J."):  "The  first  objection,  namely,  that  a  petition  for  compo- 
sition is  now  pending,  is  not  valid.-  It  is  true  that  an  efifort  to  efifect  a  com- 
position with  the  creditors  of  the  bankrupt  has  been  made,  but  the  money 
necessary  to  pay  taxes  and  other  debts  having  priority  required  to  be  deposited 
by  §  12b  of  Bankruptcy  Act,  has  not  been  deposited,  though  several  months  have 
intervened  since  the  court  declared  that  such  deposit  must  be  made  before  anj' 
composition  could  be  confirmed." 


1212  REMINGTON    ON    BANKRUPTCY.  §  1944 

§  1942.    Perishable  Property  May  Be  Sold  without  Notice.— But 

perishable  property  may  be  sold  without  notice  to  creditors,  if  the  court 
so  orders. 11 

Obiter,  In  re  Edes,  14  A.  B.  R.  382,  135  Fed.  595  (D.  C.  Me.):  "While  this 
General  Order  has  no  force  as  legislation,  and  while  it  is  not  even  a  judicial 
interpretation  of  the  statute,  it  is  an  order  of  the  Supreme  Court  of  the  United 
States,  based  upon  the  bankruptcy  statute.  It  cannot  be  held  to  be  in  dero- 
gation of  such  statute.  Under  its  provisions  a  perishable  estate  may  be  sold, 
even  without  notice  to  the  creditors,  and  the  courts  have  been  very  liberal  in 
their  construction  of  what  is  'perishable.'  The  Federal  courts  have  in  fact 
liberally  interpreted  the  whole  statute,  as  giving  full  equitable  powers  to  the 
court.  For  instance,  although  §  58  provides  that  creditors  shall  have  notice 
of  all  proposed  sales  of  property,  still,  under  the  general  powers  and  discretion 
'given  by  the  court  in  §  70b,  it  is  the  custom  to  order  sales  of  perishable  per- 
sonal property  even  without  notice." 

§  1943.  Sales  before  Adjudication. — As  a  rule,  no  order  of  sale  should 
be  made  until  after  adjudication,  unless  the  property  be  of  such  nature  that 
a  sale  is  necessary  to  preserve  its  value. i- 

The  reason  is  obvious :  before  adjudication  it  cannot  be  certainly  known 
that  the  property  belongs  to  the  creditors.  Moreover,  until  the  appoint- 
ment and  qualification  of  a  trustee  there  is  no  officer  having  title  to  the 
property  in  behalf  of  creditors.  These  reasons  are  particularly  cogent  in 
attempted  sales  of  real  estate  before  adjudication.  Only  by  the  bankrupt's 
consent,  and  doubtfully  then,  will  good  title  pass  to  the  purchaser.  And 
even  in  such  instances  the  ten  days  notice  should  go  to  all  creditors  unless 
the  property  is  also  perishable.  ^^ 

§  1944.  Meaning  of  "Perishability."— "Perishability,"  under  the  Act 
of  1898,  would  seem  to  refer  to  physical  deterioration,  more  than  to  finan- 
cial depreciation  through  Bie  goods  becoming  unseasonable,  although  the 
decisions  are  not  uniform  in  this  regard. 


11.  Rule  XVIII  (3),  Gen.  Orders  in  Bankruptcy:  "Upon  petition  by  a  bank- 
rupt, creditor,  receiver,  or  trustee,  setting  forth  that  a  part  or  the  whole  of  the 
bankrupt's  estate  is  perishable,  the  nature  and  location  of  such  perishable  estate, 
and  that  there  will  be  loss  if  the  same  is  not  sold  immediately,  the  court,  if 
satisfied  of  the  facts  stated  and  that  the  sale  is  required  in  the  interest  of  the 
estate,  may  order  the  same  to  be  sold,  with  or  without  notice  to  the  creditors, 
and  the  proceeds  to  be  deposited  in  court." 

Form  of  Petition  to  Sell  Perishable  Assets. — The  Supreme  Court's  form  No. 
46  is  the  prescribed  form  fi^)r  a  petition  to  sell  perishable  assets.  The  petition 
should  show  the  following  facts;  it  should  describe  the  property;  state  its  na- 
ture and  location;  allege  that  it  is  perishable  and  that  there  will  be  loss  if  the 
same  is  not  sold  immediately. 

12.  In  re  Kelly  Dry  Goods  Co.,  4  A.  B.  R.  528,  102  Fed.  747  (D.  C.  Wis.). 

13.  But  where  a  sale  has  been  ordered  by  the  referee  in  the  absence  of  the 
judge,  before  adjudication,  it  will  not  be  set  aside  where  a  fair  sum  has  been 
realized  and  there  is  no  evidence  of  injurious  eiTect  upon  any  interests.  In  re 
Kelly  Dry  Goods  Co.,  4  A.  B.  R.  528,  102  Fed.  747  (D.  C.  Wis.). 


§    1944  SALE  OE  ASSETS.  1213 

In  re  Beutel's  Sons  Co.,  7  A.  B.  R.  768  (Ref.  Ohio):  "The  question  is  thus 
presented:  I\Iay  a  stock  of  goods  not  physically  nor  intrinsically  perishable, 
be  sold  without  notice  to  creditors  as  perishable  property  under  the  Bank- 
ruptcy Act  of  1898?  The  old  law  of  1867  provided  in  §  5065  as  follows:  'When 
it  appears  to  the  satisfaction  of  the  court  that  the  estate  of  the  debtor  or  a  part 
thereof  is  of  a  perishable  nature,  or  liable  to  deteriorate  in  value,  the  court  may 
order  the  same  to  be  sold  in  such  manner  as  may  be  deemed  most  expedi- 
ent under  the  direction  of  the  messenger  or  assignee,  as  the  case  may  be,  who 
shall  hold  the  funds   received  in  place  of  the  estate   disposed   of.' 

"No  provision  existed  under  the  old  law  requiring  notices  to  creditors  of 
sales  except  in  cases  of  public  sales,  and  then  only  by  advertisement  in  the 
newspapers. 

"On  the  other  hand,  no  provision  is  found  in  the  present  act  permitting 
the  sale  of  any  assets  as  perishable,  but  the  statute  does  specifically  provide 
in  §  58  (4)  that  'Creditors  shall  have  at  least  ten  days'  notice  by  mail  to  their 
respective  addresses  as  they  appear  in  the  list  of  creditors  of  the  bankrupt, 
or  as  afterwards  filed  with  the  papers  in  the  case  by  the  creditors,  unless  they 
waive  notice  in  writing  of — (4)   all  proposed  sales  of  property.' 

"The  Supreme  Court,  however,  has  in  rule  XVIII  (3)  attempted  to  make 
an  exception  to  this  requirement  of  notice  in  all  cases  of  sales  and  has  laid 
down  the  following  order:  'Upon  petition  by  a  bankrupt,  creditor,  receiver 
or  trustee,  setting  forth  that  a  part  of  the  whole  of  the  bankrupt's  estate  is 
perishable,  the  nature  and  location  of  such  perishable  estate,  and  that  there 
will  be  loss  if  the  same  is  not  sold  immediately,  the  court,  if  satisfied  of  the 
facts  stated  and  that  the  sale  is  required  in  the  interest  of  the  estate,  may 
order  the  same  to  be  sold,  with  or  without  notice  to  the  creditors,  and  the 
proceeds   to  be   deposited  in   court.' 

"Congress,  in  passing  the  present  act,  had  constantly  before  it  the  provis- 
ions of  the  old  act,  and  also  the  experience  of  litigants  under  it;  and  it  must 
be  assumed,  as  indeed  the  rules  of  statutory  construction  oblige  us  to  assume, 
that  where  we  find  changes  in  the  present  act  in  regard  to  the  same  subject 
matter  such  changes  are  to  be  considered  as  indicating  a  distinct  change  in  the 
minds  of  the  law  makers.  Where,  therefore,  we  find  the  present  act  providing 
for  ten  days'  notice  to  creditors  of  all  proposed  sales  without  exception,  we 
would  naturally  assume  that  Congress  was  unwilling  to  have  any  sales  made 
without  notice.  Whatever  force  and  effect  the  Supreme  Court's  general  order 
No.  18  has  we  must  be  careful  at  any  rate  to  extend  it  no  further  than  its 
strict  wording  permits,  and  at  any  rate  not  to  give'  it  such  an  effect  as  to 
practically  'restore  the  practice  of  the  old  law  of  1867,  which  Congress  has 
thus  strongly  disapproved. 

"Now  note  the  working  of  the  old  law  of  1867.  It  provides  where  the 
property  'is  of  a  perishable  nature  or  liable  to  deteriorate  in  value.'  Evi- 
dently a  distinction  exists  between  property  that  is  of  a  perishable  nature  and 
that  which  is  simply  liable  to  deteriorate  in  value.  The  first  refers  to  that  which 
has  intrinsic,  physical  perishability — something  that  will  decay  or  die  or  shrink 
or  shrivel,  change  in  its  physical  nature,  whilst  the  latter  is  much  broader, 
covering  that  which  depreciates  in  value  from  whatever  cause,  unseasonable- 
ness,  poor  market,  expense,  etc. 

"The  Supreme  Court's  order  XVIII  under  the  present  law,  however,  speaks 
only  of  'perishable  property'  and  does  not  attempt  to  engraft  an  exception  upon 
the  clear  cut  words  of  the  statute  in  favor  of  property  which  is  liable  merely 
to  deteriorate  in  value. 


1214  REMINGTON    ON    BANKRUPTCY.  §  1948 

"No  doubt  the  careful  framers  of  the  present  act  bore  in  mind  the  scandals 
possible  where  entire  estates  could  be  disposed  of  without  notice,  to  interested 
parties  under  the  easy  term  that  it  is  property  liable  to  deteriora'te  in  value." 

§  1945.  Referee  to  Order  Sale  after  Reference. — After  reference  to 
the  referee,  the  referee  is  the  court  for  the  purpose  of  granting  the  order 
to  sell.i-i 

§  1946.  Before  Adjudication  Judge  Alone  to  Order  Sale,  unless 
Unable  to  Act. — Before  adjudication  orders  to  sell  may  only  be  made 
by  the  judge  ;^^  except,  of  course,  that  in  the  absence  or  disability  of  the 
judge,  the  referee  may  act,  upon  receipt  of  a  certificate  from  the  district 
clerk  of  the  judge's  absence  or  disability. ^*^ 

§  1947.  To  Be  at  Public  Auction,  unless  Expressly  Authorized  at 
Private  Sale. — Sales  must  be  at  public  auction,  unless  expressly  au- 
thorized at  private  sale.^'^  And,  as  noted  ante,  §  1936,  the  bids  may  be 
taken  in  bulk  and  in  parcels,  and  the  greatest  aggregate  offer  be  accepted. 

§  1948.  For  Good  Cause  Shown  May  Be  at  Private  Sale. — Upon 
application  to  the  court,  and  for  good  cause  shown,  the  trustee  may  be 
authorized  to  sell  any  specified  portion  of  the  bankrupt's  estate  at  private 
sale.^^ 

In  re  Edes,  14  A.  B.  R.  382,  135  Fed.  595  (D.  C.  Me.):  "There  can  be  no  ques- 
tion but  that  a,  bankruptcy  court,  under  the  broad  powers  given  by  the  Bank- 
ruptcy Law,  may  order  a  sale  of  either  real  or  personal  property  at  private 
sale." 

And  the  discretion  of  the  referee  in  ordering  a  private  sale  will  not  be 
interfered  with,  except  for  plain  abuse. ^^ 

14.  Official  Forms  42,  43,  44,  45  and  46;  In  re  Styer,  3  A.  B.  R.  424,  98  Fed. 
290  (D.  C.  Pa.);    In  re  Fisher  &  Co.,  14  A.  B.  R.  368,  135  Fed.  223  (D.  C.  N.  J.). 

Journal  Entry  of  Order  to  Sell  Perishable  Assets. — His  order  should  read 
somewhat  as  follows:  "Upon  this  day  of  ,  190 — ,  the  trus- 
tee's (or  receiver's  or  bankrupt's)  petition  for  leave  to  sell  perishable  property 
came  on  for  hearing  without  notice  to  creditors  at  which  hearing  no  adverse 
interest  was  represented  (see  Gen.  Order  No.  XXIII)  (or,  if  the  case  be  so, 
after  hearing  adverse  interests)  and  it  appearing  to  the  satisfaction  of  the  court 
(for  the  court  must  be  'satisfied')  that  the  allegations  of  said  petition  are  true 
and  that  the  property  therein  described  is  perishable  in  its  nature  and  the  loss 
will  result  if  it  be  not  sold  immediately  and  that  the  sale  thereof  is.  required  i:i 
the  interest  of  the  estate  and  that  notice  thereof  should  be  omitted,  now  it  is 
ordered  that  said  petition  be  and  it  hereby  is  granted  and  said  trustee  is  di- 
rected to  sell  said  property  at  public  sale  forthwith  for  not  less  than  three- 
fourths  its  appraised  value  and  without  notice  to  creditors  and  to  deposit  the 
proceeds  thereof  in  the  court  to  await  the  further  orders  of  the  court." 

15.  In  re  Styer,  3  A.  B.  R.  424,  98  Fed.  290  (D.  C.  Pa.). 

16.  In  re  Kelly  Dry  Goods  Co.,  4  A.  B.  R.  528,  102  Fed.  747  (D.  C.  Wis.). 

17.  See  Supreme  Court's  General  Order  No.  XVIII  (1)  and  (2):  "All  sales 
shall  be  by  public  auction  unless  otherwise  ordered  by  the  court." 

18.  Gen.  Order  18   (2). 

19.  In  re  Hawkins,  11  A.  B.  R.  49,  125  Fed.  633  (D.  C.  N.  Y.) :  The  court  ''n 
this  case  seems  to  labor  under  the  misapprehension  that  notice  can  be  dis- 
pensed with  at  tlie  referee's  discretion.  Such  discretion  does  not  exist  except 
in  cases  of  perishable  property. 


§  1950  sale;  of  assets.  1215 

Real  estate  may  be  so  sold  as  well  as  personal  propertv-^*^ 

In  cases  of  private  sale,  the  trustee  must  keep  an  accurate  account  of 

each  article  sold,  and  the  price  received  therefor  and  to  whom  sold ;  which 

account  he  shall  file  at  once  with  the  referee.-^ 

§  1949.  Sale  Subject  to  Approval  and  to  Be  for  Seventy-Five  Per 
Cent. — Both  the  real  and  the  personal  property  shall,  when  practicable,  be 
sold  subject  to  the  approval  of  the  court ;  it  shall  not  be  sold  otherwise  than 
subject  to  the  approval  of  the  court  for  less  than  seventy-five  per  centum 
of  its  appraised  value. -- 

§  1950.  Trustee's  Sale,  a  Judicial  Sale. — A  trustee's  sale  in  bank- 
ruptcy is  a  judicial  sale  in  contradistinction  from  an  execution  sale. 

A  judicial  sale  is  a  sale  of  particular  property  in  the  custody  of  the  court, 
specifically  pointed  out  by  the  court  and  ordered  during  the  pendency  of 
proceedings  concerning  it;  while  an  execution  sale  is  a  sale  of  whatever 
property  belonging  to  the  execution  debtor  the  sherifif  can  seize.  In  judi- 
cial sales,  such  as  are  sales  by  trustees  in  bankruptcy,  the  court  is  the  real 
seller  and  the  trustee  is  its  agent  to  obtain  the  highest  bid — the  sale  is  not 
consummated  nor  does  title  pass  until  confirmation.  By  the  act  of  con- 
firmation, the  sale  becomes  complete  and  the  title  passes.  In  execution  sales, 
on  the  other  hand,  the  court  has  rendered  simply  a  judgment  for  money  and 
is  then  done  with  the  matter.  The  sherifl:  is  the  real  seller  and  title  passes 
at  once  to  the  highest  bidder.  A  result  of  this  distinction  is  that,  in  ex- 
ecution sales,  the  purchaser  immediately  becomes  invested  with  rights  which 
can  only  be  divested  by  showing  that  he  himself,  or  his  agent,  has  been 
guilty  of  fraud ;  while  in  judicial  sales,  such  as  trustee's  sales  in  bankruptcy, 
until  confirmation,  the  socalled  purchaser  has  no  such  rights,  has  no  title 
at  all — he  is  simply  a  preferred  bidder  waiting  for  the  court  to  accept  his 
ofiPer  ;-^  and  the  court  may  refuse  to  accept  his  offer  on  much  weaker 
grounds  than  would  be  required  to  set  aside  a  sale  on  execution,  where  title 
has  already  passed. 

In  re  Harvey,  10  A.  B.  R.  567;  568,  122  Fed.  745  (D.  C.  Pa.):  "In  the  case 
under  consideration,  the  trustee  sold  at  public  sale  certain  real  estate  of  the 
bankrupt,  upon  which  the  city  held  several  liens  for  municipal  taxes.  The 
sale  was  without  previous  authority  from  the  court,  but  it  was  duly  confirmed 
and  the  confirmation  was  equivalent  to  a  prior  order.  I  do  not  doubt  that 
this  was  a  judicial  sale.     17  Am.  &  Eng.  Encycl.  Law,  954,  955." 

Inferentially,  In  re  Shea,  11  A.  B.  R.  211,  126  Fed.  153  (C.  C.  A.  Mass.): 
"But  on  a  true  construction  of  §   70   (b)    the   case  before  us  is  not  one   of   set- 

20.  In  re  Edes,  14  A.  B.  R.  382,  135  Fed.  595   (D.  C.  Me.). 

21.  Gen.  Ord.  18  (2). 

22.  Bankr.  Act,  §  70  (h). 

23.  In  re  Groves,  2  N.  B.  X.  &  R.  31  (Ref.  Ohio).  Inferentially,  In  re  Ethier, 
9  A.  B.  R.  160,  118  Fed.  107  (D.  C.  Wis.);  contra,  Steadman  v.  Taylor,  1  N.  B. 
N.  283. 


1216  REMINGTON    ON    BANKRUPTCY.  §  195S 

ting  aside  a  sale,  but  of  affirming  it.  *  *  *  so  that,  strictly  speaking,  we  are 
within  the  rule  of  Williamson  v.  Berry,  8  How.  495,  546,  12  L.  Ed.  1170,  to  the 
effect  that,  when  a  sale  is  made  subject  to  confirmation,  no  title  vests  until 
it  is   confirmed." 

§  1951.  And  Court  Has  Greater  Discretion  than  in  Other  Sales. — 

And  being  a  judicial  sale,  the  court!  may  refuse  to  accept  bids  and  may 
set  aside  sales  on  lesser  grounds  than  in  other  sales. -^ 

Inferentially,  Pewabic  ^Min.  Co.  v.  INIason,  14ft'  U.  S.  35^:  "It  may  be 
stated  generall}^  that  there  is  a  measure  of  discretion  in  a  court  of  equity,  both 
as  to  the  manner  and  conditions  of  such  a  sale,  as  well  as  to  orderincr  or 
refusing  a  resale." 

§  1952.    "Gross  Inadequacy"  Sufficient  to  Refuse  Confirmation, 

— Therefore,  mere  gross  inadequacy  of  price,  in  bankruptcy,  without  more, 
is  sufficient  to  prevent  confirmation  of  a  trustee's  sale.^'^ 

Obiter,  In  re  Belden,  9  A.  B.  R.  679,  120  Fed.  524  (D.  C.  N.  Y.) :  "This  court 
does  not  doubt  its  power  to  open  this  sale  on  the  ground  of  inadequacy  of 
consideration,  but  to  do  that,  in  face  of  the  opposition  of  all  the  creditors 
interested    in    that    consideration,    would    be    unjustifiable." 

Inferentially,  but  obiter.  In  re  Ethier,  9  A.  B.  R.  160,  118  Fed.  107  (D  C. 
Wis.):  "The  object  of  the  sale  in  question,  under  order  of  the  court,  was  to 
obtain  the  best  price  for  the  stock  of  goods,  through  open  and  unrestricted 
bidding;  and  a  judicial  sale  so  made  will  not  be  set  aside  except  for  gross  in- 
adequacy of  price,  or  for  circumstances  impeaching  the  fairness  of  the  sale." 

§  1953.  But  Mere  Inadequacy,  or  Merely  a  Better  Offer,  Insuffi- 
cient.— But  mere  inadecjuacy  of  price,  unless  it  amounts  to  gross  inade- 
quacy, is  not  sufficient  ground  for  setting  aside  a  sale,  unless  there  be  addi- 
tional circumstances. 

Graffam  v.  Burgess,  117  U.  S.  191:  "In  this  country,  Lord  Eldon's  views 
were  adopted  at  an  early  day  by  the  courts,  and  the  rule  has  become  almost 
universal  that  a  sale  will  not  be  set  aside  for  inadequacy  of  price,  unless  the 
inadequacy  be  so  great  as  to  shock  the  conscience  or  unless  there  be  addi- 
tional circumstances  against  its  fairness;  being  very  much  the  rule  that  has 
always  prevailed  in  England  as  to  setting  aside  sales  after  the  master's  re- 
port has  been  confirmed." 

Sturgis  V.  Corbin,  15  A.  B.  R.  546  (C.  C.  A.  W.  Va.) :  "A  sale  made  under 
a  judicial  decree  will  not,  when  no  misunderstanding  existed  among  the  bid- 
ders, and  when  no  fraud  is  shown,  be  set  aside  for  mere  inadequacy  of  price, 
unless  such  inadequacy  is  so  gross  as  fairly  to  raise  a  presumption  of  fraud. 
The   practice   of  opening  biddings   and   of   setting  aside   sales   made    during   the 

24.  Also,  see  cases  cited  ante  and  post,  §§  1950  and  1952. 

25.  In  re  Groves,  2  N.  B.  N.  &  R.  31  (Ref.  Ohio). 

Evidence  of  true  value:  Price  obtained  by  the  purchaser,  on  resale  of  the 
purchased  goods,  shortly  thereafter,  has  been  held  incompetent.  Sebring  v. 
Wellington.  6  A.  B.  R.  671  (X.*  Y.  Sup.  Ct.  App.).  But  see  strong  dissenting 
opinion.  Compare  also,  In  re  Bloch,  6  A.  B.  R.  300,  109  Fed".  790  (C.  C.  A. 
N.  Y.). 


§  1954  SAI.E  01^  ASSETS.  1217 

progress  of  judicial  proceedings  should  not  be  encouraged,  as  it  is  not  con- 
ducive to  the  interests  of  litigants,  and  it  tends  to  shake  public  confidence  in  the 
validity  and  finality  of  judicial  sales,  and  to  unduly  prolong  litigation.  A 
purchaser  at  a  judicial  sale,  who  has  complied  with  the  terms  thereof,  or 
who  shows  his  willingness  and  ability  so  to  do,  is  not  only  entitled  to  the 
protection  of  the  court,  but  as  a  party  to  the  proceeding,  made  such  by  his 
purchase,  is  so  situated  as  to  be  entitled  to  the  court's  decree  of  confirma- 
tion,  in   the   absence   of   the  inadequacy,   fraud,    or   mistake   before   alluded   to." 

And  merely  a  better  offer,  however  beneficial  to  creditors,  will  not  stiffice 
to  set  aside  the  sale,  unless  misconduct  existed  in  the  sale  amounting  to 
imposition  and  fraud. ^^ 

In  re  Ethier,  9  A.  B.  R.  161,  118  Fed.  108  (D.  C.  Wis.):  "The  fact  of  a  better 
ofifer  subsequent  to  the  sale,  however  beneficial  to  the  creditors,  will  not 
furnish  ground  to  disturb  the  transaction,  after  confirmation,  without  mis- 
conduct in  the  sale  amounting  to  imposition  and  fraud." 

Sturgis  V.  Corbin,  15  A.  B.  R.  547  (C.  C.  A.  W.  Va.) :  "The  advance  ofifer  of 
$7800  [4  per  cent,  increase]  was,  of  itself,  under  the  circumstances  attending 
the  purchase  by  Sturgis,  not  sufficient  to  warrant  the  setting  aside  of  the  sale." 

And  merely  a  prospective  better  bidder,  although  himself  a  creditor, 
where  neither  the  other  creditors  nor  the  bankrupt  are  asking  for  it,  but, 
on  the  contrary,  are  objecting,  cannot  have  a  sale  set  aside,  even  though 
oft'ering  a  better  bid.^'  Confirmation  wilt  not. be  refused  for  inadecjuacy 
of  price  where  the  sale  was  regularly  and  fairly  made,  where  the  objecting 
party  is  a  creditor  who  was  present  and  was  a  bidder  at  the  sale,  even 
though  at  the  time  of  objecting  he  offers  to  bid  slightly  more.-^ 

§  1954.  Stifling  of  Competition;  Misconduct  of  Trustee  or  Un- 
fairness to  Bidders. — Much  more  is  the  stifling  of  competition  or  mis- 
conduct of  the  trustee  sufficient  ground  for  refusing  confirmation. ^^ 

In  re  Shea,  11  A.  B.  R.  210,  126  Fed.  153  (C.  C.  A.  Mass.,  affirming  10  A.  B. 
R.  481):  "In  passing,  we  may  add  that  the  exercise  of  discretion  to  set  aside 
a  sale  would  be  justly  called  for  so  long  as  parties  intending  to  bid  had 
seasonably  advised  the  officer  conducting  the  sale  that  they  so  intended, 
and  were  prevented  from  bidding  without  fault  on  their  part.  Under  such 
circumstance,  whether  the  loss  of  the  opportunity  to  bid  happened  through 
inadvertence  on  the  paft  of  the  officer  conducting  the  sale,  or  through  his  in- 
tention, or  by  any  accident  for  .which  the  intending  bidders  were  not  respon- 
sible,  would   be   immaterial." 

26.  Impliedly,  In  re  Belden,  9  A.  B.  R.  679,  120  Fed.  524  (D.  C.  N.  Y.). 

27.  In  re  Belden,  9  A.  B.  R.  679,  120  Fed.  524  (D.  C.  N.  Y.). 

28.  In  re  Thompson,  2  A.  B.  R.  216  (Ref.  Penna.). 

29.  In  re  Ethier,  9  A.  B.  R.  160,  118  Fed.  107  (D.  C.  Wis.),  the  facts  in  which 
case  are  peculiar:  Intending  purchasers  had  agreed  among  themselves  to  make 
one  bid,  the  highest,  each.  Another  apparent  purchaser  was  really  agent  of  one 
of  them  and  bid  it  in.  Had  the  remaining  purchasers  known  the  facts  they 
would  have  continued  to  bid. 

In  re  Groves,  2  N.  B.  N.  &  R.  31  (Ref.  Ohio). 

In  re  Hawley,  9  A.  B.  R.  61,  117  Fed.  364  (D.  C.  Iowa),  in  which  case  the  trus- 
tee purchased  at  his  own  sale  but  was  allowed  for  the  money  expended  by  him 
for  betterments  on  the  land  as  well  as  for  the  purchase  price. 

2  Rem  B— 2 


1218  REMINGTON   ON  BANKRUPTCY.  §  1955 

Thus,  where  a  trustee  sold  the  bankrupt's  equity  at  private  sale,  without 
giving  notice  thereof  to  an  intending  bidder  according  to  promise,  the 
equity  being  worth  three  times  the  sum  the  trustee  expected  to  receive,  the 
court  set  aside  the  sale  upon,  the  intending  bidder  filing  an  agreement  to 
pay  three  times  as  much  for  the  equity  at  the  next  sale.s^ 

Participation  of  the  purchaser  in  the  misconduct  need  not  be  proved.^i 

And  unfairness  towards  bidders  may  warrant  refusal  of  confirmation.32 

Sturgis  V.  Corbin,  15  A.  B.  R.  547  (C.  C.  A.  W.  Va.) :  "The  advance  in 
the  bid,  it  thus  appears,  was  less  than  4  per  cent,  on  the  sum  at  which  it  had 
been  sold  to  Sturgis.  The  acceptance  of  this  belated  bid,  was,  we  think,  under 
the  circumstances  attending  said  sale,  a  mistake.  This  offer  was  made  by  a 
party  interested  in  the  proceeds  of  the  sale,  one  who  was  thoroughly  familiar 
with  all  the  incidents  connected  with  it,  who  was  well  advised  as  to  the  value 
of  the  property,  and  who  had  himself  been  an  unsuccessful  bidder  during  one 
of  the  times  at  which  the  property  had  been  offered  for  sale.  There  is  an 
entire  absence  of  fraud;  in  fact  no  intimation  of  its  existence  is  made.  It 
is  not  shown  that  any  mistake  or  misunderstanding  existed  among  the  bid- 
ders concerning  the'  property  itself,  or  the  terms  under  which  the  sale  was 
made.  The  additional  offer  was  not  of  such  a  character  as  would  demon- 
strate inadequacy  of  price,  or  justify  a  refusal  to  confirm.  If  a  judicial  sale 
has  been  fairly  conducted,  as  was  the  sale  we  now  consider,  the  rights  of  the 
purchaser  should  be  protected,  not  only  because  it  is  his  due,  but  also  for  the 
purpose  of  protecting  such  sales  from  the  evil  and  chilling  influences  of  insta- 
bility and  doubt." 

§  1955.   Bankrupt  May  Be  Bidder. — The  bankrupt  may  be  a  bidder.^^ 
But  neither  the  trustee,  receiver  nor  referee  may  be  a  purchaser.-^"^ 

30.  In  re  Shea,  11  A.  B.  R.  207,  126  Fed.  15.3  (C.  C.  A.  Mass.). 

Where  a  sale  of  the  bankrupt's  equity  for  its  appraised  value  is  set  aside 
upon  the  petitioner  filing  an  agreement  to  bid  three  times  as  much,  the  omis- 
sion from  the  record  upon  a  revisory  petition,  praying  an  affirmance  of  the 
sale,  of  any  specific  finding  that  the  value  of  the  equity  exceeded  the  amount 
which  it  brought  at  the  sale,  is  not  material,  it  being  assumed  that  the  court 
acted  rightly  and  found  that  the  value  of  the  equity  was  triple  the  price  the 
trustee  was  to  receive  therefor.  In  re  Shea,  11  A.  B.  R.  207,  126  Fed.  153  (C. 
C.  A.  Mass.). 

31.  In  re  Shea,  11  A.  B.  R.  207,  126  Fed.  153  (C.  C.  A.  Mass.);  impliedly.  In 
re  Belden,  9  A.  B.  R.  679,  120  Fed.  524  (D.  C.  N.  Y.);  [1867]  In  re  O'Fallon,  Fed. 
Cases  10,445;  In  re  Groves,  2  N.  B.  N.  &  R.  30  (Ref.  Ohio). 

32.  In  re  Shea,  11  A.  B.  R.  207.  126  Fed.  153  (C.  C.  A.  Alass.). 

But  compare  facts  in  In  re  Mitchell,  15  A.  B.  R.  739  (Ref.  Mass.),  where  the 
court  confirmed  a  private  sale  to  the  bankrupt  who  waited  until  all  bids  were 
in  and  then  offered  a  slightly  higher  bid;  the  court,  however,  refusing  still 
higher  offers  from  creditors  afterwards.  Such  a  sale  was  manifestly  unfair  to 
the  bona  fide  bidders. 

33.  In  re  Mitchell,  15  A.  B.  R.  739  (Ref.  :Mass.);  Clark  z:  Clark,  17  How.  315; 
In  re  Kingman,  5  A.  B.  R.  251  (Ref.  Mass.);  Holbrook  v.  Cone)%  25  Ills.  543; 
[1867]  Phelps  v.  McDonald,  2  McArthur  375;  contra,  Marsh  v.  Heaton,  1  Low 
278. 

It  has  been  held  in  one  case  that  a  bankrupt  repurchasing  from  the  purchaser 
at  the  trustee's  sale  his  own  claim  against  a  person,  cannot  thereafter  enforce 
his  claim  against  an  undisclosed  principal  not  named  as  debtor.  Shesler  v. 
Patton,   17  A.   B.   R.  372,   114  App.   Div.   846. 

34.  In  re  Hawley,  9  A.  B.  R.  61,  117  Fed.  364  (D.  C.  Iowa);  In  re  Mitchell, 
15  A.  B.  R.  739  (Ref.  Mass.).     Bankr.  Act,  §  39  (b)    (3). 


§   1957  SALU  OF  ASSETS.'  1219 

§  1956.   May  Accept  Bid  of  Less  than  Seventy-Five  Per  Cent. — 

The  court  may  accept  a  bid  of  less  than  seventy-five  per  cent,  of  the  ap- 
praised vakie,  without  ordering  a  reappraisal.'^^  Nevertheless,  the  ap- 
praisal should  not  be  disregarded.  In  some  jurisdictions  by  local  rule, 
the  court  will  not  approve  a  sale  at  less  than  two-thirds,  although  it  will, 
of  course,  order  reappraisal  if  good  ground  therefor  exists. 

§  1957.  Inherent  Power  to  Refuse  Confirmation  or  to  Set  Aside, 
Even  Where    Not  Expressly  Ordered  "Subject  to  Approval." — The 

inherent  power  of  the  court  to  disapprove  and  set  aside  an  improper  sale 
made  under  its  order,  is  not  taken  away  by  this  provision  of  §  70  (b)  of 
the  act,  even  where  not  sold  subject  to  its  approval. 

In  re  Shea,  10  A.  B.  R.  481,  122  Fed.  742  (D.  C.  Mass.):  "Section  70  (b) 
*  *  *  provides  that,  when  practicable,  property  shall  be  sold  subject  to  the 
approval  of  the  court.  The  order  to  sell  made  by  the  referee  in  the  case  at 
bar  contained  no  such  limitation,  and  so  the  authority  of  the  court  to  set 
aside  this  sale  must  depend  upon  that  general  authority  to  deal  with  sales 
made  under  its  orders  which  is  inherent  in  a  court  of  bankruptcy.  This  au- 
thority is  not,  I  think,  taken  away  by  the  provision  just  cited." 

In  re  Shea,  11  A.  B.  R.  210,  126  Fed.  153  (C.  C.  A.  Mass.,  affirming  10  A. 
B.  R.  481):  "But  on  a  true  construction  of  §  70b  the  case  before  us  is  not 
one  of  setting  aside  a  sale,  but  of  affirming  it.  As  we  have  already  said,  this 
provision  has  no  such  interpretation  as  that  given  it  by  the  petitioner.  So 
far  from  that,  it  clearly  provides  that  in  every  case  the  sale  shall  be  subject 
to  the  approval  of  the  court  when  practicable,  and  even  the  limitation  'when 
practicable'  does  not  apply  when  the  sale  is  less  than  75  per  centum  of  the  ap- 
praised value.  In  other  words,  under  all  circumstances  the  sale  is  sub- 
ject to  approval  by  the  court  'when  practicable;'  and  there  is  no 
question  in  this  case  that  it  was  practicable  to  obtain  such  approval. 
Therefore  the  question  is  one  of  confirming  and  not  of  setting  aside; 
so  that,  strictly  speaking,  we  are  within  the  rule  of  Williamson  v.  Berry,  8 
How.  495,  546,  12  L.  Ed.  1170,  to  the  effect  that,  when  a  sale  is  made  subject  to 
confirmation,  no  title  vests  until  it  is  confirmed." 

But  if  a  lesser  bid  is  presented  for  approval,  the  burden  of  proof  rests 
on  the  trustee  recommending  the  confirmation,  to  show  that  it  is  proper  to 
accept  a  bid  of  less  than  75  per  cent.-'^*' 

And  a  sale  for  less  than  seventy-five  per  cent,  conveys  no  title,  imless 
confirmed  by  the  coiu't.-^''' 

In  re  Shea,  11  A.  B.  R.  207,  126  Fed.  153  (C.  C.  A.):  "If  a  judicial  tribu- 
nal authorized  to  make  a  judicial  sale  expressly  reserves  the  right  to  approve 
or  disapprove,  it  certainly   would   require   a   very   extreme   case   to  justify   some 

35.  Impliedly,  Bankr.  Act,  §  70  (b) :  "It  shall  not  be  sold  otherwise  than 
subject  to  the  approval  of  the  court  for  less  than  75  per  cent,  of  its  appraised 
value." 

36.  In  re  Groves,  2  N.  B.  N.  &  R.  31  (Ref.  Ohio). 

37.  Bankr.  Act,  §  70  (b). 


1220  REMINGTON  ON  BANKRUPTCY.  §  1959 

Other  tribunal  in  injecting  its  own  discretion.  The  condition  seems  to  be  the 
same  where  the  right  to  approve  or  disapprove  is  expressly  reserved  by- 
statute." 

§  1958.   Formal  Approval  Not  Always  Essential  to  Confirmation. 

— Formal  approval  is,  perhaps,  not  always  necessary  to  effect  a  confirma- 
tion. 

In  re  Shea,  11  A.  B.  R.  211,  126  Fed.  153  (C.  C.  A.  Mass.):  "We  do  not 
undertake  to  say  that  §  70  (b)  requires  always  a  formal  approval." 

Thus,  silent  acquiescence  in  a  sale  for  a  considerable  length  of  time  may 
effect  a  confirmation  f^  or  a  crediting  of  the  proceeds  in  the  trustee's  re- 
port or  account,  and  a  subsec|uent  approval  of  the  report  or  account  by 
the  court,  may  suffice  to  eft'ect  a  confirmation.^^ 

§  1959.  "Caveat  Emptor." — The  rule  of  "caveat  emptor"  prevails 
in  bankruptcy  sales,  as  in  all  judicial  sales,  unless  special  direction  other- 
wise is  made  in  the  order  of  sale.^*^ 

The  sale,  in  the  absence  of  special  warranty  by  the  trustee,  conveys 
simply  whatever  interest  the  trustee  possesses  ;^  ^  but  by  special  warranty 
or  representation,  the  trustee  may  be  bound  by  a  different  rule.  Whether 
he  may,  however,  bind  the  estate  thereby  unless  so  authorized  by  the  order 
of  sale,  is  doubtful. 

The  referee  may  refuse  to  order  the  sale  of  a  speculative  claim,  where 
the  sale  is  sought  merely  for  the  purpose  of  annoyance,  and  where  the 

38.  Obiter,  In  re  Shea,  11  A.  B.  R.  211,  126  Fed.  153  (C.  C.  A.  Mass.). 

39.  In  re  Shea,  11  A.  B.  R.  211,  126  Fed.  153  (C.  C.  A.  Mass.). 

40.  In  re  Mulhauser  Co.,  10  A.  B.  R.  236,  121  Fed.  669  (C.  C.  A.  Ohio);  im- 
pliedly, Owens  V.  Bruce,  6  A.' B.  R.  322,  109  Fed.  72  (C.  C.  A.  S.  C). 

It  is  proper  to  refuse  leave  to  persons  who  are  not  parties  to  the  bankruptcy 
proceedings,  to  come  in  and  assert  rights  in  the  property -sold  where  they  can 
assert  their  rights   equally  against  the   purchaser.     In   re   Mulhauser   Co.,   10   A. 

B.  R.  236,  121   Fed.  669   (C.  C.  A.  Ohio).  » 
Trustee   selling   at   "Invoice   Price,"   where   the   actual   purchase   by   the   bank- 
rupt originally  had  been  made  below  invoice  price.     Purchaser,  having  full   op- 
portunity for  examination  refused  reduction.     Owens  f.   Bruce,  6  A.   B.   R.   322, 
109  Fed.  72  (C.  C.  A.  S.  C).                                                                               • 

The  rule  of  caveat  emptor  will  not  interfere  with  the  court  in  its  discretion 
setting  aside  a  sale  or  granting  a  rebate  of  the  purchase  price  where  the  defect 
is  not  a  defect  of  the  title  or  quality  but  merely  a  failure  to  get  the  quality  of 
articles  advertised  as  being  sold.  Searchy  v.  McCourt,  1  Fed.  Rep.  261;  1 
Md.  147;  3  La.  Ann.  326.  This  rule  would  seem  to  be  restricted  to  cases 
where  the  trustee  could  be  put  in  statu  quo  and  where  the  proportionate  rebate 
is  certain  and  ascertainable. 

If  the  property  has  left  the  custody  of  the  Bankruptcy  Court  that  court  will 
no  longer  protect  one  in  his  possession  of  it,  not  even  though  he  be  a  purchaser 
from  the  trustee.     Briggs  z'.  Stevens,  7  Law  Rep.  281. 

The  purchaser  of  the  trustee's  interests  in  property  is  entitled  to  maintain 
the  same  suits  to  set  aside  preferential  or  fraudulent  transfers  thereof  or  en- 
cumbrances thereon  as  the  trustee  himself  would  have  been  entitled  to  main- 
tain. Bryan  v.  Madden,  15  A.  B.  R.  388,  affirming  11  A.  B.  R.  763,  78  N.  Y. 
Supp.  220.     But  compare,  Shcsler  v.  Patton.  17  A.  B.  R.  372,  114  App.  Div.  846. 

41.  Instance,  attempted  sale  of  buildings  separately  from  leasehold,  where 
the  landlord  claims  they  are  not  severable,  In  re  Gorwood,  15  A.  B.  R.  107  (D. 

C.  Pa.). 


§  1962  SALK  OF  ASSETS.  1221 

gain  to  the  bankrupt  estate  will  be  merely  nominal;^-  but  if  anyone  will 
give  a  substantial  price  for  such  claim,  it  is  no  duty  of  the  trustee  or  court 
to  refuse  to  sell."*-^ 

§  1960.  Discretion  in  Approving  or  Setting  Aside  Sale  Not  to  Be 
Revised,  except  for  Abuse. — The  discretion  of  the  court  in  approving 
or  in  setting  aside  the  trustee's  sale  wall  not  be  revised,  unless  there  has 
been  an  abuse  of  power,  or  the  case  is,  in  other  respects,  extreme.'*^ 

In  re  Shea,  11  A.  B.  R.  207,  126  Fed.  153  (C.  C.  x\.  Alass.) :  "However  all 
this  may  be,  it  should  be  remembered  that,  according  to  the  practice  in  the 
Federal  courts,  an  appellate  tribunal  is  prohibited  from  revising  the  exercise 
of  discretion  in  matters  of  this  kind  by  a  court  having  equitable  jurisdiction, 
unless  there  is  an  abuse  of  power,  or  the  case  is  in  other  respects  extreme. 
There  is  nothing  which  this  record  properly  brings  to  us,  or  even  suggests, 
which  justified  the  probability  of  the  existence  of  an  exception  of  that  char- 
acter." 

Likewise  in  ordering  a  sale. 

Impliedly,  In  re  Sanborn,  3  A.  B.  R.  54,  96  Fed.  551  (D.  C.  Vt.) :  "What 
would  be  a  proper  case  is   a  matter  of  discretion." 

§  1961.  Resale. — Of  course,  after  a  sale  has  been  set  aside,  a  resale  is 
to  be  ordered. -^"^ 

§  1962.   Summary  Power  to  Compel  Purchaser  to  Complete  Sale. 

— The  bankruptcy  court  has  summary  power  to  compel  a  purchaser  to 
complete  his  contract  of  sale. 

Meson  v.  Wolkowich,  17  A.  B.  R.  714,  150  Fed.  699  (C.  C.  A.  Mass.): 
"Wherever  a  receiver,  by  direction  of  the  court  appointing  him,  makes  a 
sale  of  assets  in  his  possession,  the  parties  concerned  in  the  sale  are  bound  to 
recognize  him  as  an  officer  of  the  court;  and  consequently  the  court  appointing 
the  receiver,  not  only  has  power  to  enforce  in  a  summary  manner  the  com- 
pletion of  the  contract  of  sale,  but  the  parties  involved  are  deemed  to  have  con- 
sented to  such  a  proceeding." 

42.  Obiter.  In  re  Gutterson,  14  A.  B.  R.  495  (D.  C.  Mass.). 

43.  In  re  Gutterson,  14  A.  B.  R.  495  (D.  C.  Mass.). 

44.  In  re  Sanborn,  3  A.  B.  R.  54,  96  Fed.  551  (D.  C.  Vt.). 

Instance,  where  reviewing  court  refused  to  interfere,  In  re  Throckmorton,  17 
A.  B.  R.  856  (C.  C.  A.  Ohio). 

And  review  of  an  order  setting  aside  a  sale  does  not  lie  until  a  resale  has  been 
ordered,  made  and  confirmed.  Sturgis  v.  Corbin,  15  A.  B.  R.  543,  141  Fed.  1 
(C.  C.  A.  Va.). 

45.  Instance,  In  re  Fisher  &  Co.,  17  A.  B.  R.  404,  148  Fed.  907  (D.  C.  N.  J.): 
Reimbursement  of  first  purchaser  for  intermediate  outlays  for  improvements. 


CHAPTER  XXXIX. 

Selling  Property  Subject  to  and  Free    from    Liens;  and    Trans- 
ferring Rights  to  Proceeds. 

Synopsis  of  Chapter. 

§  1963.  :May   Be    Sold   Subject   to   Liens. 

§  1964.  If   Not   Mentioned   to    Be    Otherwise,   Sale    Is    Subject   to    Liens. 

§  1965.  May    Be    Sold    Free    from    Liens    and    Liens    Transferred    to    Proceeds. 

§  1966.  Lienholder's    Consent    Not    Necessary. 

§  1967.  Sale   Clear  and  Free  Ordered    before  Validity    or    Priority  Determined. 

§  1968.  But  Not  Where  Lienholder  Who  Desires  to  Bid,  Objects. 

§  1969.  Sale    Subject   to   Some    Liens    Free   from   Others. 

§  1970.  Order   Should   Provide   for   Transfer   of    Rights   to   Proceeds. 

§  1971.  No  Sale  Free  and  Clear  unless  Reasonable  Prospect  of  Surplus  Appear 
or  Lienholder  Requests. 

§  1972.  Parties  Relegated  to  State  Court  Where  Foreclosure  Necessary  to 
Bar   Rights   Not  within  Jurisdiction  of  Bankruptcy   Court. 

§  1973.  Thus,    Where    Inchoate    Dower    Outstanding. 

§  1974.  But,  if  Wife   Consents,   Sale    May   Be   Made   Free   from   Dower. 

§  1975.   Referee    May   Order   Sale    Free   from    Liens. 

§  1976.  Even  Free  from  Lien  of  Taxes. 

§  1977.  Even  before  Validity  and  Priority  of  Liens   Determined. 

§  1978.  Even  Where  Located  Outside  of  State,  Provided  Property  Be  Per- 
sonally  and   in   Actual    Custody. 

§  1979.  And   Consent   of   Parties    Not   Necessary. 

§  1980.   Notice   to   Lienholders   Requisite. 

§  1981.  No  Established  Form  for  Notice. 

§  1982.  "Order   to   Show   Cause,"   Approved    Form    of   Notice. 

§  1983.  Record  of  Referee  to   Show   Notice   and  to   Whom   Given. 

§  1984.  Procedure  in  Referee's  Court  to  Follow  Equity  Rules  Where  Bank- 
ruptcy Rules  Silent. 

§   1985.   How   Lienholder  to  Set  Up   Lien. 

§  1986.  Separate  Accounts  of  Each  Fund  to  Be  Kept. 

§  1987.  Failure  to  Object  to  Sale  without  Separation  Waives  Rights. 

§  1988.  Taking   Additional    Evidence,    after    Sale,    to    Fix    Proportions    of    Fund. 

§  1989.  Expenses  of  Preservation  and  Sale  Paid  Out  of  Particular  Fund  In- 
volved. 

§  1990.   Each    Fund   to    Bear    Its    Own    Expenses   and    Costs. 

§  1991.  Proportionate    Part    Not   to    Be    Charged    against    Each    Lien. 

§  1992.  Costs  and  Expenses  First  Deducted  and  Liens  Paid  Out  of  Remainder. 

§  1993.  General    Costs    of   Administration    Not    Chargeable. 

§  1994.  Trustee's  Attorney's  Fees  and  Expenses  Benefitting  Entire  Fund 
Chargeable  but   Not   Services  for   Litigating   Liens. 

§  1995.  Referee    Has   Authority   to   Tax   Costs   and   Expenses. 

§  1996.  Costs  and   Expenses  Taxable. 

§  1997.  Lienholder  as  Purchaser,  May  Apply  Lien  on  Price,  except  as  to 
Superior  Liens. 


§   1965  SALE  SUBJECT  TO  LIENS,  ETC.  1223 

§  1998.  Trustee's   Deed  or  Bill  of  Sale. 
§  1999.   Remedies    against    Purchaser. 

§  2000.  No     Jurisdiction     of     Suit     by     Third     Party     against     Purchaser     from 
Trustee. 

§  1963.  May  Be  Sold  Subject  to  Liens. — The  property  may  be  sold 
subject  to  liens. ^     Even  subj,ect  to  the  hen  of  taxes. - 

§  1964.  If  Not  Mentioned  to  Be  Otherwise,  Sale  Is  Subject  to 
Liens. — If  the  sale  is  not  expressly  ordered  to  be  free  and  clear  of  liens, 
it  will  be  a  sale  subject  to  liens.^ 

§  1965.  May  Be  Sold  Free  from  Liens  and  Liens  Transferred  to 
Proceeds. — The  property  may  be  sold  free  from  liens  and  encumbrances, 
and  the  liens  be  transferred  to  the  proceeds. 

No  form  was  prescribed  for  this  purpose  by  the  Supreme  Court,  and  no 
special  authorization  of  sales  free  from  liens  is  to  be  found  in  the  statute 
itself;- but  so  far  as  statutory  authorization  is  concerned,  nothing  is  found 
in  the  statute  specially  authorizing  sales  subject  to  liens,  nor  at  private  sale 
nor  of  perishable  property,  and  yet  those  methods  of  sale  are  deemed  proper 
in  bankruptcy.  And  it  would  be  a  serious  defect  were  it  not  permissible  to 
sell  property  in  bankruptcy  free  from  liens,  because  such  is  ordinarily  the 
best  method  of  selling  property.  To  sell  property  free  and  clear  from  all 
liens  and  to  have  all  controversies  relative  to  the  validity  and  extent  of  liens 
thereon  transferred  to  the  fund,  is  likely  to  lead  to  better  prices.  Other- 
wise, the  purchaser  would  have  to  buy  all  the  controversies  along  with  the 
purchase  of  the  property  itself.  And  the  right  to  sell  property  in  the  bank- 
ruptcy court  clear  and  free  from  all  encumbrances,  and  to  transfer  the  liens 
to  the  proceeds,  is  now  beyond  dispute.^ 

1.  In  re  Gerry,  7  A.  B.  R.  459,  112  Fed.  9.58  (D.  C.  Pa.).  Sup.  Court's  C^.'cial 
Form,  No.  44. 

2.  In  re  Gerry,  7  A.  B.  R.  459.  112  Fed.  958  (D.  C.  Pa.). 

3.  In  re  Foundry  &  Machine  Co.,  17  A.  B.  R.  293   (D.  C.  Wis.). 

4.  See  similar  subject  "Marshaling  of  Liens,  etc.,"  ante,  §  196."i,  et  seq.  [1841] 
In  re  Christy,  3  How.  (U.  S.)  292;  obiter,  In  re  Foundry  &  Machine  Co..  17  A. 
B.  R.  293  (D.  C.  Wis.);  In  re  Worland,  1  A.  B.  R.  450,  92  Fed.  893  (D.  C.  la.); 
In  re  Sanborn.  3  A.  B.  R.  54,  96  Fed.  551  (D.  C.  Vt.)  ;  [1841]  Houston  v.  Bank, 
6  How.  486;  [1867]  Ray  v.  Norseworthy,  23  Wall.  128;  In  re  Granite  City  Bk,, 
14  A.  B.  R.  404,  137  Fed.  818  (D.  C.  Md.) ;  instance.  In  re  Kellogg,  10  A.  B.  R. 
11,  121  Fed.  333  (C.  C.  A.  N.  Y.,  affirming  7  A.  B.  R.  632);  inferentiallv,  obiter, 
In  re  Gerdes,  4  A.  B.  R.  346,  102  Fed.  318  (D.  C.  Ohio);  Southern  Loan  &  Trust 
Co.  V.  Benbow,  3  A.  B.  R.  10,  96  Fed.  514  (D.  C.  N.  Car.,  reversed,  on  other 
grounds,  in  3  A.  B.  R.  710);  In  re  Waterloo  Organ  Co.,  9  A.  B.  R.  427.  118  Fed. 
904  (D.  C.  N.  Y.);  impliedly,  In  re  Shoe  &  Leather  Reporter,  12  A.  B.  R.  248, 
129  Fed.  588  (C.  C.  A.  Mass.);  compare,  query,  obiter,  Chauncey  v.  Dyke  Bros., 
9  A.  B.  R.  444,  119  Fed.  1  (C.  C.  A.  Ark.,  affirming  In  re  Matthews,  6  A.  B. 
R.  96). 

Instances,  In  re  Kellogg,  7  A.  B.  R.  632,  113  Fed.  113  (D.  C.  N.  Y.,  affirmed 
in  10  A.  B.  R.  7,  121  Fed.  333);  McNair  v.  Mclntyre,  7  A.  B.  R.  638,  113  Fed.  120 
(C.  C.  A.  N.  C);  In  re  Keller,  6  A.  B.  R.  351,  109  Fed.  131  (D.  C.  Iowa):  Taxes 
on  merchandise  sold  by  trustee  in  bulk  free  and  clear  where  State  Statute  makes 
such  taxes  a  lien.     In  re  Utt,  5  A.  B.  R.  383,  105  Fed.  754  (C.  C.  A.  Ills.). 


1224  REMINXTOX   ON   BANKRUPTCY.  §   1965 

In  re  New  England  Piano  Co.,  9  A.  B.  R.  767,  122  Fed.  937  (C.  C.  A. 
Mass.) :  "The  first  proposition  of  the  petition  is  that  the  District  Court  had 
no  authority  or  jurisdiction  to  order  a  sale  of  the  property  in  question  free 
and  clear  of  incumbrances.  The  petitioner  concedes  the  force  of  the  decisions 
of  the  Supreme  Court  in  In  re  Christy,  3  How.  292,  and  Ray  z'.  Norse- 
worthy,  23  Wall.  128,  already  referred  to;  but  it  claims  that  the  former  was 
under  the  Bankruptcy  Act  of  1841,  and  the  latter  under  that  of  1867,  and 
that  both  of  those  statutes  expressly  conferred  powers  on  the  District  Court 
sitting  in  bankruptcy  which  are  not  given  it  by  the  act  of  1898.  Even  if  this 
were  so,  it  would  not  follow  that  a  decree  should  be  entered  in  favor  of  the 
petitioner.  By  §  2  of  the  act  of  1898  the  District  Courts  as  courts  of  bank- 
ruptcy are  given  'such  jurisdiction  at  law  and  in  equity  as  will  enable  them 
to  exercise  original  jurisdiction  in  bankruptcy  proceedings  in  vacation  in 
chambers,  and  during  their  respective  terms.'  As  we  have  shown  in  other 
opinions,  the  District  Court  sitting  in  bankruptcy  proceeds  in  accordance  with 
the  principles  of  equity,  and  exercises  equitable  powers.  An  order  like  this 
appealed  from  is  clearl}^  within  the  ordinary  jurisdiction  of  courts  proceeding 
on  those  principles  and  exercising  those  powers.  In  re  Christy  fully  rec- 
ognizes this  principle  at  pages  312  and  313.  The  case  was  reaffirmed  in  Nugent 
V.  Boyd,  3  How.  426,  and  Houston  v.  City  Bank,  6  How.  486.  In  this  con- 
nection the  petitioner  claims  that  Ray  v.  Norseworthy  was  rested  on  §  20  of 
the  act  of  1867,  which  gave  special  powers  with  reference  to  creditors  wholly 
or  partially  secured,  offering  proofs  of  debts  against  bankrupt  estates;  but 
an  examination  of  the  opinion  shows  that  the  case  was  merely  supported 
by  the  reference  to  that  section,  and  that  the  first  section  of  the  act  was  re- 
garded as  wholly  sufficient.  Nothing  cited  from  the  act  of  1841  in  In  re  Christy 
vested  in  the  District  courts  sitting  in  bankruptcy  any  greater  powers  than 
are  found  in  the  provisions  of  §  2  of  the  present  statute,  giving  them  juris- 
diction 'at  law  and  in  equity,'  as  we  have  already  said,  and  authorizing  them  to 
'cause  the  estates  of  bankrupts  to  be  collected,  reduced  to  money,  and  dis- 
tributed,' and  to  'make  such  orders,  issue  such  process,  and  enter  such  judg- 
ments, in  addition  to  those  specifically  provided  for,  as  may  be  necessary  for 
the    enforcement   of   the    provisions'    of   the    act." 

In  re  Kest,  11  A.  B.  R.  117,  128  Fed.  651  (D.  C.  Pa.):  "There  can  be  no 
question  as  to  the  authority  of  the  District  Court  *  *  *  .  This  is  essen- 
tial to  a  complete  administration  of  the  bankrupt's  estate,  and  will  be  implied 
from  the  general  provisions  of  the  present  act,  even  though  not  expressly  given, 
as  in   the   preceding  Act  of  1867." 

In  re  Pittelkow,  1  A.  B.  R.  472,  92  Fed.  901  (D.  C.  Wis.):  "Upon  the 
general  question  of  jurisdiction,  I  am  of  the  opinion  that  the  District  Court 
is  vested  with  exclusive  jurisdiction  over  the  property  of  the  bankrupt,  and  with 
sufficient  equity  powers  to  have  all  claims  by  mortgagees  brought  in  and  ad- 
ministered; that  sales  may  be  authorized,  under  proper  circumstances,  free 
and  clear  from  the  mortgages,  or  other  liens,  by  preserving  and  transferring 
the  claims  to  the  fund  thus  provided;  and  that  the  commencement  of  fore- 
closure proceedings  can  be  restrained  to  that  end." 

In  re  Prince  &  Walter,  12  A.  B.  R.  678,  131  Fed.  546  (D.  C.  Pa.):  "But, 
notwithstanding  what  has  been  said  above  about  liens  unaflfected  by  bank- 
ruptcy proceedings,  it  is  in  the  power  of  the  court  to  order  a  sale  clear  and  free 
of  them,  regardless  of  how  they  would  ordinarily  ^tand." 

Sturgis  V.  Corbin,  15  A.  B.  R.  545,  141  Fed.  1  (C.  C.  A.  W.  Va.) :  "The 
order  of  the  court  below  directing  a  sale  of  the  property  clear  of  all  liens,  claims 
and  incumbrances  was,  under  the  circumstances,  a  wise  exercise  of  judicial  dis- 


^    1969  SALE  SUBJECT  TO  LIKNS,  ETC.  1225 

■cretion,  being  such  action  as  tlie  Bankrupt  Act  contemplates  and  provides  for 
in  those  instances  where  the  nature  and  location  of  the  property  make  it  de- 
sirable in  the  interest  of  creditors  that  the  same  be  sold  as  soon  as  practi- 
cable." 

And  it  may  be  sold  free,  even,  from  the  lien  of  taxes  ;^  though  not  to  the 
prejudice  of  the  state  or  municipality. 

§  1966.  Lienholder's  Consent  Not  Necessary. — And  it  does  not  re- 
quire the  lienholder's  consent.'' 

That  property  may  be  sold  clear  and  free,  and  the  liens  transferred  to  the 
fund  by  agreement,  is  clear;"  and  the  agreenfent  may  be  implied.^ 

§  1967.  Sale  Clear  and  Free  Ordered  before  Validity  or  Priority  of 
Liens  Determined. — A  sale  free  and  clear  from  liens  may  be  ordered  be- 
fore the  validity  and  priority  of  the  liens  have  been  determined ;  the  con- 
troversies being  transferred  to  the  funds. ^ 

In  re  Shoe  &  Leather  Reporter,  12  A.  B.  R.  248,  129  Fed.  588  (C.  C.  A.): 
■"After  a  full  investigation,  the  District  Court,  sitting  in  bankruptcy,  ordered 
a  sale  of  all  the  assets,  leaving  all  questions  as  to  what  portions  thereof  are 
covered  by  the  mortgage  and  are  not  covered  by  it  to  be  afterwards  ascer- 
tained and  determined.  Therefore,  so  far  as  the  main  issue  is  concerned,  the 
District  Court  rested  securely  on  our  decision  in  Union  Trust  Company,  Pe- 
titioner." 

§  1968.  But  Not  Where  Lienholder  Who  Desires  to  Bid,  Objects. — 

But  a  sale  free  and  clear,  before  the  priority,  validity  and  extent  of  liens 
have  been  determined,  should  not  be  ordered  over  the  objection  of  a  lien- 
holder  who  might  desire  to  bid  and  use  the  ascertained  value  of  his  lien 
in  part  payment  of  the  purchase  price. ^*^ 

§  1969.  Sale  Subject  to  Some  Liens,  Free  from  Others. — The  sale 
may  be  ordered  subject  to  some  liens  and  free  from  others;  and  failure  to 
mention  a  lien  makes  the  sale  subject  thereto. ^^ 


5.  In  re  Prince  &  Walter,  12  A.  B.  R.  678,  131  Fed.  546  (D.  C.  Pa.);  In  re 
Keller,  6  A.  B.  R.  351,  109  Fed.  131  (D.  C.  Iowa). 

6.  Geo.  Carroll  &-Bro.  Co.  v.  Young,  9  A.  B.  R.  643,  119  Fed.  577  (C.  C.  A. 
Pa.).     See  most  of  the  cases  cited  in  the  preceding  paragraph,  §  1965. 

7.  In  re  Bourlier  Cornice  &  Roofing  Co.,  13  A.  B.  R.  585  (D.  C.  Ky.). 

8.  Chauncey  v.  Dyke  Bros.,  9  A.  B.  R.  444,  119  Fed.  1   (C.  C.  A.  Ark.). 

9.  In  re  Granite  City  Bank,  14  A.  B.  R.  405,  408,  137  Fed.  818  (C.  C.  A.  Iowa, 
affirming  In  re  Wilka,  12  A.  B.  R.  727);  In  re  Union  Trust  Co.,  9  A.  B.  R.  767, 
112  Fed.  937  (C.  C.  A.  Mass.);  instance.  In  re  Waterloo  Organ  Cp.,  9  A.  B.  R. 
427,  118  Fed.  904  (D.  C.  N.  Y.). 

10.  In  re  Saxton  Furnace  Co.,  14  A.  B.  R.  483  (D.  C.  Pa.).    , 

11.  Instance,  ordered  sold  subject  to  first  mortgage,  free  as  to  second  mort- 
gage, taxes  (circumstances  as  to  taxes  peculiar,  however)  and  other  liens,  In  re 
Prince  &  Walter,  12  A.  B.  R.  675,  131  Fed.  546  (D.  C.  Pa.). 

12.  In  re  Foundry  &  Machine  Co.,  17  A.  B.  R.  293  (D.  C.  Wis.). 


1226  REMINGTON    ON    BANKRUPTCY.  §  1971 

§  1970.  Order  Should  Provide  for  Transfer  of  Rights  to  Proceeds. 

— In  selling  free  from  liens  the  order  of  sale  should  provide  for  the  trans- 
fer of  the  liens  to  the  proceeds. ^-^ 

§  1971.  No  Sale  Free  and  Clear  unless  Reasonable  Prospect  of 
Surplus  Appear  or  Lienholder  Requests. — The  bankruptcy  court  gen- 
erally will  not  order  a  sale  free  from  liens,  or  otherwise,  unless  there  is  a 
reasonable  prospect  that  a  surplus  will  be  left  for  general  creditors,  or  some 
lienholder  requests  it:  that  the  interests  of  the  general  creditors  will  be 
advanced  and  the  interests  of  lienholders  not  injuriously  affected. ^-^ 

In  re  Pittelkow,  1  A.  B.  R.  472,  92  Fed.  901  (D.  C.  Wis.):  "It  is,  however, 
the  duty  of  the  court  to  consider  the  interests  of  mortgagees  and  other  secured 
creditors  as  well  as  those  of  the  general  creditors;  and  unless  it  is  apparent 
(1)  that  the  mortgaged  premises  in  the  given  case  will  probably  realize  upon 
a  sale  an  amount  substantially  in  excess  of  the  mortgage,  and  (2)  that  there 
are  no  complications,  by  dower  rights,  conveyances,  or  other  conditions,  which 
require  foreclosure  under  the  mortgage,  the  power  to  proceed  summarily  by 
sale,  including  the  interest  of  the  mortgagee,  should  not  be  exercised."' 

Obiter,  In  re  New  England  Piano  Co.,  9  A.  B.  R.  770,  122  Fed.  937  (C.  C.  A. 
Mass.):  '"It  is  true  that,  ordinarily,  the  court  in  bankruptcy  ought  not  to  inter- 
fere in  this  way  where  it  is  apparent  that  the  estate  has  no  equity  of  redemp- 
tion of  value,  but  this  cannot  be  held  to  be  universally  true  for  reason  which 
we  have  no  occasion  to  state." 

In  re  Styer,  3  A.  B.  R.  424,  98  Fed.  290  (D.  C.  Pa.):  "Assuming  *  *  * 
that  such  power  exists,  it  is  clear  that  the  sale  should  not  be  ordered  unless 
the  court  is  satisfied  that  the  interest  of  general  creditors  would  be  thus  ad- 
vanced, and  that  the  interest  of  the  lien  creditors  would  not  be  injuriously 
affected." 

In  re  Goldsmith,  9  A.  B.  R.  426,  118  Fed.  763  (D.  C.  Tex.):  "In  the  admin- 
istration of  bankruptcy  estates  it  has  been  the  rule  to  carefully  consider 
whether  there  is  a  probable  interest  in  incumbered  property  for  the  general 
creditors;  if  it  be  decided  there  is,  then  to  sell  same,  after  notice,  either  sub- 
ject to  or  free  from  incumbrance,  as  conditions  may  .indicate.  If  sold  free 
from  incumbrance,  it  ought  to  be  provided  that  such  incumbrances,  and  liens 
as  may  be  found  to  exist  should  attach  to  the  proceeds  of  the  sale.  If  it  be 
decided  there  is  no  interest  for  the  general  creditors,  then  the  bankruptcy 
court  should  not  undertake  to  administer  the  property  for  an  absent  lienor. 
To  undertake  its  administration  is  an  abuse  of  discretion  justly  condemned  by 
the  authorities." 

But  where  the  validity  of  liens,  or  the  extent  of  liens  upon  after-acquired 
property,  is  in  dispute,  so  that  the  question  of  a  possible  surplus  is  in  doubt, 
sale,  free  and  clear,  will  be  ordered. ^^ 

13.  In  re  Goldsmith,  9  A.  B.  R.  419,  118  Fed.  763  (D.  C.  Tex.),  quoted  at  § 
1971. 

14.  In  re  Cogley,  5  A.  B.  R.  731,  107  Fed.  73  (D.  C.  Iowa);  obiter.  In  re  Keet. 
11  A.  B.  R.  117,  128  Fed.  651  (D.  C.  Pa.);  In  re  Gibbs,  6  A.  B.  R.  485,  109  Fed. 
627  (D.  C.  Vt.);  In  re  Barber,  3  A.  B.  R.  306,  97  Fed.  547  (D.  C.  Minn.);  In  re 
Shaeffer,  5  A.  B.  R.  248,  105  Fed.  352  (D.  C.  Pa.);  [1867]  In  re  Dillard,  2  Hughes 
190,  Fed.  Cases,  No.  3,912;    instance,  In  re  Alden,  16  A.  B.  R.  380   (Ref.  Ohio.^ 

15.  In  re  New  England  Piano  Co.,  9  A.  B.  R.  772,  122  Fed.  937  (C.  C.  A. 
Mass.). 


§  1974  sale:  subject  to  liens,  etc.  -      1227 

And  the  court  may,  in  its  discretion,  order  a  sale  free  and  clear  of  liens, 
although  the  encumbrances  thereon  equal  the  value  of  the  property. ^^ 

In  re  Keet,  11  A.  B.  R.  117,  128  Fed.  651  (D.  C.  Pa.):  "It  is  not  therefore  a 
matter  of  power,  but  of  discretion,  and  while,  ordinarily,  the  latter  will  not  be 
exercised  in  favor  of  a  sale  where  the  encumbrances  equal  the  value  of  the 
property  *  *  *  yet  there  are  considerations  in  the  present  instance  which 
seem  to  make  it  desirable." 

But  the  costs  of  such  sale  must  be  taken  from  the  fund  realized  from  the 
encumbered  property,  and  must  not  be  taken  from  general  creditors.^''' 

§  1972.  Parties  Relegated  to  State  Court  Where  Foreclosure  Nec- 
essary to  Bar  Rights  Not  within  Jurisdiction  of  Bankruptcy  Court. 

— But  where  foreclosure  is  necessary  to  bar  rights  which  cannot  be  brought 
before  the  bankruptcy  court,  the  bankruptcy  court  will  relegate  the  par- 
ties to  the  state  courts. ^^ 

Obiter,  In  re  Pittelkow,  1  A.  B.  R.  472,  92  Fed.  901  (D.  C.  Wis.):  "Certainly, 
if  foreclosure  is  necessary  to  bar  rights  which  cannot  be  brought  before  the 
court  of  bankruptcy  proceedings,  the  mortgagee  should  have  leave  to  that  end, 
on  proper  showing  of  cause;  otherwise,  he  would  be  compelled  to  bid  for  the 
protection  of  his  mortgage  interest,  without  the  benefits  of  complete  fore- 
closure." 

The  bankruptcy  court  has  power  to  sell  free  from  liens,  but  not  to  "fore- 
close." 

§  1973.  Thus,  Where  Inchoate  Dower  Outstanding. — Thus,  where 
the  wife's  inchoate  dower  is  outstanding,  the  parties  may  be  relegated  to  the 
state  court  where  inchoate  dower  can  be  cut  off.^^ 

§  1974.  But,  if  Wife    Consents,  Sale  May   Be    Made    Free    from 

Dower. — But,  if  the  wife  consents,  a  sale  may  be  ordered  in  the  bankruptcy 
court  free  from  her  inchoate  dower  rights,  and  she  may  be  compensated 
therefor  out  of  the  proceeds.    And  this  practice  is  approved. 

Savage  v.  Savage,  15  A.  B.  R.  599,  141  Fed.  346  (C.  C.  A.  Va.) :  "With  re- 
gard to  the  objection  urged  against  the  order  to  sell  bankrupt's  remaining  real 
estate  free  from  the  wife's  contingent  right  of  dower,  it  is  sufficient  to  say 
that  it  is  nearly  always  desirable,  in  making  sale  of  a  bankrupt's  real  estate,  if 
the  wife  will  consent,  to  sell  free  from  her  inchoate  right  of  dower,  and  to 
compensate  her  by  a  fair  allowance  out  of  the  proceeds  for  her  release  of  that 
right.  It  is  common  practice  to  do  so  when  it  is  possible,  and  we  think  the 
practice  is  to  be  approved,  as  it  gives  the  purchaser  an  unincumbered  title, 
and  ordinarily  results  in  advantage  to  creditors  by  obtaining  a  better  price  for 
a  clear  title  than  can  be  obtained  for  property  the  title  to  which  is  clouded  by 
such  a  possible  incumbrance." 

16.  In  re  Cogley,  5  A.  B.  R.  731,  107  Fed.  73  (D.  C.  Iowa). 

17.  In  re  Cogley,  5  A.  B.  R.  731,  107  Fed.  73   (D.  C.  Iowa). 

18.  In  re  Shaeffer,  5  A.  B.  R.  248,  104  Fed.  973  (D.  C.  Pa.). 

19.  In  re  Shaef¥er,  5  A.  B.  R.  248,  104  Fed.  973  (D.  C.  Pa.). 


1228  REMINGTON  ON  BANKRUPTCY.  §  1979 

And  where  she  does  consent,  then  the  vakie  of  her  dower  right  is  to  be 
computed  in  accordance  with  state  law.-" 

§  1975.  Referee  May  Order  Sale  Free  from  Liens. — The  referee  may- 
order  the  sale  free  from  liens  and  the  transfer  of  the  liens  to  the  proceeds 
of  the  sale. 21 

In  re  Waterloo  Organ  Co.,^  9  A.  B.  R.  427  (D.  C.  N.  Y.) :  "It  is  in  the 
province  of  the  referee  to  direct  the  manner  of  sale  free  and  clear  from  incum- 
brances, and  he  may  preserve  and  transfer  bona  fide  lien  to  the  fund,  arising 
from   the   same." 

§  1976.  Even  Free  from  Lien  of  Taxes. — Even  free  from  the  lien  of 
taxes. 22 

§  1977.  Even  before  Validity  and  Priority  of  Liens  Determined. 

— Even  before  the  validity  of  liens  and  their  priority  have  been  deter- 
mined.^^  But  not  where  there  is  objection  and  one  of  the  lienholders  may 
desire  to  bid  on  the  property  and  use  the  value  of  his  lien  in  part  payment 
of  the  purchase  price.^^ 

§  1978.  Even  Where  Located  Outside  of  State,  Provided  Prop- 
erty Be  Personalty  and  in  Actual  Custody. — Even  where  located  out- 
side the  state,  provided  the  property  be  personalty,  and  be  reduced  to  the 
actual  custody  of  the  trustee. ^^ 

§  1979.  And  Consent  of  Parties  Not  Necessary. — And  consent  of 
parties  is  not  necessary  before  the  referee  may  act. 2*^ 

20.  In  re  Forbes,  7  A.  B.  R.  42  (Ref.  Ohio),  computed  on  equity  of  redemp- 
tion in  Ohio,  whenever  purchase  money  mortgage  exists.  In  re  Hawkins,  9  A. 
B.  R.  598  (D.  C.  R.  I.),  computed  on  entire  value  of  the  land  payable  out  of 
the  equity  of  redemption. 

21.  Obiter,  In  re  Foundry  &  Machine  Co.,  17  A.  B.  R.  293  (D.  C.  Wis.);  obiter, 
Chauncey  v.  Dyke  Bros.,  9  A.  B.  R.  444,  119  Fed.  1  (C.  C.  A.  Ark.,  affirming 
In  re  Matthews,  6  A.  B.  R.  96);  In  re  Sanborn.  3  A.  B.  R.  .54,  96  Fed.  551  (D.  C. 
Vt.);  In  re  Styer,  3  A.  B.  R.  424,  98  Fed.  290  (D.  C.  Pa.);  In  re  ^Matthews,  G 
A.  B.  R.  96,  109  Fed.  603  (affirmed  sub  nom.  Chauncey  v.  Dyke  Bros.,  9  A.  B. 
R.  444,  119  Fed.  1,  C.  C.  A.  Ark.);  In  re  Kellogg,  7  A.  B.  R.  623,  113  Fed.  120-122 
(D.  C.  N.  Y.);  In  re  Pittelkow,  1  A.  B.  R.  472,  92  Fed.  901  (D.  C.  Wis.);  In  re 
Granite  City  Bank,  14  A.  B.  R.  404.  137  Fed.  818  (C.  C.  A.  Iowa,  affirming  In  re 
Wilka,  12  A.  B.  R.  727);  inferentially,  In  re  Saxton  Furnace  Co.,  14  A.  B.  R.  483, 
136  Fed.  697  (D.  C.  Pa.). 

Instances,  In  re  Goldsmith,  9  A.  B.  R.  419,  118  Fed.  763  (D.  C.  Tex.);  In  re 
Prince  &  Walter.  12  A.  B.  R.  675,  131  Fed.  546  (D.  C.  Pa.);  In  re  New  England 
Piano  Co.,  9  A.  B.  R.  767,  122  Fed.  937  (C.  C.  A.  Mass.);  Carriage  Co.  v.  Solanas, 
6  A.  B.  R.  225.  108  Fed.  532  (D.  C.  La.);  In  re  Rosenberg,  8  A.  B.  R.  624,  110 
Fed.  402  (D.  C.  Pa.);  In  re  Keller.  6  A.  B.  R.  351.  109  Fed.  131  (D.  C.  Iowa); 
McXair  v.  Mclntyre,  7  A.  B.  R.  638,  113  Fed.  113  (C.  C.  A.  N.  Car.). 

22.  In  re  Prince  &  Walter,  12  A.  B.  R.  675,  131  Fed.  546  (D.  C.  Pa.);  In  re 
Keller,  6  A.  B.  R.  351,  109  Fed.  131  (D.  C.  Iowa). 

23.  Impliedly,  In  re  Granite  City  Bk.,  14  A.  B.  R.  405,  137  Fed.  818  (C.  C.  A. 
Iowa). 

24.  In  re  Saxton  Furnace  Co.,  14  A.  B.  R.  483,  136  Fed.  697  (D.  C.  Pa.). 

25.  In  re  Wilka,  12  .\.  B.  R.  727,  131  Fed.  904  (D.  C.  Iowa,  affirmed  sub  nom. 
In  re  Granite  City  Bk.,  14  A.  B.  R.  404,  137  Fed.  818). 

26.  Impliedly,  In  re  Granite  City  Bank,  14  A.  B.  R.  404,  137  Fed.  818  (C.  C.  A. 
Iowa,  affirming  In  re  Wilka,  12  A.  B.   R.  727,  131  Fed.  904). 


§  1982  sale;  subject  to  liens,  etc.  1229 

The  property  may  be  sold,  by  consent,  free  from  exemptions,  and  the 
exemptions  paid  out  of  the  proceeds. ^'^  But  such  sale  of  exempt  property 
by  consent  of  parties  will  not  dispense  with  the  requirements  of  §  7  (a)  that 
the  bankrupt  shall  make  formal  claim  in  Schedule  B  (5)  therefor. 

§  1980.  Notice  to  Lienholders  Requisite. — Notice  must  be  given  to  the 
lienholders.-^ 

In  re  Noel,  14  A.  B.  R.  720,  137  Fed.  694  (D.  C.  Md.) :  "That  court  having 
possession  of  the  property,  has  jurisdiction,  upon  notice  to  those  claiming  to 
have  liens  and  incumbrances  upon  it,  to  order  the  property  to  be  sold  by  the 
trustees  free  of  all  incumbrances,  if  the  court,  in  its  discretion,  should  deter- 
mine that  such  a  sale  was  for  the  benefit  of  the  unsecured  creditors;  and  after 
such  a  sale,  having  in  its  control  the  fund  arising  from  the  sale,  it  w^ould  have 
jurisdiction  to  determine  the  conflicting  claims  of  the  parties  whose  lien  had 
been  displaced  as  to  the  property  sold,  and  transferred  to  the  fund  in  the 
court." 

In  re  Foundry  &  Machine  Co.,  17  A.  B.  R.  293,  147  Fed.  828  (D.  C.  Wis.): 
"Notice  to  the  lien  creditors  of  the  application  for  sale  must  not  only  be  given 
but  the  record  must  disclose  affirmatively  that  every  creditor  whose  lien  will 
be  discharged  by  the  sale  has  received  due  notice  of  the  application." 

And  a  sale  cannot  divest  the  lien  of  a  creditor  unless  he  has  been  given 
such  notice,  and  unless  the  sale  has  been  made  free  therefrom. ^^ 

§  1981.  No  Established  Form  for  Notice. — There  is  no  established 
form  for  such  notice.  It  need  not  be  in  conformity  with  the  summons  or 
subpoena  of  plenary  actions,  unless  required  to  be  so  by  local  rule  of  court.^^ 
Yet  notice  by  mail  undoubtedly  would  be  insufficient,  on  default,  to  cut  ofif 
-ights. 

§  1982.  "Order  to  Show  Cause,"  Approved  Form  of  Notice. — An 

"order  to  show  cause"  why  a  certain  act  should  not  be  done,  or  a  certain 
course  pursued,  is  the  regular  and  approved  method  of  giving  notice  of  con- 
templated action  to  parties  to  proceedings  in  bankruptcy,  and  would  prob- 
ably be  the  most  appropriate  form  of  notice  in  the  marshaling  of  liens  and 
sale  of  land.^^ 

27.  See  cases  cited  under  this  head  in  the  chapter  treating  of  exemption*;, 
ante,  §  1089.  Also,  see  In  re  Prince  &  Walter,  12  A.  B.  R.  675,  131  Fed.  546  (D. 
C.  Pa.). 

28.  In  re  Sanborn,  3  A.  B.  R.  54,  96  Fed.  551  (D.  C.  Vt.) ;  In  re  Saxton 
Furnace  Co.,  14  A.  B.  R.  483,  136  Fed.  697  (D.  C.  Pa.);  obiter.  In  re  Gerdes,  4 
A.  B.  R.  347,  102  Fed.  318  (D.  C.  Ala.).  See  cases  cited  ante,  under  "Marshalm.g 
of  Liens,"  §  1963,  et  seq. 

29.  Bassett  v.  Thackera.'16  A.  B.  R.  787,  72  N.  J.  L.  81,  60  Atl.  39;  In  re 
Foundry  &  Machine  Co.,  17  A.  B.  R.  293  (D.  C.  Wis.). 

Consent  of  Lienholder's  Attorney. — Instance,  where  held  insufficient  because 
record  fails  to  show  authority:  In  re  Foundry  &  Machine  Co.,  17  A.  B.  R.  294 
(D.  C.  Wis.).  ^^    ^     ^ 

30.  Compare,  evidently,  In  re  Granite  City  Bk.,  14  A.  B.  R.  404  (C.  C.  \. 
Iowa). 

31.  Kuntz  z:  Young,  12  A.  B.  R.  509,  131  Fed.  719  (C.  C.  A.  Mmn.). 


1230  REMINGTON   ON   BANKRUPTCY.  .  §  1986 

§  1983.  Record  of  Referee  to  Show  Notice  and  to  Whom  Given. 

— And  the  record  of  the  referee  should  show  not  only  that  due  notice  was 
given,  but  what  kind  and  length  of  notice  were  given.^- 

And  to  whom  the  notice  was  given,. mentioning  specially  the  lienholders 
and  others  claiming  to  hold  interests  in  the  property. 

In  re  Saxton  Furnace  Co.,  14  A.  B.  R.  483,  136  Fed.  697  (D.  C.  Pa.):  "More- 
over, the  record  should  show  affirmatively  that  every  creditor  whose  lien  will 
be  discharged  by  the  sale  has  received  notice  of  the  trustee's  application  to  sell. 
The  referee's  general  statement,  that  such  notice  'was  given  to  each  and  every 
general  creditor  and  lien  creditor,'  is  obviously  insufficient.  No  doubt  this  is 
his  opinion,  and  it  may  be  true,  but  his  record  must  show  the  facts  by  which 
other  persons  can  verify  the  correctness  of  his  statement." 

§  1984.  Procedure  in  Referee's  Court  to  Follow  Equity  Rules 
Where  Bankruptcy  Rules  Silent. — In  selling  property  free  from  liens, 
die  method  of  procedure  in  the  referee's  court  is  to  be  gathered  by  anal- 
ogy from  the  procedure  in  other  sales  in  bankruptcy,  aided  by  the  equity 
rules  prescribed  by  the  United  States  Supreme  Court  in  accordance  with 
the  Supreme  Court's  General  Order  No.  XXXVII. ^^ 

§  1985.  How  Lienholder  to  Set  Up  Lien. — It  is  not  necessary  for  a 
secured  creditor  in  such  cases  to  make  proof  in  the  form  prescribed  by  the 
Supreme  Court  for  proof  of  secured  claims :  he  may  simply  file  an  inter- 
vening petition  setting  up  his  lien,  as  in  other  cases. ^-^  But  he  may  make 
proof  in  the  form  prescribed  for  proof  of  a  secured  claim  in  bankruptcy. ^^ 

§  1986.  Separate  Accounts  of  Each  Fund*  to  Be  Kept. — Separate 
accounts  should  be  kept  of  the  proceeds  of  sale  where  liens  are  involved  all 
of  which  are  not  liens  upon  the  entire  property,  so.  that  the  lienholders  may 
have  the  means  of  determining  what  their  respective  rights  are  in  the  pro- 
ceeds.^*^ 

Keyser  v.  Wessel,  12  A.  B.  R.  127,  128  Fed.  281  (C.  C.  A.  Pa.,  affirming  In 
re  Smith,  10  A.  B.  R.  586):  "This  case  is  plainly  distinguishable  from  that  of 
Carroll  &  Bro.  Co.  z'.  Young,  9  Am.  B.  R.  643,  119   Fed.  577,  which  was  decided 

32.  Impliedly,   Gen.   Order   XXIII.      See   ante,   §   562. 

33.  Ccjmpare,  In  re  Pittelkow,  1  A.  B.  R.  472  (D.  C.  Wis.). 

34.  In  re  Goldsmith,  9  A.  B.  R.  419,  118  Fed.  763  (D.  C.  Tex;);  Carriage  Co. 
V.  Solanas,  6  A.  B.  R.  225  (D.  C.  La.).  Apparently,  contra,  In  re  Rosenberg,  16 
A.  B.  R.  465,  144  Fed.  442   (D.  C.  Pa.). 

35.  Burrows  7'.  Grand  Lodge,  13  A.  B.  R.  545,  133  Fed.  708  (C.  C.  A.  Tex.). 

Secured  Creditor  Filing  Proof  of  Claim  Disclosing  Security  but  Claim  Al- 
lowed in  Full  without  Deduction. — Where  tlic  secured  creditor  duly  filed  proof 
of  debt  in  the  prescribed  form,  setting  up  his  security,  and  the  claim  was  al- 
lowed in  full  without  deduction  of  the  value  of  the  securities,  it  will  be  pre- 
sumed the  referee  had  found  the  securities  to  be  of  no  value,  but  it  will  not 
work  a  forfeiture  of  the  lien  where  the  property  is  subsequently  sold.  Bassetr 
V.  Thackara,  16  A.  B.  R.  787,  72  N.  J.  L.  81,  60  Atl.  39. 

36.  Inferentially  and  suggestively,  George  Carroll  &  Bro.  v.  Young,  9  A.  B.  R. 
643,  119  Fed.  577  (C.  C.  A.  Pa..);  impliedly,  In  re  Gerry,  7  A.  B.  R.  461,  112  Fed. 
957  (D.  C.  Pa.). 


§    1987  SALE  SUBJECT  TO  LIEXS,  ETC.  1231 

by  this  court  about  a  j^ear  ago.  In  that  case,  the  lien  creditors  had  been  prompt 
and  persistent  in  asserting  their  rights.  They  had  made  timely  objection  to 
the  property  being  sold  divested  of  their  liens,  and  had  pointed  out  the  very 
difficult}'  which  was  subsequently  brought  forward  as  a  bar  to  their  rights. 
In  that  case,  as  in  this,  it  was  too  late  to  question  the  propriety  of  the  order  of 
sale  which  had  been  made;  but  it  was  not  impossible,  as  it  is  in  the  present 
case,  to  determine  the  proportional  value  of  the  particular  part  bound  by  the 
liens  to  the  gross  purchase  price,  and  hence  the  order  which  was  there  made,  by 
which  the  distribution  was  opened  to  permit  the  lien  creditors  to  prosecute  their 
claims  as  such,  was  both  just  and  practicable.  We  adhere  to  our  decision  in 
Carroll  &  Bro.  Co.  v.  Young,  but  to  the  very  different  circumstances  and  sit^ 
uation  disclosed  by  the  record   now  before  us  it  has  no  application." 

In  re  Klapholz  &  Brien,  7  A.  B.  R.  7C3,  113  Fed.  1002  (D.  C.  Penn.) :  "The 
fund  was  produced  b}'  the  sale  of  all  the  bankrupt's  personal  property,  includ- 
ing the  clothing  manufactured  by  the  claimant,  clothing  manufactured  by  other 
persons,  and  various  other  articles;  and  there  is  no  evidence  concerning  the 
price  for  which  the  suits  in  question  were  sold.  The  claimant  had  notice  of 
the  sale,  which  was  made  by  the  receiver  under  an  order  of  court  and  was 
afterwards  duly  confirmed  without  objection,  and  he  should  have  asked  the 
court  to  direct  this  clothing  to  be  sold  separately,  in  order  that  the  fund  thus 
produced  might  be  earmarked  and  the  validity  of  his  claim  upon  it  be  consid- 
ered. The  court  had  no  knowledge  that  he  was  asserting  a  lien  for  the  manu- 
facture of  these  goods,  and,  as  they  had  passed  out  of  his  possession  into  the 
custody  of  the  receiver,  it  was  his  duty  to  make  seasonable  claim  to  priorit}' 
of  payment.  Otherwise,  he  must  be  held  to  have  taken  the  risk  that  the  goods 
might  be  sold  in  such  a  manner  that  the  proceeds  might  be  indistinguishably 
mingled  with  the  proceeds  of  the  other  property  of  the  bankrupt." 

Obiter,  In  re  Shoe  &  Leather  Reporter,  12  A.  B.  R.  248,  129  Fed.  588  (C.  C 
A.  Mass.) :  "While,  of  course,  we  would  ordinarily  expect  the  District  Court, 
before  selling  property  in  lump  as  to  which  there  are  conflicting  claims,  to  es- 
tablish by  proper  inventory  and  appraisal  the  basis  for  a  distribution  of  the  pro- 
ceeds when  the  title  to  the  portions  of  the  property  in  dispute  is  settled,  yet 
this  record  presents  nothing  definite  with  regard  to  this  proposition  of  the  pe- 
titioners." 

§  1987.  Failure  to  Object  to  Sale  without  Separation  Waives 
Eights. — And  the  Henholder  waives  his  rights  by  faikire  to  object  to  a  sale, 
where  such  separation  of  accounts  is  not  kept.-''' 

Thus,  where  a  landlord,  entitled  to  priority  under  the  state  law  for  one 
year's  rei\t  out  of  the  sale  of  a  tenant's  stock  and  fixtures,  makes  no  ob- 
jection to  a  sale  or  confirmation  of  a  sale  of  the  stock,  fixtures  and  liquor 
license  in  bulk  for  a  lump  sum,  the  landlord's  claim  for  priority  of  rent 
should  be  disallowed,  because  of  the  impossibility  of  determining  how  much 
were  the  proceeds  of  the  stock  and  fixtures  on  which  only  the  landlord  has 
his  lien.ss 

Again,  the  owner  of  a  municipality's  claim  for  taxes  upon  two  parcels 
of  land,  where  the  two  were  part  of  twelve  parcels  sold  for  a  lump  sum, 

37.  In  re  Klapholz  &  Brien,  7  A.  B.  R.  703,  113  Fed.  1002  (D.  C.  Pa.)  quoted 
§  1986;  In  re  Shoe  &  Leather  Reporter,  12  A.  B.  R.  2-48,  250,  129  Fed.  588 
(C.  C.  A.  Mass.)   quoted  §  1986. 

38.  Keyser  r.  Wessell,  12  A.  B.  R.  126,  128  Fed.  281  (C.  C.  A.  Penn.,  affirm- 
ing In  re  Smith,  10  A.  B.  R.  586). 


1232  ri;mington  on  bankruptcy,  §  1989 

he  having  notice  thereof  and  not  objecting  thereto,  has  waived  whatever 
rights  he  might  have  had  had  he  required  separation  of  the  funds  and  pay- 
ment from  the  proceeds  of  the  parcels  covered  by  his  lien/'^^  Likewise, 
where  there  was  a  lien  upon  a  clothing  stock  and  the  clothing  was  sold  to- 
gether with  the  property,  but  no  separate  account  was  kept  nor  ordered 
kept,  although  the  lienholder  was  notified,  and  nothing  was  known  as  to  the 
separate  price  for  which  the  clothing  sold ;  the  lienholder  was  held  to  have 
waived  all  right  to  payment.-*^ 

Similarly,  a  conditional  vendor  of  chattels  or  other  owner  of  interests 
therein  who  has  consented  to  a  sale  of  the  property  involved  waives  his 
right  to  the  value  of  his  specific  property  by  failure  to  have  separate  ac- 
count kept. 

In  re  Great  Western  Mfg.  Co.,  18  A.  B.  R.  259,  152  Fed.  123  (C.  C.  A.  Neb.)  r 
"One  who  acquiesces  in  a  sale  under  an  order  of  the  court  of  his  property 
and  the  estate  of  the  bankrupt  in  one  lot,  and  thereafter  prays  for  a  preference 
in  payment  out  of  the  sale,  is  estopped  from  receiving  a  larger  proportion  of 
the  proceeds  than  the  value  of  his  property  bore  to  the  value  of  the  lot  sold  at 
the  time  of  the  sale." 

But  failure  to  file  exceptions  to  a  return  of  sale  that  did  not  separately 
state  the  several  amounts  realized  for  each  fund,  out  of  the  entire  proceeds, 
does  not  waive  objections  to  the  original  order  to  sell  as  an  entirety  and  to 
the  transfer  of  the  liens  to  the  fund,  where  the  objections  were  made  on  the 
ground  of  the  difficulty  of  separating  the  funds,  the  order  of  sale  also  pro- 
viding that  the  sale  was  to  be  "without  prejudice  to  the  right  of  lien  credit- 
ors to  claim  from  the  fund  derived  from  said  sale  the  amount  of  their  re- 
spective liens. "^1 

§  1988.  Taking  Additional  Evidence,  after  Sale,  to  Fix  Proportions 
of  Fund. — It  would  be  proper  for  the  referee,  sua  sponte,  to  take  additional 
evidence  as  to  the  proportion  of  the  fimds  respectively  assignable  to  each 
lienholder,  after  the  sale,  if  the  sale  were  made  as  an  entirety  without  ar- 
rangement for  separation  of  the  proceeds. 

Obiter,  Geo.  Carroll  &  Bro.  v.  Young,  9  A.  B.  R.  647,  119  Fed.  577  (C.  C.  A. 
Pa.):  "But,  if  the  evidence  on  that  point  was  incomplete,  we  think  that  the 
referee  sua  sponte  should  have  taken  additional  proof  to  show  the  portion 
of  the  purchase  price  representing  the  building  and  its  ground,  apart  from  the 
machinery  and  other  equipment." 

§  1080.  Expenses  of  Preservation  and  Sale  Paid  Out  of  Particular 
Fund  Involved. — The  costs  and  expenses  of  the  preservation  of  the  prop- 

39.  Tn  re  Gerry,  7  A.  B.  R.  461,  112  Fed.  957  (D.  C.  Pa.). 

40.  In  re  Klapholz  &  Brien,  7  A.  B.  R.  703,  113  Fed.  1002  (D.  C.  Penn.). 

41.  George  Carroll  &  Bro.  v.  Young,  9  A.  B.  R.  643,  119  Fed.  577  (C.  C. 
A.  Pa.). 


§   1993  SAI.E  SUBJECT  TO  LIENS,  ETC.  1233 

crty  involved  and  of  its  sale  are  to  be  paid  out  of  the  particular  fund  derived 
from  the  sale  of  such  property.'*^ 

.  In  re  Utt,  5  A.  B.  R.  383,  105  Fed.  758  (C.  C.  A.  Ills.):  "The  mortgaged 
property  having  been  sold  by  the  trustee  in  bankruptcy  under  the  order  of  the 
District  Court,  it  is  equitable  and  right  that  the  expenses  of  the  sale,  including 
advertisement,  appraisement,  if  appraisement  was  required  by  law,  revenue 
stamps,  and  compensation  to  the  trustee  not  exceeding  that  of  the  master  in 
chancery  if  the  sale  had  been  made  by  him  under  the  decree  of  the  state  court, 
should  be  paid  out  of  the  proceeds  of  the  sale;  but,  in  so  far  as  it  was  directed 
that  attorneys,  the  clerk  and  the  marshal  should  be  paid  for  services  in  the 
bankruptcy  proceedings  not  directly  connected  with  the  sale,  or  in  the  suit  for 
an  injunction,  the  order  made  was  without  justification  in  law  or  equity.  This 
includes  the  $100  directed  to  be  paid  to  the  attorney  for  the  trustee,  for  whose 
assistance,  in  connection  with  the  sale,  there  could  have  been  no  necessity." 

§  1990.  Each  Fund  to  Bear  Its  Own  Expenses  and  Costs. — And  each 
fund  is  to  bear  its  own  expenses  and  costs. 

In  re  Cogley,  5  A.  B.  R.  731,  107  Fed.  73  (D.  C.  Iowa) :  "It  sometimes 
happens  that  lienholders  desire  to  obtain  a  title  from  the  trustee,  either  through 
a  public  sale  made  by  him,  or  by  a  direct  conveyance;  and  in  such  cases  the 
trustee  can  generally  obtain  some  small  sum  for  conveying  the  title,  which  will 
enure  to  the  benefit  of  the  general  creditors.  *  *  *  jj^  j-j-ig  case  at  bar  *  *  * 
the  trustee  carried  through  a  sale  for  the  benefit  of  the  mortgagees  saving  them 
the  costs  of  a  foreclosure  suit,  and  then  paid  the  costs  of  this  sale  out  of  the 
money  in  his  hands  realized  from  the  sale  of  assets  on  which  the  mortgagees 
had  no  lien  whatever.  If  the  creditors  had  excepted  *  *  *  the  action  *  *  * 
would  be  set  aside  as  a  clear  error." 

§  1991.  Proportionate  Part  Not  to  Be  Charged  against  Each  Lien. 

— A  proportionate  part  of  the  expenses,  etc.,  cannot  be  charged  against  each 
lien  in  accordance  with  its  share  of  the  proceeds.-*^ 

§  1992.  Costs  and  Expenses  First  Deducted  and  Liens  Paid  Out 
of  Remainder. — The  costs  and  expenses  are  first  in  the  order  of  priority  in 
such  sales;  and  are  to  be  first  deducted,  and  the  liens  are  to  be  paid  out  of 
the  remainder,  in  the  order  of  their  priority.-*^  Thus,  costs,  expenses  and 
taxes  have  precedence  over  dower."*  ^ 

§  1993.    General  Costs  of  Administration  Not  Chargeable. — Only 

42.  In  re  Cogley,  5  A.  B.  R.  731,  107  Fed.  73  (D.  C.  Iowa);  In  re  Prince  & 
Walter,  12«A.  B.  R.  681,  131  Fed.  546  (D.  C.  Pa.).  Compare,  In  re  Tebo,  4  A. 
B.  R.  235,  101  Fed.  419  (D.  C.  Va.),  where  the  rule  is  stated  even  more  broadly, 
and  erroneously  so. 

43.  McNair  v.  Mclntyre,  7  A.  B.  R.  638,  113  Fed.  113  (C.  C.  A.  N.  C,  reversing 
In  re  Sanderlin,  G  A.  B.  R.  384,  109  Fed.  857,  D.   C.  N.  C). 

44.  McNair  v.  Mclntyre,  7  A.  B.  R.  638,  113  Fed.  113  (C.  C.  A.  N.  C.) ;  In  re 
Prince  &  Walter,  12  A.  B.  R.  681,  131  Fed.  546   (D.   C.  Pa.). 

45.  In  re  Forbes,  7  A.  B.  R.  42  (Ref.  Ohio). 

2  Rem  B— 3 


1234  re;mington  on  bankruptcy.  §  1996 

the  costs  and  expenses  of  the  sale  of  the  particular  property  may  be  taxed 
against  the  fund :  general  costs  of  administration  may  not  be  so  charged.^*^ 

In  re  Prince  &  Walter,  12  A.  B.  R.  681,  131  Fed.  546  (D.  C.  Pa.):  "A  sale 
of  the  property  free  of  liens  may  undoubtedly  be  ordered,  but,  if  this  is  done, 
the  proceeds  must  be  applied  to  their  satisfaction,  undiminished  by  anything 
except  the  costs  of  sale,  or  the  expenses,  if  any,  which  have  been  undertaken 
for,  and  result  to,  their  benefit.  They  are  not  concerned  with  the  bankruptcy 
proceedings  outside  of  this,  and  cannot,  therefore,  be  charged  with  the  cost 
of  instituting  them  or  carrying  them  on." 

But  even  the  expenses  of  a  receiver  in  the  state  court  may  be  charged 
against  the  fund  of  the  secured  creditor,  if  such  fund  benefited  thereby.'^''' 

§  1994.  Trustee's  Attorney's  Fees  and  Expenses  Benefiting  En- 
tire Fund  Chargeable  but  Not  for  Services  in   Litigating  Liens. — The 

trustee's  attorney's  fees  and  other  expenses  incurred  in  behalf  of  the  entire 
fund  are  chargeable  against  the  fund,  even  to  the  loss  of  the  lienholder,  but 
the  fees  for  contesting  liens  in  behalf  of  general  creditors  are  not  chargeable 
against  the  fund  but  against  the  general  creditors,  to  be  paid  for  out  of  the 
general  estate.^ ^ 

§  1995.  Referee  Has  Authority  to  Tax  Costs  and  Expenses. — The 

referee  has  authority  to  tax  the  costs  and  expenses.-*'' 

§  1996.  Costs  and  Expenses  Taxable. — The  costs  and  expenses  gen- 
erally taxable,  are  as  follows :  the  expense  of  publishing  or  advertising  the 
sale  ;^^  of  abstract  and  insurance,  if  necessary  ;^i  expense  of  referee  in 
sending  the  notices  of  sale  required  by  law  to  be  sent;  appraiser's  fees  for 
appraisal  of  the  property  sold;  trustee's^^  expenses  in  caring  for  the  prop- 
erty involved.^3 

46.  In  re  Utt,  5  A.  B.  R.  383,  105  Fed.  754  (C.  C.  A.  Ills.);  In  re  Frick,  1  A. 
B.  R.  719  (Ref.  Ohio);  Stewart  v.  Piatt,  101  U.  S.  731;  In  re  Goldville  Mfg.  Co., 
10  A.  B.  R.  552,  118  Fed.  892  (D.  C.  S.  C). 

But  compare,  In  re  Allison  Lumber  Co.,  14  A.  B.  R.  78,  137  Fed.  643  (D.  C. 
Ga.). 

Contra,  In  re  Tebo,  4  A.  B.  R.  250,  101  Fed.  419  (D.  C.  W.  Va.).  Contra,  as 
to  petitioning  creditor's  attorney  fees,  In  re  Erie  Lumber  Co.,  17  A.  B.  R.  700, 
150  Fed.  817  (D.  C.  Ga.).  But  this  case  on  the  facts  is  reconcilable  with  the  rule, 
since  the  petitioning  creditor's  attorney  helped  preserve  the  fund. 

47.  In  re  Allison  Lumber  Co.,  14  A.  B.  R.  78,  137  Fed.  643  (D.  C.  Ga.). 

48.  In  re  Waterloo  Organ  Co.,  17  A.  B.  R.  312,  147  Fed.  814  (D.  C.  N.  Y.). 

49.  In  re  Scott,  7  A.  B.  R.  710  (Ref.  Mass.).  Inferentially,  In  re  Todd,  6  A. 
B.  R.  88,  109  Fed.  265  (D.  C.  N.  Y.). 

Where  a  secured  creditor  is  given  the  regular  ten  days'  notice  by  mail  of  the 
proposed  sale  of  the  property  covered  by  his  security  free  from  liens  and  neg- 
lects to  protest  at  the  time  set  for  the  hearing  of  the  application  and  after- 
wards seek  to  take  advantage  of  the  fact  that  the  sale  reduced  his  security,  all 
the  costs  will  be  taxed  against  him.  In  re  Goldsmith,  9  A.  B.  R.  419,  118  Fed. 
763  (D.  C.  Tex.). 

50.  In  re  Prince  &  Walter,  12  A.  B.  R.  681,  131  Fed.  546  (D.  C.  Pa.);  In  re 
Utt,  5  A.  B.   R.  383,  105  Fed.  754  (C.  C.  A.  Ills.). 

51.  In  re  Prince  &  Walter,  12  A.  B.  R.  681,  131  Fed.  546  (D.  C.  Pa.)., 

52.  In  re  Utt,  5  A.  B.  R.  383,  105  Fed.  754  (C.  C.  A.  Ills.). 

53.  In  re  Prince  &  Walter,  12  A.  B.  R.  681,  131  Fed.  546  (D.  C.  Pa.),  in  which 
case  the  expense  of  running  a  hotel  pending  sale  was  allowed. 


§   1996  SALE  SUBJECT  TO  LIEXS,  ETC.  1235 

But  the  expenses  of  continuing  the  business  for  the  benefit  of  general 
creditors  may  not  be  charged  against  the  fund  to  the  detriment  of  a  good 
and  vahd  hen  thereon,  \yhere  the  Henor  did  not  participate  nor  consent.^'* 

Expense  of  the  trustee  for  attorneys'  fees  in  fihng  the  petition  for  leave 
to  sell,  for  examining  the  abstract,  getting  the  parties  into  court,  and  for 
other  services  redounding  to  the  general  benefit  of  the  fund  are  chargeable, 
as  a  first  lien,  on  the  fund  ;^^  but  not  attorneys'  fees  for  other  services.^® 

And  there  can  be  no  allowance  therefrom  for  the  bankrupt's  nor  the  pe- 
titioning creditors'  attorneys'  fees  not  connected  with  the  direct  preserva- 
tion of  the  property  sold.^" 

Liddon  &  Bro.  t-.  Smith,  14  A.  B.  R.  204,  135  Fed.  43  (C.  C.  A.  Fla.) :  "It 
seems  manifest  to  us  that  the  services  rendered  by  the  attorney  J.  M.  Calhoun, 
nominally  for  the  bankrupt,  had  no  legitimate  connection  with  the  preservation 
of  the  estate,  and  that  under  the  conditions  existing  it  would  be  most  inequi- 
table to  allow  his  account  for  fees  therefor,  to  take  rank  of  the  mortgagee's 
claim  as  a  charge  against  the  proceeds  of  the  sale  of  the  mortgaged  property." 

Nor  for  services  performed  by  the  trustee's  attorney  in  behalf  of  general 
creditors  in  endeavoring  to  defeat  liens,  etc.^^ 

Nor  for  a  mortgagee's  attorney,  even  in  states  where  it  is  legal  to  stip- 
ulate for  attorney's  fees  on  foreclosure,  if  the  mortgage  only  provides  there- 
for in  the  event  of  "foreclosure."^^ 

In  re  Roche,  4  A.  B.  R.  369,  101  Fed.  956  (C.  C.  A.  Tex.):  "The  fees,  to  be- 
come a  charge  against  the  debtor  or  his  property,  must  mature  according  to 
the  confract  of  the  parties.  It  follows  that  if  the  attorney's  fees  in  this  case  be- 
came payable  only  upon  the  foreclosure  of  the  trust  deed  by  suit  in  the  usual 
form,  as  by  bill  in  equity,  or,  according  to  the  practice  in  Texas,  by  petition  pray- 
ing for  a  foreclosure,  with  all  parties  claiming  adversely  before  the  court,  they 
would  not  be  collectible  in  a  proceeding  where  the  trustee  in  bankruptcy  had 
sold  the  property  and  distributed  the  proceeds,  although  the  same  end  might 
have  been  attained  in  securing  the  payment  of  the  debt  of  the  mortgagee.  In 
other  words,   although   the   one   proceeding  might   have   been   the   equivalent   of 


54.  In  re  Bourlier  Cornice  &  Roofing  Co  ,  13  A.  B.  R.  585,  133  Fed.  958  (D. 
C  Ky.). 

55.  Inferentially,  In  re  Utt,  5  A.  B.  R.  383,  105  Fed.  754  (C.  C.  A.  Ills.). 

56.  In  re  Utt,  5  A.  B.  R.  383,  105  Fed.  754  (C.  C.  A.  Ills.);  In  re  Waterloo 
Organ  Co.,  9  A.  B.  R.  427,  118  Fed.  904  (D.  C.  N.  Y.). 

57.  In  re  Goldville  Mfg.  Co.,  10  A.  B.  R.  552,  118  Fed.  892  (D.  C.  S.  C.) ;  In  re 
Frick,  1  A.  B.  R.  719  (Ref.  Ohio).  To  similar  efifect,  In  re  Prince  &  Walter,  12 
A.  B.  R.  681,  131  Fed.  546  (D.  C.  Pa.);  contra.  In  re  Meis.  18  A.  B.  R.  704  (Ref. 
Ky.).  Apparently,  contra,  In  re  Erie  Lumber  Co.,  17  A.  B.  R.  770,  150  Fed.  817 
(D.  C.  Ga.) :  But  this  case  may  be  reconciled  with  the  rule  on  its  facts  for 
there  the  petitioning  creditors'  attorneys  had  aided  in  the  preservation  of  the 
fund.  Apparently,  contra.  In  re  Duncan,  2  A.  B.  R.  321  (D.  C.  Tex.):  But  this 
case  states  no  reasons  and  is  not  to  be  considered  of  much  weight. 

58.  See  ante,  §  1994. 

59.  But  compare,  In  re  Waterloo  Organ  Co..*  17  A.  B.  R.  300,  147  Fed.  814 
(D.  C.  N.  Y.),  where  a  trustee  for  mortgage  bondholders  was  allowed  compen- 
sation and  attorney's  fees. 


1236  REMINGTON   ON    BANKRUPTCY.        '  §   1999 

the  other,  and  accomplished  the  same  purpose,  still  the  attorney's  fees  could 
only  be  recoverable  upon  the  happening  of  the  very  contingency  as  to  which 
the  parties  had  contracted." 

But  the  statutory  lien  of  the  plaintiff's  attorney  for  fees  on  foreclosure 
of  a  mechanics'  lien  is  to  be  recognized  in  bankruptcy,  and  the  trustee  may 
not  make  a  settlement  in  disregard  thereof.'^*^ 

Commissions  of  the  referee,  one  per  cent,  on  the  amount  realized  over 
and  above  the  expenses,  are  properly  chargeable ;  likewise,  commissions  of 
the  trustee,  which  may  be  allowed  in  such  sums  as  the  court  may  deem  right, 
but  not  to  exceed  the  statutory  rate  of  six  per  cent,  on  the  first  rive  hun- 
dred dollars,  four  per  cent,  on  the  next  thousand,  two  per  cent,  on  all  over 
fifteen  hundred  dollars  and  less  than  ten  thousand  dollars  and  one  per  cent, 
on  all  above  ten  thousand  dollars.  And  the  trustee's  commissions,  accord- 
ing to  the  better  practice,  should  not  be  allowed  in  excess  of  the  compen- 
sation that  would  have  been  allowed  a  master  in  chancery  had  the  sal,e 
been  made  by  him  under  decree  of  the  state  court.^^  But  the  six  per  cent., 
&c,  must  not  twice  be  computed,  once  on  the  first  $500  of  the  special  fund 
and  again  on  the  first  $500  of  the  general  fund. 

§  1997.  Lienholder  as  Purchaser,  May  Apply  Lien  on  Price,  except 
as  to  Superior  Liens. — Where  the  purchaser  is  one  of  the  lienholders,  he 
may  apply  the  value  of  his  lien  upon  the  purchase  price,  except,  of  course, 
as  to  liens  superior  to  his  own ;  and  his  receipt  should  be  accepted  as  part 
payment.^  2 

§  1998.  Trustee's  Deed  or  Bill  of  Sale. — No  form  for  a  deed  or  bill  of 
sale  by  the  trustee  has  been  prescribed.  In  general  the  deed  should  follow 
the  analogy  of-  assignee's,  receiver's  or  administrator's  deeds  as  prescribed 
by  local  statute  or  custom.*^^ 

§  1999.  Remedies  against  Purchaser. — Where  the  purchaser  defaults 
in  payment  there  are  several  different  rem\edies  available,  dependent  on  the 
facts  of  the  case. 

Among  other  remedies,  the  trustee  may  resell  and  charge  the  purchaser 
with  the  difference.^-* 

60.  In  re  Adamo,  18  A.  B.  R.  180,  151  Fed.  716  (D.  C.  N.  Y.). 

61.  Impliedly,  In  re  Utt,  5  A.  B.  R.  383,  105  Fed.  754  (C.   C.  A.  Ills.). 

62.  In  re  Waterloo  Organ  Co.,  9  A.  B.  R.  427,  118  Fed.  904  (D.  C.  N.  Y.); 
In  re  Saxton  Furnace  Co.,  14  A.  B.  R.  483,  136  Fed.  697  (D.  C.  Pa.). 

But  lienholders  purchasing  in  the  mortgaged  property  at  foreclosure  sale 
cannot  require  that  the  rents  collected  therefrom  by  the  trustee  in  the  mean- 
time be  used  in  reimbursing  him  for  taxes  paid  by  him  that  are  a  lien  at  the 
time  of  purchase;  In  re  Hollenfeltz,  2  A.  B.  R.  499,  94  Fed.  629  (D.  C.  Iowa). 

63.  See  form  of  trustees'  deed,  post,  Appendix. 

64.  Instance,  Snyder  v.  Bougher,  16  A.  B.  'R.  792  (Penn.  Sup.  Ct.),  which  was 
the  case  of  a  sale  of  a  saloon  stock  and  fixtures  conditioned  on  the  transfer  of 
the  license  to  the  purchaser,  where  the  purchaser  made  no  effort  to  get  the 
license  transferred  but  abandoned  the  purchase. 


§    2000  SALE  SUBJECT  TO  LIENS,  ETC.  1237 

§  2000.  No  Jurisdiction  of  Suit  by  Third  Party  against  Purchaser 
from  Trustee. — No  jurisdiction  exists  in  the  bankruptcy  court  to  enter- 
tain a  suit  brought  by  a  third  party  against  the  purchaser  for  specific  per- 
formance of  a  contract  relative  to  the  property  sold  by  the  trustee,  even 
though  injunction  against  the  trustee's  delivery  of  the  deed  to  the  purchaser 
is  part  of  the  remedy  sought,  and  neither  litigant  objects  to  the  juris- 
diction.^^ 

65.  Henrie  v.  Henderson,  16  A.  B.  R.  617,  145  Fed.  316  (C.  C.  A.  W.  Va.,  re- 
versing In  re  Henderson,  15  A.  B.  R.  760). 


PART  VII. 

Costs  o^  Administration,  Distribution  and  Closing  of  Estatiss.^ 


1.  For  costs  other  than  those  of  administration,  see  various  subjects.  In  the 
orderly  arrangement  of  the  treatise,  the  subjects  of  the  collection  and  sale 
of  the  assets  belonging  to  general  creditors  and  their  separation  from  the 
property  of  third  persons  and  from  that  of  the  bankrupt,  having  been  discussed, 
naturally  is  reached,  next  in  order,  the  subject  of  costs  and  expenses  of  ad- 
ministration and  the  distribution  of  the  remainder  in  dividends  to  creditors. 


CHAPTER  XL. 

Costs  and  Expenses  of  Administration. 
Synopsis  of  Chapter. 

§  2001.  Jurisdiction  to  Tax  Costs. 

§  2002.  May  Be  Taxed  by  Referee. 

§  2003.  May  Be  Taxed  against  Successful  Party,  "for  Cause."  , 

§  2004.  No  Showing  of  "Cause"  Requisite  Where  Taxed  against  Unsuccessful 
Party. 

§  2005.  Stenographer's  Fees  Taxable  as  Costs. 

§  2006.  Employment  of  Stenographer  at   Expense  of  Estate. 

§  2007.  Compensation  Not  to  Exceed  Ten  Cents  per  Folio  for  Taking  and  Tran- 
scribing. 

§  2008.  Costs  in  Contesting  Claims  before  Election  of  Trustee  Not  Taxable 
against  Estate. 

§  2009.  No  Costs  in  Personam  against  Parties  in  Summary  Proceedings,  Not 
Personally  Appearing. 

§  2010.  No  Part  of  General  Costs  of  Administration  to  Be  Taken  Out  of  Prop- 
erty Not  Forming  Part  of  Assets  for  Administration. 

§  2011.  Policy  of  Act,  Strictest  Economy. 

§  2012.  Preliminary  Deposits  for  Referee,  Clerk  and  Trustee. 

DIVISION  1. 

§  2013.  First    "Priority" — "Actual    and    Necessary    Cost    of    Preserving    Estate 

Subsequent  to  Filing  Petition." 
§  2014.  What  Included  in  Term. 

DIVISION  2. 

§  2015.  Second    "Priority" — Reimbursement    of    Petitioning    Creditors,    and    of 

Creditors   Recovering  Concealed  Assets. 
§  2016.  Reimbursement  of  Creditors  Recovering  Concealed  Assets,  etc. 
§  2017.  Trustee  to  Be  Given  First  Opportunity. 
§  2018.  Disallowance  of  Unjust  Claims  before  Election  of  Trustee. 

DIVISION  3. 

§  2019.  Third  Priority — "Costs  of  Administration." 

§  2020.  Equity  Rules  to  Govern  Order  of  Precedence  in  Class  Three. 

§  2021.  Indemnifying   Court    Officers    and   Advancing   Moneys   for    Expenses. 

§  2022.  Reimbursement  of  Expenses  Advanced. 

§  2023.  No  Reimbursement  of  Original  Deposit  except  to  Petitioning  Creditors. 

§  2024.  Nor  of  Attorney's  Fees  Paid  by  Bankrupt  in  Advance. 

§  2025.  No  Reimbursement  of  Bankrupt  for  Care  of  Exempt  Property. 

§  2026.  Reimbursement  to   Follow  Order  of  Priority  of  Expenses  Themselves. 

§  2027.  Probable  Order  of  Priority. 

suddivision  "a". 

§  2028.   Referee's   Expenses. 

§  2029.  "Expenses"  Not  Covered  by  Statutory  "Compensation"  of  Referee  and 
Trustee. 


1242  REMINGTON    ON    BANKRUPTCY. 

§  2030.  What  Are  Proper  Expenses  of  Referee. 

§  2031.  No  Reimbursement  Where  Expenses  Not  Required  by  Act  or  Rules. 

§  2032.   Method  of  Apportioning-  Expenses. 

SUBDIVISION    "b". 

§  2033.  Expenses  of  Receivers  and  Trustees. 
§  2034.  Rent  for  Use  and  Occupation. 
§  2035.  Computed  at  Lease  Rate. 
§  2036.  Expense  of  Conducting  Business. 
§  2037.  Auctioneer. 
§  2038.  Premium  on  Bond. 

§  2039.  Not  Necessary  to  Pay  Expenses  Out  of  Pocket    iarst,  Then  to  Be  Al- 
lowed Reimbursement. 
§  2040.   Cost  and  Expenses  of  Litigation. 
§  2041.  Attorney's  Fees  Incurred  by  Trustees  and  Receivers. 

SUBDIVISION    "c". 

§  2042.  Allowable  Attorneys'  Fees. 

§  2043.  Clerical  Work  or  Ordinary  Business  Advice  Not  to  Be  Charged  ijr 
at  Professional  Rates. 

§  2044.  For  Many  Services  Attorney  to  Seek  Pay  from  Own  Client,  Not  from 
Estate. 

§  2045.  The  Fees  Allowed  Must  Be  "Reasonable." 

§  2046.  "Reasonableness"  Left  to  Sound  Judicial   Discretion     >!   C  lurt. 

§  2047.  Various  Elements  to  Be   Considered,  Each   Having  Modifying  Efifect. 

§  2048.  Sixth   Element,   in   Bankruptcy   Cases,   "Economy." 

§  2049.  Items  Properly  to  Be  Grouped  According  to  Separate  Controversies 
Involved  and  Estimate  Made  as  to  Each  Group. 

§  2050.  "Retainer  Fees,"  No  Place  in  Bankruptcy. 

§  2051.  Mere  Incidental  Benefit  from  Services  in  Opposing  Adjudication,  etc.. 
Not  Sufficient. 

§  2052.  Showing  to  Be  Made  of  Propriety  and  Reasonableness. 

§  2053.  Notice  to  Creditors  Not  Requisite,  unless  by  Local  Rule. 

§  2054.  Trustee's  and   Receiver's  Attorney's   Fees. 

§  2055.  Not  to  Employ  Attorney  to  Do  Ordinary  Business  Duties  of  Trustee. 

§  2056.  Fees  Allowable  for   Investigating  and  Resisting  Improper   Claims. 

§  2057.  But  Creditors  Not  So  Entitled  Even  for  Successful  Objections  to  Claims 
before  Election  of  Trustee. 

§  2058.  No  Fees  for  Preparation  of  Papers  Where  Supreme  Court's  Forms 
Adequate. 

§  2059.  Whether  Trustee  Allowed  Attorney's  Fees  for  Own  Professional  Serv- 
ices. 

§  2060.  Attorneys  for  Creditors  Co-Operating  with  Trustee's  or  Receiver's  At- 
torney Not  Entitled. 

§  2061.  Exhausting  Entire  Estate  in  Attorney's  Fees  in  Efforts  to  Discover 
Assets. 

§  2062.   Fee   Bills,  Properly,   Should  Be  Itemized.      ' 

§  2063.  Petitioning  Creditors'   Attorney's   Fees. 

§  2064.  Is  Matter  of  Right. 

§  2065.  Only  One  Fee,  Irrespective  of  Number  of  Attorneys. 

§  2066.  Apportionment  Where   Intervening  Creditors  Assist. 

§  2067.  Apportionment  in   Cases   of   Consolidation. 


COSTS  AND  EXPENSES  OE  ADMINISTRATION.  1243 

§  2068.   For  What   Services   Allowable   to   Petitioning   Creditors. 

§  2069.  Allowance  Not  to  Be  on  Basis  of  Plaintiffs'  in  Creditors'  Bills. 

§  2070.  "Amount  Involved,"  Not  Entire  Estate  but  Only  Surplus  over  Valid 
Liens. 

§  2071.  No  Fees  to  Petitioning  Creditors  for  Objecting  to  Claims  at  Election 
of  Trustee. 

§  2072.  Nor  for  Examination  of  Bankrupt  after  Appointment  of  Trustee. 

§  2073.  But   Allowable   for   Pursuing  Property   before   Adjudication. 

§  2074.  None  for  Services  after  Election  of  Trustee. 

§  2075.  No  Allowance  in  General  Out  of  Mortgaged  Property  Sold. 

§  2076.  Review  of  Allowance  of  Petitioning  Creditor's  Fees  by  Appeal. 

§  2077.  Bankrupt's   Attorney's    Fees. 

§  2078.  In  Involuntary  Cases,  Confined  to  Services  Rendered  While  Bankrupt 
in  Performance  of  Duties  Prescribed  by  Law. 

§.  2079.  Actual  Benefit  to  Estate  Not  Test,  However. 

§  2080.  Services    Must    Be    Reasonably  Necessary    and   Actually    Rendered. 

§  2081.  Must  Be  Professional  Legal  Services,  and  Not  Merely  Clerical  or  Busi- 
ness. 

§  2082.  Legal  Assistance  in  Preparing  Schedules,  Examining  Claims  at  First 
Meeting,  etc..  Proper. 

§  2083.  "Amount  Involved"  Not  Entire  Estate,  but  Only  Surplus  over  Valid 
Liens. 

§  2084.  No  Allowance  Out  of  Mortgaged  Property,  except  for  Mere  Preser- 
vation. 

§  2085.  And  None  for  Services  in   Opposing  Bankruptcy   Proceedings. 

§  2086.  For   Attendance    at   Bankrupt's    Examination    Allowable. 

§  2087.  Whether   Fees  Allowable  for  Petition  for   Discharge,   etc. 

§  2088.  No  Allowance  for  Bankrupt's  Admission  in  Writing  of  Inability  to  Pay 
Debts,  etc.,  nor  for  Services  in  Aid  of  Adjudication;  nor  in  Contests 
over  Exemptions. 

§  2089.  Bankrupt's  Fee  Allowable  More  Discretionary  in  Voluntary  than  in  In- 
voluntary Cases. 

§  2090.  Test  in  Voluntary  Cases,  in  General. 

§  2091.   Preliminary   Consultations   May   Be   Charged   for   in   Voluntary   Cases. 

§  2092.  Application  for   Receiver  or   Other   Provisional   Remedy   Allowed   for. 

§  2093.   Only  One  Fee  to  Be  Allowed. 

§  2094.   Bankrupt  Paying  Attorney  in  Advance. 

§  2095.  All  Payments  to  Attorney  in  Contemplation  of  Bankruptcy  Governed 
by  §  60   (d). 

§  2096.  Whether  Different  Principles  Govern  from  Those  W^here  Allowed  Out 
of  Estate. 

§  2097.  Under  §  60  (d)  Must  Be  for  Benefit  Estate  or  in  Furtherance  of  Admin- 
istration. 

§  2098.  Prepaid  Fee  to  Be  "Reasonable"  and  Subject  to  Re-Examination. 

§  2099.  Summary  Jurisdiction  over  Attorney  to  Require.  Repayment  of  Excess. 

§  2100.   Prepayment-  before  Filing  Petition,  or  at  Any  Time  before  Adjudication. 

§  2101.  Prepayment  Effected  by  Giving  Security. 

SUBDIVISION    "d". 

§  2102.  Referee's  Compensation. 

§  2103.  Referee's    Commissions    Computed   on   Disbursements   to   "Creditors." 
§  2104.  Thus,    Commissions    on   Disbursements   to   Priority    and   Secured    Cred- 
itors. 


1244  REMINGTON    ON   BANKRUPTCY.  §    2003 

§  2105.  Property  Sold  Free  of  Liens  When  Lienholder  Purchaser. 

§  2106.  In  Composition  Cases  Referee  to  Receive  One-Half  of  One  per  Cent. 

§  2107.  "Twenty-Five  Cents  for  Each  Claim  Filed,"  Part  of  "Compensation." 

§  2108.  Trustee's  Compensation. 

§  2109.  Commissions  Computed  on  Disbursements  for  Expenses  and  to  Cred- 
itors. 

§  2110.  Except  That  in  Composition  Cases  Computed  Only  on  Disbursements 
to  Creditors. 

§  2111.  Whether  "Disbursement"  Includes  Proceeds  of  Property  and  Trust 
Funds  Surrendered  to  Adverse  Claimants,  and  Exempt  Property  Sold 
by  Trustee. 

§  2112.  Entitled  Even  Where  Outside  Agreement  to  "Credit"  Exists  and  Actual 
Money  Does  Not  Pass. 

§  2113.  No  Absolute  Right  to  Full  Commissions:  Less  May  Be  Allowed  or 
All  Allowance  Withheld. 

§  2114.  Apportionment  Where  Three  Trustees  or  Successive  Trustees. 

§  2115.  Extra  Compensation  for  Conducting  Business. 

§  2116.  But  Not  to  Exceed  Rate  for  Trustee's  Ordinary  Services. 

§  2117.  No  Additional  Compensation  Allowable  in  "Any  Form  or  Guise." 

§  2118.  Receiver's  Compensation. 

.§  2119.  Receiver's  Maximum  Allowance  Properly  Not  to  Exceed  Trustee's. 

§  2120.  Appeal   and   Review   of   Expenses,   and   Costs    of  Administration. 

SUBDIVISION    'V. 

§  2121.  Appraisers'   Fees. 

§  2122.  Witness  Fees  and  Mileage. 

§  2123.  Bankrupt  Not  Entitled  to  Witness  Fees. 

§  2124.  But  to  Reimbursement  of  Actual  Expenses  Where  Attending. 

§  2125.  But  None  Where  Voluntarily  Removing  Residence  after  Bankruptcy  In- 
stituted. 

§  2126.  Whether  Officers  and  Directors  of  Bankrupt  Corporation  Entitled  to 
Witness  Fees. 

§  2127.  Witness  Fees  for  Attendance  without  Subpoena  Equally  Allowable. 

§  2128.  Amount  of  Witness  Fee. 

§  2129.  Marshal's  Fees. 

§  2130.  Marshal   May   Demand   Indemnity. 

§  2131.  May  Charge  Reasonable   Fee  for  Services  on   Petition  to   Show  Cause. 

§  2132.  Marshal  and  Receiver  Entitled  to  Reasonable  Compensation,  Besides 
Expenses,  on  Seizures  under  §  2   (3). 

§  2001.  Jurisdiction  to  Tax  Costs. — Costs  may  be  taxed  by  the 
bankruptcy  court  against  parties  and  against  estates.^ 

§  2002.  May  Be  Taxed  by  Referee. — They  may  be  ordered  paid  by 
the  referee,  as  to  matters  before  him.- 

i§  2003.  May  Be  Taxed  against  Successful  Party,  "for  Cause."— 

They  may,  for  cause,  be  taxed  against  the  successful  party .^ 

1.  Bankr.  Act,  §  2  (18):  "Tax  costs,  whenever  they  are  allowed  by  law,  and 
render  judgments  therefor  against  the  unsuccessful  party,  or  the  successful 
party,  for  cause,  or  in  part  against  each  of  the  parties,  and  against  estates,  in 
proceedings  in  bankruptcy." 

2.  Inferentially,  In  re  Todd,  6  A.  B.  R.  88,  109  Fed.  265  (D.  C.  N.  Y.). 

3.  In  re  Todd,  6  A.  B.  R.  88,  109  Fed.  265  (D.  C.  N.  Y.). 


§    2007  COSTS  AND  EXPENSES  OF  ADMINISTRATION.  1245 

§  2004.  No  Showing  of  "Cause"  Requisite  Where  Taxed  against 
Unsuccessful  Party. — It  is  not  necessary  to  show  cause  therefor  where 
the  costs  are  taxed  against  the  unsuccessful  party;  as,  for  instance,  where 
taxed  against  the  unsuccessful  claimant  to  property  in  the  custody  of  the 
bankruptcy  court.^ 

§  2005.  Stenographer's  Fees  Taxable  as  Costs. — Stenographer's 
fees  may  form  part  of  the  costs  taxed  against  parties,  as  well  as  against 
the  estate. 5 

§  2006.   Employment  of  Stenographer  at  Expense  of  Estate. — A 

stenographer  may  be  authorized  by  the  court,  on  application  of  the  trustee, 
and  his  compensation  be  taxed  against  the  estate,  on  general  examinations 
of  bankrupts  and  witnesses  and  on  other  proceedings,  and  where  not  in- 
cluded in  costs  adjudged  in  favor  of  a  successful  party  against  the  trustee. 
Where  taxed  against  the  estate  on  general  examinations  of  witnesses  and 
in  cases  where  the  estate  is  not  the  unsuccessful  party,  the  employment 
of  the  stenographer  must  have  been  authorized  by  the  court  on  applica- 
tion of  the  trustee.^    ' 

In  re  Todd,  6  A.  B.  R.  88,  109  Fed.  265  (D.  C.  N.  Y.) :  "The  rule  established 
by  the  late  I\Ir.  Justice  Blatchford  in  this  court,  and  ever  since  followed  in  re- 
gard to  stenographer's  fees,  was  that  when  not  provided  for  by  law,  they  could 
not  be  taxed  in  any  cause,  except  upon  a  written  stipulation  between  the  at- 
torneys.    *     *     * 

"The  Bankruptcy  Act  of  1898  contains  but  a  single  provision  authorizing  the 
employment  or  payment  of  stenographers,  namely;  §  38a  (5),  which  provides 
that  upon  the  application  of  the  trustee,  the  referee  may  authorize  the  employ- 
ment of  stenographers  at  the  expense  of  the  estate,  at  a  compensation  not  to 
exceed  ten  cents  per  folio  for  reporting  and  transcribing  the  proceeding. 

"The  authority  thus  given  to  the  referee,  it  will  be  noticed,  can  only  be  ex- 
ercised upon  the  application  of  the  trustee;  the  expense  is  in  the  first  instance 
a  charge  against  the  estate,  and  it  is  not  to  exceed  ten  cents  per  folio. 

"The  above  express  provision  and  the  absence  of  any  other,  prevent  imposing 
any  further  charge  for  stenographer's  fees,  or  the  taxation  of  any  other,  except 
in  pursuance  of  some  stipulation  made  by  the  parties  to  the  cause. 

"In  the  present  case  there  was  no  such  stipulation;  but  as  the  stenographer's 
notes  were  rendered  desirable  and  the  application  therefor  was  in  consequence 
of  the  claimant's  contesting  demands,  and  the  controversy  has  been  adjudged 
against  the  latter,  it  is  proper  that  this  necessary  expense  to  the  estate  should 
be  taxed  against  the  claimant,  and  it  is  therefore  allowed  to  the  extent  of  ten 
cents  per  folio,  which  is  one-half  of  the  bill  rendered." 

§  2007.  Compensation  Not  to  Exceed  Ten  Cents  per  Folio  for 
Taking  and  Transcribing. — Stenographer's  fees,  when  taxable  against 

4.  In  re  Todd,  6 'A.  B.  R.  88,  109  Fed.  265  (D.  C.  N.  Y.). 

5.  In  re  Todd,  6  A.  B.  R.  88,  109  Fed.  265  (D.  C.  X.  Y.). 

6.  Bankr.  Act,  §  38  (a)  (5)  :  "Upon  the  application  of  the  trustee  during  the 
examination  of  the  bankrupts,  or  other  proceedings,  authorize  the  employment 
of  stenographers  at  the  expense  of  the  estates  at  a  compensation  not  to  ex- 
ceed ten  cents  per  folio  for  reporting  and  transcribing  the  proceedings." 


1246  REMINGTON    ON   BANKRUPTCY.  §  2010 

estate,  are  taxable  at  not  to  exceed  ten  cents  per  folio  for  taking  and  trans- 
scribingJ  Where  the  stenographer  is  not  required  to  transcribe  his  notes, 
doubtless  he  may  be  allowed  per  diem  compensation  for  taking  down  the 
testimony. 

§  2008.  Costs  in  Contesting  Claims  before  Election  of  Trustee 
Not  Taxable  against  Estate. — Costs  in  contesting  claims  before  the 
election  of  a  trustee,  incurred  in  the  effort  to  control  the  election,  are  not 
chargeable  to  the  estate.* 

§  2009.  No  Costs  in  Personam  against  Parties  in  Summary  Pro- 
ceedings, Not  Personally  Appearing. — While  it  is  true  that  in  plenary 
actions  in  the  bankruptcy  court  under  favor  of  the  amendment  of  1903, 
or  where  a  party  has  voluntarily  entered  appearance,  costs  may  be  taxed 
by  judgment  in  personam  against  the  party ;  yet,  where  such  is  not  the  case 
and  the  only  jurisdiction  of  the  court  arises  from  its  possession  of  the  res 
and  notice  upon  parties  claiming  interests  therein — such  parties  not  ap- 
pearing in  response  thereto — costs  may  not  be  taxed,  personally,  against 
such  parties. 9  Although,  of  course,  the  proportionate  compensation  for 
care,  preservation  and  administration  may  be  taken  out  of  the  fund. 

§  2010.  No  Part  of  General  Costs  of  Administration  to  Be  Taken 
Out  of  Property  Not  Forming  Part  of  Assets  for  Administration. 

— No  part  of  the  general  costs  of  administration  are  to  be  taken  out  of 
property  not  forming  part  of  the  assets  for  administration,  as,  for  in- 
stance, in  general,  none  out  of  exempt  property  properly  scheduled  and 
claimed  ;^^  although  such  costs  may,  if  otherwise  proper,  be  taxed  against 
the  bankrupt  himself  in  personam,  although  all  his  property  be  exempt. ^^ 
Nor,  in  general,  may  they  be  taken  out  of  property,  no  title  to  which  nor 
right  of  possession  of  which  is  in  the  trustee,  although  cases  may  arise  in 
which  it  would  be  equitable  to  tax  the  expenses  of  preservation  and  a  pro- 
portionate part  of  the  compensation  of  the  officers  of  the  court  against  the 
successful  claimant.  12 


7.  Bankr.  Act,  §  38  (a)  (5);  In  re  Todd,  6  A.  B.  R.  88,  109  Fed.  265  (D.  C. 
N.  Y.). 

8.  In  re  Worth,  12  A.  B.  R.  566,  130  Fed.  927  (D.  C.  Iowa);  In  re  Fletcher,  10 
A.  B.  R.  398  (D.  C.  N.  Y.).  Inferentially,  In  re  Mercantile  Co.,  2  A.  B.  R.  419, 
95  Fed.  123  (D.  C.  Mo.). 

9.  Havens  &  Geddes  Co.  v.  Pierek,  9  A.  B.  R.  569,  120  Fed.  244  (C.  C.  A.  Ills.). 

10.  In  re  LeVay,  11  A.  B.  R.  114,  125  Fed.  990  (D.  C.  Pa.). 

11.  In  re  Herbold,  14  A.  B.  R.  116  (D.  C.  Wash.). 

12.  Compare,  In  re  Gaskill,  12  A.  B.  R.  251,  130  Fed.  235  (D.  C.  Wash.), 
where  the  court  permitted  the  deduction  of  a  proportionate  part  of  the  ex- 
penses of  the  bankruptcy  proceedings  upon  the  surrendering  of  a  trust  fund. 

Compare,  In  re  Cam'bridge,  14  A.  B.  R.  168,  136  Fed.  983  _(D.  C.  Mass.),  where 
the  court  construed  the  word  "disbursements"  used  with  reference  to  the 
compensation  of  receivers  as  comprehending  tlie  value  of  property  returned  in 
specie  to  claimants. 


§    2011  COSTS  AND  EXPENSES  OF  ADMINISTRATION.  1247 

§  2011.  Policy  of  Act,  Strictest  Economy. — The  policy  of  the  act  is 
that  of  strictest  economy  in  expenses  and  cost  of  administration. ^^ 

The  greatest  foe  to  the  permanency  of  national  bankruptcy  laws  in  this 
•country  seems  in  the  past  to  have  been  the  opportunity  they  have  appar- 
ently afforded  for  extravagance  in  administration.  The  framers  of  the  pres- 
ent act  repeatedly  manifest  in  the  words  they  have  used,  the  utmost  sohcitude 
to  guard  against  extravagance.  The  chief  cause  of  the  downfall  of  the  act 
of  1867  was  its  extravagance.  Estates  were  sw^allowed  up  in  fees  ana 
expenses  until  finally  the  very  name  of  bankruptcy  law  became  a  synonym 
for  licensed  plundering  of  creditors'  estates  and  its  administration  became 
odious  in  the  eyes  of  the  people. 

In  re  Mercantile  Co.,  2  A.  B.  R.  420,  95  Fed.  123  (D.  C.  Mo.):  "The  history 
leading  up  to  the  adoption  of  the  present  Bankrupt  Law  shows  that  the  great 
abuses  under  the  preceding  National  Bankrupt  Act,  in  the  way  of  exorbitant 
fees,  which  largely  consumed  the  assets  of  the  bankrupt,  whereby  the  minis- 
terial ofHcers  grew  rich  upon  the  administration  of  the  act,  while  the  cred- 
itors starved,  impelled  Congress,  in  the  adoption  of  the  present  Bankrupt  Act, 
to  reverse  this  practice,  so  that  the  Bankrupt  Law  should  be  so  administered 
that  the  creditors  should  be  the  favorites  of  the  courts,  rather  than  the  agents 
assisting  the  court  in  the  preservation  and  distribution  of  bankrupt  estates. 
The  obvious  policy  of  the  present  act,  manifest  throughout  all  its  provisions 
respecting  fees  and  commissions,  is  to  reduce  to  the  lowest  minimum  the  ex- 
penses of  administration.  This  is  especially  made  manifest  in  the  meagre  fees 
allowed  to  clerks,  referees,  and  trustees.  Indeed,  so  inadequate  is  the  compen- 
sation allowed  to  these  officers  that  it  is  a  matter  of  happy  surprise  to  the  courts 
that  they  have  been  able  to  secure  the  services  of  such  competent  persons  to 
fill  the  places  of  referees  and  trustees.  And,  because  of  the  meagre  compensa- 
tion allowed  by  the  act  to  these  officers,  courts  are  exposed  to  the  constant 
temptation  to  either  read  into  the  act  some  provision  not  found  in  its  letter,  or 
by  the  most  liberal  construction  of  doubtful  or  ambiguous  terms  to  augment 
fees  and  commissions.  This  is  a  tendency,  however,  in  my  judgment,  which  it 
is  the  bounden  duty  of  the  court  to  resist.  It  is  the  duty  of  the 
court,  from  which  it  cannot  honestly  escape,,  in  applying  this  stat- 
ute, to  give  it  such  construction  and  such  application  as  will  carry  out  and 
effectuate  the  legislative  will.  Any  other  action  by  the  court  is  but  an  attempt 
to  set  up  and  substitute  the  notions  and  inclinations  of  the  individual  judge  as 
to  which  would  be  a  reasonable  compensation  for  services  under  this  law  for 
that  of  the  Legislature,  whereas,  as  already  suggested,  the  court  can  have  no 
policy  in  conflict  with  that  of  the  legislative  scheme." 

In  re  Nat'l  Mercantile  Agency,  11  A.  B.  R.  451  (Ref.  N.  Y.) :  "The  domi- 
nant keynote  of  the  Bankruptcy  Law  as  enacted  by  Congress,  is  econom,ical 
administration,  so  that  the  creditors  may  realize  the  largest  possible  dividends 
from  estates  administered  in  bankruptcy.     *     *     * 

"Complaint  is  being  made  in  many  directions  that  the  expenses  of  prelim- 
inary administration  of  bankrupt  estates  are  becoming  unduly  large  and,  in 
many  cases,  entirely  disproportionate  to  the  size  of  the  estates  called  upon  to 
bear  such  heavy  burdens." 

13.  See  ante,  §  24,  and  post,  §  2048.  In  re  Carolina  Cooperage  Co.,  3  A.  B.  R. 
154,  96  Fed.  604   (D.  C.  N.  C). 


1248  REMINGTON  ON  BANKRUPTCY.  §   2011 

In  re  Daniels,  12  A.  B.  R.  450,  130  Fed.  597  (D.  C.  Iowa):  "Aluch  criticism 
was  made  of  prior  Bankruptcy  Acts  because  of  the  large  amount  of  fees  qnd  ex- 
penses incurred  in  the  administration  of  the  bankrupt  estates.  It  was  the  man- 
ifest purpose  of  Congress  that  such  criticism  could  not  rightly  be  made  of  the 
present  law,  and  it  fixed  the  compensation  of  referees  and  other  officers  very 
low.  They  may  be  inadequate  in  some  eases,  but  the  court  is  powerless  to  in- 
crease them.  By  the  amendment  of  February  5,  1903,  it  is  expressly  provided 
that  the  court  shall  not  allow,  under  any  form  or  guise  whatever,  any  other  or 
further  compensation  for  services  than  that  expressly  authorized  by  the  act." 

In  re  Woodard,  2  A.  B.  R.  339,  691,  95  Fed.  956  (D.  C.  N.  Car.):  "One  of  the 
purposes  of  the  Act  of  1898  in  establishing  a  uniform  system  of  bankruptcy  was 
to  avoid  what  was  the  principal  cause  of  the  repeal  of  the  Bankruptcy  Act  of 
1867 — excessive  fees  and  great  expenses." 

In  re  Oppenheimer,  17  A.  B.  R.  60  (D.  C.  Pa.):  "Economy  is  strictly,  enjoined 
by  the  well  known  policy  of  the  Bankruptcy  Act  in  the  administration  of  bank- 
rupt estates." 

In  re  Goldville  Mfg.  Co.,  10  A.  B.  R.  556,  123  Fed.  579  (D.  C.  S.  C.) :  "It  is- 
a  part  of  the  history  of  the  country  that  one  of  the  causes  which  led  to  the 
repeal  of  the  Bankruptcy  Act  of  1867  was  the  great  abuse,  under  the  former 
law,  whereby  the  estates  of  bankrupts  were  consumed  by  the  ministerial 
officers  of  the  court  in  enormous  costs  and  charges;  and  it  was  the 
clear  intent  of  the  present  Bankrupt  Law  that  they  should  be  ad- 
ministered for  the  benefit  of  the  creditors.  This  is  manifest  through 
all  the  provisions  respecting  fees  and  commissions.  The  compensation  allowed 
to  clerks,  referees,  and  trustee  is  so  meager  that  it  is  a  matter  of  some  sur- 
prise that  the  courts  have  been  able  to  secure  persons  of  any  competency  ta 
administer  the  law."  • 

An  example  of  the  tendency  towards  extravagance  of  administration  is 
afforded  in  the  practice  that  has  grown  up  in  a  few  districts  of  appointing 
special  masters  at  an  increased  expense  to  estates  to  perform  various  parts 
of  the  duties  that  the  referee  is  presumed  to  perform  as  part  of  the  duties 
for  which  he  receives  his  fixed  compensation.  Thus,  for  passing  upon 
trustee's  reports  and  for  "advising"  the  trustee,  etc.,  etc.  ;^"^  for  auditing 
receivers'  accounts  and  determining  "reasonable"  compensation  ;^^  for 
hearing  a  petition  for  an  order  upon  the  bankrupt  to  surrender  assets  in 
his  possession  ;i^  for  considering  liens,  which,  if  the  bankruptcy  court  had 
any  right  to  consider  at  all,  would  have  been  as  part  of  the  referee's 
duties.  1'' 

The  referee  must  not  receive  extra  allowance,  even  with  the  consent  of 
counsel. ^'"^  He  may  not  have  extra  allowance  for  "investigating  specific 
liens,"  questions  relating  to    which  come    up  in    the    usual    and    ordinary 

14.  In  re  Hart  &  Co.,  IS  A.  B.  R.  137  (D.  C.  Hawaii),  in  which  "extra"  com- 
pensation was  allowed  for  "advising"  the  trustee  in  running  the  business  of  a 
going  concern.  In  re  Hoyt  &  Mitchell,  11  A.  B.  R.  784,  127  Fed.  968  (D.  C. 
N.  C).  Compare,  upon  germane  subject  of  attorney's  fees,  In  re  Lange,  11 
A.  B.  R.  794  (D.  C.  Tex.). 

15.  Apparent  instance.  In  re  Martin-Borgeson  Co.,  18  A.  B.  R.  197,  151  Fed. 
780  (D.  C.  N.  Y.). 

16.  In  re  Herskovitz,  18  A.  B.  R.  247  (D.  C.  N.  Y.). 

17.  In  re  Hobbs,  16  A.  B.  R.  544,  560  (D.  C.  W.  Va.). 

18.  Dressel  v.  North  State  Lumber  Co.,  9  A.  B.  R.  541,  119  Fed.  531  (D.  C. 
N.  C). 


§    2012  COSTS  AND  EXPENSES  OE  ADMINISTRATION.  1249 

course  of  the  administration  of  the  estate. ^^  No  per  diem  may  be  allowed 
to  referees  for  sitting  in  the  examination  of  the  bankrupt,  nor  for  pre- 
siding at  the  first  meeting  of  creditors.-*^ 

But  the  referee  may  be  allowed  "additional  compensation  while  acting  as 
special  master  in  matters  expressly  restricted  to,  the  judge. -^ 

But  even  before  the  amendment  of  1903,  trustees  were  sometimes  al- 
lowed what  was  termed  "extra  compensation"  where  by  consent,  prop- 
erty covered  with  liens  was  sold  free  and  clear.22 

Likewise,  similar  extra 'compensation  was  allowed,  in  some  instances, 
to  the  referee  where  an  application  was  made  outside  the  ordinary  scope 
of  the  referee's  duties. ^3 

§  2012.  Preliminary  Deposits  for  S,eferee,  Clerk  and  Trustee. — 

Consideration  of  the  original  $15.00  for  the  referee's  fee,  $10.00  for  the 
clerk's  fee  and  $5.00  for  the  trustee's  fee,  required  to  be  deposited  by  lit- 
igants at  the  time  of  instituting  the  bankruptcy  proceedings  has  been  pre- 
viously had.^'i 

These  preliminary  deposits  do  not  come  up  for  "allowance"  at  all.  They 
are  fixed  by  statute  and  must  be  paid  at  the  beginning — unless  a  poverty 
affidavit  is  filed,  and  even  in  that  event  the  prospective  bankrupt,  as  pre- 
viously noted,  usually  is  obliged  to  pass  a  rigid  examination  as  to  his 
absolute  inability  to  make  the  deposit  before  being  permitted  to  file  his 
bankruptcy  petition  without  the  deposit. 

We  are  not  concerned  at  this  time  with  these  preliminary  deposits  of 
filing  fees  for  the  referee,  clerk  and  trustee,  nor  with  the  expenses  and 
commissions  of  the  referee  and  trustee  incurred  in  the  marshaling  of  liens 
and  selling  of  property  free  from  liens,  which,  as  previously  noted,  are  to 
be  taxed  in  each  instance  against  the  particular  fund  itself  that  has  been 
derived  from  the  sale  of  the  special  property  involved.  The  making  of  the 
preliminary  deposit,  and  the  paying  of  the  expenses  of  the  selling  of  the 
property  free  from  liens,  are  supposed  already  to  have  taken  place  and  in 
the  orderly  development  of  the  subject  we  are  concerned  now  only  with 
the  distribution  of  the  general  estate  remaining  in  the  hands  of  the  trustee 
and  the  costs  and  expenses  chargeable  against,  it. 

The  statute,  in  §  64,  seeks  to  lay  down  the  order  of  priority  in  the  dis- 
tribution of  bankrupt  estates ;  but  its  provisions  are.  not  altogeher  well 
defined  nor  free  from  ambiguity. 

19.  In  re  Mammoth  Pine  Lumber  Co.,  8  A.  B.  R.  651,  IIG  Fed.  731  (D. 
C.  Ark.). 

20.  In  re  Parker,  7  A.  B.  R.  132,  ni  Fed.  501  (D.  C.  Iowa). 

21.  Fellows  V.  Freudenthal,  4  A.  B.  R.  490,  102  Fed.  731  (C.  C.  A.  Ills.);  con- 
tra, In  re  Troth,  4  A.  B.  R.  780,  ]04  Fed.  291  (D.  C.  Ohio). 

22.  In  re  Mammoth  Pine  Lumber  Co.,  8  A.  B.  R.  651,  116  Fed.  731  (D.  C. 
Ark.).  This  would  not  have  been  "extra"  compensation  under  the  ruling  in 
In  re  Mulhauser,  9  A.  B.  R.  80  (D.  C.  Ohio). 

23.  In  re  Todd,  6  A.  B.  R.  88,  109  Fed.  265  (D.  C.  N.  Y.). 

24.  See  "Deposit  for"  Costs  in  Voluntary  and  Involuntary  Cases,"  ante,  §  285. 

2  Rem  B— 4 


1250  remington  on  bankruptcy.  §  2014 

Division  1. 
Cost  of  Preservation  of  Estate  Subsequent  to  Fieing  of  Petition. 

§  2013.  First  "Priority" — "Actual  and  Necessary  Cost  of  Pre- 
serving Estate  Subsequent  to  Filing  Petition." — The  first  class  in  the 
statutory  order  of  priority  is  the  actual  and  necessary  cost  of  preserving 
the  estate  after  the  petition  is  filed. -^ 

§  2014.  What  Included  in  Term. — Nowhere  is  it  clearly  expressed 
v*hat  is  included  within  this  class.  Probably  it  does  not  refer  to  tTie 
expenses  of  the  receiver  or  trustee  in  administering  the  estate,  for  such 
expense  would  more  properly  be  denominated  costs  of  administration  and 
so  come  under  class  three. -^ 

jMore  likely  it  refers  rather  to  cases  where  some  person,  as  a  clerk  of  the 
bankrupt  or  a  creditor,  has  been  taking  care  of  the  property  before  any 
trustee  or  receiver  has  been  appointed  and  when  the  estate  was  totally 
helpless  and  unprotected;  or  to  cases  where  the  bankrupt  himself  has  been 
taking  care  of  the  property  meanwhile  ;-*^  or  to  cases  where  some  officer  of 
a  state  court,  as  a  receiver,  assignee  or  trustee,  has  been  permitted  to  retain 
custody  of  the  property  after  the  filing  of  the  petition ;-'  or  where  a  re- 
ceiver, before  adjudication  in  involuntary  bankruptcy,  has  incurred  or  paid 
extraordinary  obligations  in  preserving  the  values  of  the  property  in  his 
i:harge,  not  to  be  termed  strictly,  expenses.  Thus,  where  the  receiver  has 
paid  for  the  renewal  of  a  hotel  license  about  to  expire,  which  was  the  most 

24.  Bankr.  Act,  §  64,  a  (l).  Obiter,  Sellers  v.  Bell,  2  A.  B.  R.  543,  94  Fed. 
801   (C.  C.  A.  Ala.). 

25.  But  see  In  re  Gerson,  1  A.  B.  R.  251  (Ref.  Penna.) :  This  case,  however, 
on  the  other  proposition  involved  is  contra,  in  principle,  to  In  re  Rouse,  Hazard 
&  Co.,  1  A.  B.  R.  231,  91  Fed.  96  (C.  C.  A.  Ills.),  and  to  In  re  Slomka,  9  A.  B. 
R.  635,  122  Fed.  630  (C.  C.  A.  N.  Y.).  although  in  conformity  with  In  re  Laird, 
6  A.  B.  R.  1,  109  Fed.  550  (C.  C.  A.  Ohio). 

26.  In  re  Barrow.  3  A.  B.  R.  414,  98  Fed.  582  (D.  C.  Va.)  :  "It  appearing  that 
the  bankrupt  did  not  omit  these  crops  from  his  schedule  with  a  fraudulent  in- 
tent, he  will  be  allowed  by  the  trustee  a  reasonable  compensation  for  the  work 
and  care  bestowed  on  them  from  the  date  of  his  adjudication." 

In  re  Hutchinson  Co.,  14  A.  B.  R.  518  (Ref.  Mich.). 

Obiter,  Sellers  7'.  Bell,  2  A.  B.  R.  543,  94  Fed.  801  (C.  C.  A.  Ala.):  "It  is  to 
be  observed  that  in  ordinary  cases,  whether  in  involuntary  or  in  voluntary 
bankruptcy,  the  actual  and  necessary  cost  of  preserving  the  estate  subsequent 
to  the  filing  of  the  petition  and  up  to  the  qualification  of  the  trustee  will  usually, 
and  always  should  where  he  is  exercising  good  faith,  devolve  upon  the  bank- 
rupt himself,  not  at  his  charge  and  expense,  but  as  a  charge  of  the  first  rank 
against  the  estate  which  he  is  required  or  has  volunteered  to  surrender." 

Instance  where  expenses  and  compensation  of  clerk  refused  as  being  unneces- 
sary, In  re  Nat'l  IVIercantile  Agency,  11  A.  B.  R.  451  (Ref.  N.  Y.).  In  this  case 
it  was  held,  that  the  officers  and  employees  of  a  bankrupt  company  against 
which  a  petition  in  bankruptcy  is  filed  have  no  right  to  halt  the  proceedings  in 
a  vain  attempt  to  save  the  company  and  then  impose  the  expenses  of  such  an 
attempt  upon  the  estate  as  a  necessary  cost  of  preserving  it  subsequent  to  the 
filing  of  the  petition. 

27.  In  re  Harson  Co.,  11  A.  B.  R.  514  (D.  C.  R.  I.);  In  re  Pettee,  16  A.  B.  R. 
450,  143  Fed.  994  (D.  C.  Conn.). 


^    2014  COSTS  AND  EXPENSES  OF  ADMINISTRATION.  1251 

valuable  asset  of  the  estate  and  which  the  bankrupt  himself  was  unable  to 
pay. 2^  Perhaps  it  refers  to  cases  where  a  receiver  or  trustee  has  refused 
to  take  certain  steps  deemed  necessary  for  the  best  interests  of  the  estate 
r.nd  some  creditor  has,  on  that  refusal,  himself  gone  ahead  and  taken  the 
needful  steps. ^^ 

Compare,  In  re  Goldville  Mfg.  Co.,  10  A.  B.  R.  557,  123  Fed.  579  (D.  C  S. 
C):  "Certain  creditors,  of  their  own  volition,  have  chosen  to  contest  the 
mortgage,  and  their  attorney,  like  any  other  who  takes  a  desperate  case  with 
the  expectation  of  a  fee  contingent  upon  the  result,  to  be  large  if  successful, 
must  abide  the  result;  or  the  service  may  be  likened  to  that  in  salvage  cases 
in  the  admiraltjs  where  salvors  receive  no  remuneration  if  nothing  is  salved, 
however  arduous  their  efforts  and  however  great  may  be  their  expenditures 
of  money  and  time.  The  common  reward  of  those  who  fight  for  lost  causes 
is  the  consciousness  of  duty  done.  The  Supreme  Court  of  the  United  States 
in  Hobbs  t-.  McLean,  117  U.  S.  582,  29  L.  Ed.  940,  has  stated  the  principle  which 
governs:  'When  many  persons  have  a  common  interest  in  a  trust  property  or 
fund,  and  one  of  them  for  the  benefit  of  all,  and  at  his  own  cost  and  expense, 
brings  a  suit  for  its  preservation  or  administration,  the 'court  of  equity  in  which 
the  suit  is  brought  will  order  that  the  plaintiff  be  reimbursed  his  outlay  from 
the  property  of  the  trust,  or  by  proportional  contribution  from  those  who  ac- 
cept the  benefits  of  his  efforts.  *  *  *  But  where  one  brings  adversary  pro- 
ceedings to  take  possession  of  trust  property  from  those  entitled  to  it,  in  order 
that  he  may  distribute  it  to  those  who  claim  adversely,  and  fails  in  his  purpose, 

28.  Knittel  v.  McGowan,  14  A.  B.  R.  209  (D.  C.  Pa.). 

29.  Compare,  In  re  Little  River  Lumber  Co.,  3  A.  B.  R.  682,  101  Fed.  558  (D. 
C.  Ark.):  "The  trustee  in  this  case  at  the  time  this  claim  should  have  been 
resisted  had  removed  from  the  state.  Under  the  advise  of  his  counsel,  to  the 
effect  that  he  had  no  right  to  employ  an  attorney  for  the  purpose  of  resisting 
fraudulent  claims,  he  declined  to  employ  counsel.  Being  away  from  the  state, 
and  his  counsel  declining  to  act  without  remuneration,  the  counsel  in  this  case, 
using  the  name  of  one  of  their  clients,  A.  DeMarce,  resisted  the  claim  of 
O'Dwyer  &  Ahern  and  successfully  defeated  it,  thus  increasing  the  assets  of 
the  estate  for  the  benefit  of  all  the  creditors  to  the  extent  of  about  $1,000.  The 
court  is  somewhat  familiar  with  the  services  rendered  in  this  case,  and  thinks 
the  allowance  made  by  the  referee  is  not  exorbitant.  This  allowance  is  made 
and  goes  as  a  part  of  the  expenses  of  the  administration  of  the  estate,  and  is 
allowed  under  the  general  equity  powers  of  the  Bankrupt  Court.  It  seems  to 
me  that,  on  well-recognized  equitable  principles  an  attorney  who,  under  the 
circumstances  of  this  case,  intervened  and  successfully  resisted  an  unjust  claim, 
ought  to  be  paid  by  the  estate  which  was  benefited  by  his  services.  The  in- 
justice of  requiring  the  intervening  creditor  to  pay  the  attorney  is  manifest. 
His  distributive  share  of  the  funds  preserved  to  the  estate  would  not  pay  one- 
third  of  the  attorney's  fee  if  he  were  required  to  pay  for  the  services. 

"It  is  inequitable  and  uniust  to  permit  the  other  creditors  to  avail  themselves 
of  his  services,  accompanied  by  the  necessary  risk,  mvolving  costs,  etc.,  and 
then  share  in  the  estate  without  contributing  to  the  payment  of  the  attorney 
who  did  the  work." 

Obiter,  In  re  Burke,  6  A.  B.  R.  502  (Ref.  Ohio).  Also,  see  In  re  Groves,  ? 
N.  B.  N.  &  R.  466  (Ref.  Ohio),  where  the  trustee  refused  to  make  application 
to  have  a  sale  set  aside  for  stifling  of  competition,  and  certain  creditors  then 
made  the  application  themselves,  the  result  of  which  was  that  the  sale  which 
was  for  $9,000  was  set  aside  and  on  resale  the  property  brought  $22,000!!!  In 
that  case  the  creditors  who  brought  the  additional  fund  into  court  were  held  en- 
titled to  reimbursement  for  their  expenses  in  so  doing,  as  the  actual  and  neces- 
sary cost  of  preserving  the  estate  subsequent  to  the  filing  of  the  petition. 

Compare,  In  re  Evans.  8  A.  B.  R.  730,  116  Fed.  909  (D.  C.  N.  Car.). 


1252  REIIIXCTOX  ON  BANKRUPTCY.  §  2015 

it  has  never  been  held  in  any  case  brought  to  our  notice  that  such  person  had 
any  right  to  deiniand  reimbursement  of  his  expenses  out  of  the  trust  fund,  or 
contribution  from  those  whose  property  he  sought  to  misappropriate.'  " 

It  may  include  the  compensation  and  expenses  (including  attorney's 
fees)  of  a  mortgagee  of  a  chattel  mortgage,  executed  t\vo  days  before  the 
filing  of  the  bankruptcy  petition  and  made  for  the  benefit  of  all  creditors 
who  would  assent  thereto  within  a  stated  period,  where  the  mortgagee 
remains  in  possession.^^ 

The  bankruptcy  court  is  itself  to  determine  what  the  reasonable  and 
necessary  expense  of  the  preservation  will  amount  to;-^^  and  it  is  not  to 
be  controlled  by  what  has  been  actually  expended,  but  may  re-examine  the 
actual  expenditure  and  allow  less. 

The  bankruptcy  court  should  not,  where  a  sheriff  has  remained  in  pos- 
session, after  adjudication,  under  an  attachment  the  lien  of  which  has 
been  dissolved  by  the  adjudication,  allow  more  for  the  necessary  expense 
of  the  preservation  than  would  have  been  the  expense  had  the  property 
been  turned  back  to  the  bankrupt.^-  But  a  different  rule  would  probably 
prevail  in  cases  where  he  had  remained  in  possession  after  the  filing  of 
an  involuntary  petition  and  before  adjudication,  for  in  such  a  case  it 
might  be  improper  to  turn  the  property  back.^^ 

Even  expenses  of  a  receiver  in  the  state  court,  preserving  the  property 
before  bankruptcy,  may  be  assessed  against  secured  creditors,  where  the 
secured  creditors'  fund  was  benefited. ^^ 

Division  2. 

Reimbursing   Petitioning   Creditors    for    Their   Filing    Fees   and 

Expense  of  Recovering  Property  Concealed  or  Fraudulently 

Transferred  by  Bankrupt. 

• 

§  2015.  Second  "Priority" — Reimbursement  of  Petitioning  Cred- 
itors, and  of  Creditors  Recovering  Concealed  Assets. — The  second 
class  in  the  statutory  order  of  priority  is  the  reimbursement  of  the  petition- 
ing creditors  of  their  deposit  of  filing  fees  :^^  and  the  reimbursement  of 
creditors  of  their  reasonable  expenses  in  recovering,  for  the  benefit  of  all 
creditors,  property  concealed  or  transferred  by  the  bankrupt.-'"^ 

30.  In  re  Hutchinson  Co.,  14  A.  B.  R.  518  (Ref.  Mich.). 

31.  In  re  Allen,  3  A.  B.  R.  38,  96  Fed.  512   (D.   C.   Calif.). 

32.  In  re  Allen,  3  A.  B.  R.  38,  96  Fed.  512  (D.  C.  Calif.). 

33.  Compare,  In  re  Hutchinson  Co.,  14  A.  B.  R.  518  (Ref.  Mich.). 

34.  In  re  Allison  Lumber  Co.,  14  A.  B.  R.  78,  137  Fed.  643  (D.  C.  Ga.). 

35.  Bankr.  Act,  §  64  (b)   (2). 

Gen.  Ord.  XXXIV:  "In  cases  of  involuntary  bankruptcy,  when  the  debtor 
resists  an  adjudication,  and  the  court,  after  hearing,  adjudges  the  debtor  a 
bankrupt,  the  petitioning  creditor  shall  recover,  and  be  paid  out  of  the  estate, 
the  same  costs  that  are  allowed  to  a  party  recovering  in  a  suit  in  equity;  and 
if  the  petition  is  dismissed,  the  debtor  shall  recover  like  costs  against  the 
petitioner." 

36.  Bankr.  Act,  §  64  (b)   (2). 


§  2017  COSTS  AND  expe;nses  of  administration.  1253 

Obiter,  Sellers  v.  Bell,  2  A.  B.  R.  543,  94  Fed.  801  (C.  C.  A.  Ala.):  "The 
charge  of  the  second  rank  is  the  filing  fees  paid  by  creditors  in  involuntary- 
cases.  The  reason  for  restricting  this  to  fees  paid  by  creditors  in  involun- 
tary cases  is  obvious,  because  where  such  fees  are  paid  in  voluntary  cases 
they  may  be  paid  by  the  bankrupt  himself  out  of  the  estate  which  he  has  to 
surrender,  and  therefore  no  account  need  be  taken  of  them." 

§  2016.  Reimbursement  of  Creditors  Recovering  Concealed  As- 
sets, etc. — Where  property  of  the  bankrupt,  transferred  or  concealed  by 
tlie  bankrupt  either  before  or  after  the  filing  of  the  petition,  has  been 
recovered  for  the  benefit  of  the  estate  of  the  bankrupt,  by  the  efforts  and 
at  the  expense  of,  one  or  more  creditors,  such  creditors  are  entitled  to 
reimibursement  of  the  reasonable  expenses  of  such  recovery.-^''' 

In  re  Felson,  1.5  A.  B.  R.  188,  139  Fed.'  275  (D.  C.  N.  Y.)  :  "But  if  the  trus- 
tee should  not  prosecute  such  an  inquiry  and  employ  necessary  counsel,  one 
or  more  creditors,  may;  and  if  property  transferred  or  concealed  by  the  bank- 
rupt is,  under  such  circumstances,  'recovered  for  the  benefit  of  the  estate  of 
the  bankrupt  by  the  efforts  and  at  the  expense  of  one  or  more  creditors',  'the 
reasonable  expenses  of  such  recovery'  are  to  be  allowed  and  paid,  and  such 
reasonable  expenses  are  to  be  regarded  as  a  debt  having  priority." 

§  2017.  Trustee  to  Be  Given  First  Opportunity. — Probably  this 
amendment  would  not  permit  the  reimbursement  of  creditors  of  their 
expenses  incurred  after  the  adjudication  and  the  a;ppointment  of  a  trustee, 
in  thus  recovering  property  transferred  or  concealed  by  the  bankrupt,  unless 
they  had  first  applied  to  the  trustee  to  take  the  steps  required  and  had  been 
met  by  a  refusal.  Certainly,  if  there  be  a  trustee  in  charge  of  the  estate,  he 
should  be  given  the  first  opportunity  to  take  the  necessary  steps,  especially 
so  when  we  bear  in  mind  that,  after  the  election  of  a  trustee,  all  action 
in  behalf  of  creditors  must  be  taken  in  his  name.-^^ 

Impliedly,  In  re  Felson,  15  A.  B.  R.  189,  139  Fed.  275  (D.  C.  N.  Y.) :  "It 
will  not  do,  even  under  the  provisions  of  subdivision  'b'  of  §  64,  as  amended, 
to  permit  creditors  generally  to  come  with  their  attorneys  to  the  aid  of  the 
trustee  seeking  to  recover  property  belonging  to  the  estate  in  bankruptcy  of 
the  bankrupt,  and  concealed  by  him  in  violation  of  §  29  of  the  Act  *  *  * 
and  have  an  allowance  for  their  expenses  or  attorney's  charges  out  of  the 
estate.  The  amendment  gives  no  such  license  as  this,  and  clearly  such  a  course 
was  not  permissible  prior  to  the  amendment.     *    *     * 

"As  already  stated,  allowances  to  general  creditors,  one  or  more,  who  employ 
and  pay  counsel  and  incur  and  pay  other  expenses  in  doing  things  to  benefit 
and  increase  the  estate,  and  which  have  that  eflfect,  cannot  be  made  unless  the 
trustee  has  not  been  appointed  at  the  time  it  is  done,  or,  having  been  appointed, 
he  has  neglected  or  refused  to  act  in  the  matter.  Even  in  such  case,  unless 
there  be  an  emergency  demanding  immediate  action,  the  order  and  direction 
of  the  court  should  be  first  sought." 

37.  In  re  Goldberg,  16  A.  B.  R.  523,  144  Fed.  566  (D.  C.  Me.). 

38.  Injunction  until  bankruptcy  petition  can  be  filed,  before  amendment  of 
1903:     Victor  v.  Lewis,  1  A.  B.  R.  667  (N.  Y.  Sup.  Ct.  App.). 


1254  .REMINGTON  ON  BANKEUPTCY.  §  2018 

,  §  2018.  Disallowance  of  Unjust  Claims  before  Election  of  Trus- 
tee.— This  amendment  probably  would  not  fairly  apply  to  a  resistance 
of  the  allowance  of  an  unjust  claim  to  share  in  dividends  or  to  vote,  even 
where  the  trustee  has  refused  to  act,  unless  in  some  way  such  claim  be 
connected  with  a  "recovery"  of  property  "transferred"  or  "concealed"  by 
the  bankrupt.-^^  It  is  somewhat  sophistical  to  say  that  the  defeating  of  an 
unjust  claim  is  a  "recovery"  of  property  because  of  its  effect  in  increasing 
the  dividends  of  other  creditors — much  less  that  it  is  a  recovery  of  property 
"transferred"  or  "concealed"  by  the  bankrupt. 

Nevertheless,  a  creditor  opposing  the  allowance  of  an  unjust  claim  m/ight 
be  allowed  to  use  the  trustee's  name  if  the  trustee  refuses  to  act,  and  thus, 
if  successful,  might  have  his  attorneys'  fees  charged  against  the  estate 
as  part  of  the  trustee's  expenses.^'^ 

Nor  would  the  amendment  cover  cases  of  successful  opposition  by  a 
creditor  to  the  allowance  of  another  creditor's  claim  before  the  election  of 
a  trustee. 

In  re  Worth,  12  A.  B.  R.  572,  130  Fed.  927  (D.  C.  Iowa):  "In  the  matter  of 
costs,  the  contest  was  wholly  between  creditors  of  the  estate,  and,  while  it  is 
claimed  in  behalf  of  the  objecting  creditors  that  they  were  waging  it  in  the 
interest  of  the  estate,  it  clearly  appears  that  it  was  in  fact  waged  for  the  pur- 
pose of  controlling  the  election  of  the  trustee.  No  reason  appears  why  the 
estate  should  bear  the  cost  of  such  a  contest." 

Even  before  the  amendment  of  1903,  in  certain  instances  creditors  were 
allowed  their  expenses  in  recovering  assets  for  the  benefit  of  the  estate 
where  there  was  no  receiver,  marshal  nor  trustee  yet  in  charge,  or  wdiere 
such  officers  had  refused  to  act,  the  allowance  being  based  upon  the  prin- 
ciple that  such  expenses  were  an  equitable  lien  on  the  fund.'*^  And  also 
they  have  been  allowed  reimbursement  of  the  expense  of  resisting  the  al- 
lowance of  fraudulent  claims.'*^ 

But  such  allowances  would  not  be  proper  where  there  w^as  a  trustee  or 
receiver  in  charge  and  there  was  no  refusal  to  act. 

Impliedly,  In  re  Felson,  15  A.  B.  R.  189,  139  Fed.  275  (D.  C.  N.  Y.) :  "In 
the  case  now  under  consideration,  there  is  no  evidence  that  the  trustee  failed 
in  his  duty,  or  failed  to  press  the  matter  of  intentional  and  fraudulent  conceal- 
ment against  Felson  with  promptness  and  vigor." 

Even  before  the  amendment  of  1903,  and  in  cases  where  creditors  had 
been  simply  acting  for  themselves,  they  have  been  held  entitled  to  have  their 
expenses  declared  a  lien  upon  the  fund  thus  seized  by  them.'*^ 

39.  To  same  effect,  In  re  Felson,  15  A.  B.  R.  185,  139  Fed.  275  (D.  C.  N.  Y.); 
compare,  In  re  Groves,  2  N.  B.  N.  &  R.  466  (Ref.  Ohio). 

40.  Compare,  In  re  Little  River  Lumber  Co.,  3  A.  B.  R.  682,  101  Fed.  558 
(D.  C.  Ark.). 

41.  In  re  Groves.  2  N.  B.  N.  &  R.  466  (Ref.  Ohio). 

42.  In  re  Little  River  Lumber  Co.,  3  A.  B.  R.  682.  101  Fed.  558  (D.  C.  Ark.). 

43.  Compare,  evident  practice,  In  re  Ogles.  2  A.  B.  R.  514  (Ref.  Tenn.).  But 
compare,  contra,  inferentially,  In  re  Smith,  5  A.  B.  R.  559,  108  Fed.  39  (D.  C. 
N.  Car.).  Also,  compare,  contra.  In  re  Silverman,  3  A.  B.  R.  227,  97  Fed.  325 
(D.  C.  N.  Y.). 


§   2018  COSTS  AND  EXPENSES  OF  ADMINISTRATION.  1255 

In  re  Lesser  Bros.,  3  A.  B.  R.  320,  180  Fed.  201  (C.  C.  A.  N.  Y.) :  "In  this 
case,  the  appellants  have,  by  a  litigation  which  lasted  about  three  and  one- 
fourth  years  and  went  through  two  appellate  courts,  obtained,  without  aid  from 
any  other  creditor,  a  fund  of  $27,000  for  the  benefit  of  all  the  creditors  from 
fraudulent  insolvents,  who,  at  the  last  moment  went  into  bankruptcy,  ap- 
parently to  prevent  the  appellants  from  obtaining  a  substantial  benefit  from 
the  protracted  and  expensive  litigation.  The  outcome,  so  far  as  the  appellants  are 
concerned,  seems  inequitable.  We  think  that  the  order  should  be  so  modified  as 
to  permit  them  to  become  parties  in  the  proceedings  by  the  trustee  in  bank- 
ruptcy in  the  State  court,  and  present  to  that  court  such  consideration  and 
facts  as  may  bear  upon  an  application  for  an  allowance  to  them  from  the  fund, 
in  the  nature  of  a  reasonable  compensation  for  their  costs,  expenses  and  dis- 
bursements in  the  litigation  which  resulted  in  the  defeat  of  the  fraudulent  at- 
tempts of  the  bankrupts,  in  wrestling  the  fund  from  the  hands  of  receivers 
applied  for  in  fraud  of  creditors  and  in  its  preservation  for  their  actual  benefit." 
This  case  was  reversed  by  the  Supreme  Court  sub  nom.  Metcalf  v.  Barker, 
9  A.  B.  R.  36,  187  U.  S.  165,  but  upon  the  ground  that  the  lien  was  not  obtained 
within  the  four  months,  so  its  authority  upon  the  point  in  question  is  not 
afifected. 

Also,  undoubtedly,  where  under  ^67  (i)  a  lien  obtained  by  legal  pro- 
ceedings, dissolved  by  the  adjudication,  is  preserved  for  the  benefit  of  all 
creditors,  the  costs  of  court  would  also  be  entitled  to  payment  in  full  as 
part  of  the  lien  upon  the  fund';'*^  also,  perhaps,  under  §  64  (b)  (5),  where 
such  costs  have  been  granted  priority  under  state  law  in  cases  of  subse- 
quent equitable  sequestrations  of  property.^^ 

The  clause  added  by  the  amendment  of  1903  to  §64  (b)  (2)  undoubtedly 
suggests  a  proper  course  to  be  pursued  by  creditors  after  the  filing  of  an 
involuntary  petition  in  bankruptcy,  and  before  adjudication,  where  no  re- 
ceiver is  appointed,  and  necessity  exists  for  steps  to  be  taken  to  recover 
property  transferred  or  concealed  either  before  or  after  the  filing  of  the 
petition.  In  such  cases  no  provisional  seizure  of  the  property  could  be  had 
by  the  marshal  or  a  receiver,  under  §  69  and  §  3  (e),  for  such  seizure  is 
not  permissible  except  as  to  property  in  the  hands  of  the. bankrupt  or  his 
agent  and  is  forbidden  where  the  property  is  in  the  hands  of  an  adverse 
claimant  such  as  an  alleged  fraudulent  transferee;  it  being  further  ques- 
tionable whether  a  receiver  has  the  power  to  institute  suits  for  such  recovery 
prior  to  adjudication.  In  such  a  situation,  if  creditors  are  to  be  protected 
before  adjudication,  it  is  proper  for  them  to  institute  proceedings  in  the 
state  courts  to  set  aside  the  alleged  fraudulent  conveyance  and  to  recover 
the  property,  whereupon,  if  subsequently  the  debtor  be  adjudged  bankrupt, 
their  costs  and  expenses  would  be  entitled  to  priority,  for  it  would  be 
through  their  "efforts"  that  the  property  would  finally  have  been  recovered 
for  the  benefit  of  all. 

But  it  has  been  held  proper,  probably  under  this  section,  to  reimburse 

44.  Receivers  v.  Staake,  13  A.  B.  R.  281,  133  Fed.  717  (C.  C.  A.  Va.) ;  In  re 
Lesser  Bros.,  5  A.  B.  R.  320,  108  Fed.  201  (C.  C.  A.  N.  Y.). 

45.  Post,  §  2197. 


1256  RliMlNGTON  ON  BANKRUPTCY.  §  2020 

attaching  creditors  for  their  attorney's  fees  and  other  expenses  incurred  in 
levying  an  attachment  on  the  debtor's  property  within  four  months  of  bank- 
ruptcy for  their  own  benefit,  the  lien  of  the  attachment  being  void  as  to  the 
creditors  in  bankruptcy,  but  being  preserved  for  the  benefit  of  the  estate, 
since  thereby  an  unfiled  or  unrecorded  instrument  was  rendered  void.'*® 
But  there  would  seem  to  be  no  more  reason  for  reimbursing  such  levying 
creditors  than  for  reimbursing  any  other  creditors  who  had  sought  to  gain 
an  advantage  by  levying  but  had  failed. 

Division  3. 

"Costs  of  Administration  :"  ReferEei's,  Trustee's  and  Receiver's  Ex- 
penses AND  Compensation  ;  Attorneys'  Fees  ;  Appraisers'  and 
Witness'  Fees,  etc. 

§  2019.  Third  Priority,  "Costs  of  Administration." — The  classifica- 
tion of  priorities  given  in  §  64  of  the  act  is  somewhat  misleading,  since  that 
section  perhaps  would  imply  that  the  costs  of  the  preservation  of  the  es- 
tate subsequent  to  the  filing  of  the  petition  and  the  filing  fees  of  the  pe- 
titioning creditors  already  provided  for  in  classes  one  and  two  are  not  also 
part  of  the  "costs  of  administration.'"*" 

In  this  third  class  undoubtedly  come  the  receiver's  and  trustee's  expenses, 
including  attorneys'  fees ;  also,  of  course,  the  allowance  of  compensation  to 
appraisers ;  the  attorney's  fees  for  the  bankrupt  and  for  the  petitioning 
creditors ;  and  the  fees  and  mileage  of  witnesses  and  of  the  bankrupt.  Also 
in  this  class  undoubtedly  comes  the  referee's  reimbursement  of  his  expenses 
in  sending  and  publishing  notices  and  for  office  rent,  clerk  hire,  etc. 

In  fact  this  class  three  comprehends  almost  all  the  costs  and  expenses, 
and  there  is  nothing  prior  to  it  except  the  actual  and  necessary  cost  of 
preserving  the  estate,  and  the  filing  fees  of  petitioning  creditors,  and  also 
the  reimbursement  of  creditors  who  have  brought  funds  into  the  estate, 
v.hose  reimbursement  of  course  always  is  more  than  counterbalanced  by 
the  fund  recovered,  so  the  nominal  precedence  is  never  likely  to  occasion 
conflict,  the  rights  of  such  creditors  being  in  the  nature  of  a  lien  upon  the 
fund  brought  into  the  court,  rather  than  a  claim  for  priority  of  payment. 

§  2020.  Equity  Rules  to  Govern  Order  of  Precedence  in  Class 
Three. — As  to  the  priority  of  the  different  items  of  costs  and  expenses  of 
this  class  three  among  themselves,  no  rule  is  laid  down  by  the  statute  it- 
self, so  the  ordinary  equity  rules  are  to  be  appealed  to  for  guidance.-*^ 

46.  Receivers  v.  Staake,  13  A.  B.  R.  281,  133  Fed.  717  fC.  C.  A.  Va.,  affirmed 
sub  nom.  First  Xat'l  Bk.  z:  Staake,  15  A.  B.  R.  639,  202  U.  S.  141). 

47.  Ambiguity  of  Term  "Costs  of  Administration."— The  term:  "costs  of  ad- 
ministration" is  ambiguous.  Compare,  In  re  Kross,  3  A.  B.  R.  189,  96  Fed.  819 
(D.  C.  N.  Y.). 

48.  In  re  Burke,  6  A.  B.  R.  502  (Ref.  Ohio). 


§   2023  COSTS  AND  EXPENSES  OF  ADMIXISTRATIOX.  1257 

§  2021.  Indemnifying  Court  Officers  and  Advancing  Moneys  for 
Expenses. — The  referee,  clerk  and  mar:^hal  are  authorized  to  require  in- 
demnity for  expenses  from  the  person  in  whose  behalf  the  duty  is  to  be 
performed."*^ 

§  2022.  Reimbursement  of  Expenses  Advanced. — The  person  so  in- 
demnifying is  entitled  to  reimbursement  of  the  amounts  so  advanced,  as 
part  of  the  cost  of  administration.^"^ 

Even  as  to  discharge  expenses,  the  bankrupt  is  entitled  to  reimbursement 
for  amounts  advanced  by  him  to  pay  the  expenses  of  issuing,  mailing  and 
publishing  notices  to  creditors  of  his  application  for  discharge. ^^ 

§  2023.  No  Reimbursement  of  Original  Deposit  Except  to  Peti- 
tioning Creditors. — Such  right  to  reimbursement,  however,  does  not  apply 
to  the  thirty  dollars  preliminary  deposit  of  fees  for  the  referee,  clerk  and 
trustee,  except  to  those  deposited  by  petitioning  creditors ;  but  applies  only 
to  moneys  advanced  to  pay  expenses.  Such  preliminary  deposits,  where 
they  are  made  by  the  bankrupt  himself,  would  belong  to  the  estate  as  part 
of  the  bankrupt's  property. 

In  re  Matthews,  3  A.  B.  R.  265,  97  Fed.  772  (D.  C.  Iowa):  "The  provisions 
of  General  Order  No.  10  do  not  apply  to  the  deposit  of  $25,  which  the  clerk. 
Tinder  §  51  of  the  Bankrupt  Act,  [before  the  Amendment  of  1903  increased  it  to 
$30.]  is  required  to  collect  from  the  bankrupt  when  he  files  his  petition.  The 
monej'  thus  collected  by  the  clerk  is  intended  to  cover  the  statutory  fees  to 
"be  paid  to  the  clerk,  referee,  and  trustee  as  compensation  for  their  services; 
and  being  paid  to  the  clerk  when  the  petition  is  filed,  the  amount  of  the  estate 
passing  to  the  trustee  is  lessened  by  that  sum,  and,  if  this  amount  should  be 
how  returned  to  the  bankrupt,  he  would  be  receiving  part  of  his  estate  as  it 
"belonged  to  him  before  he  filed  his  petition,  which  estate  by  the  adjudication 
"became  in  fact  the  property  of  the  creditors.  The  provisions  of  General 
Order  No.  10  are  intended  to  cover  money  which  the  bankrupt  or  some  third 
party  may  be  called  upon  to  furnish  after  the  initiation  of  the  proceedings  in 
order  to  meet  expenses  incurred  by  the  officer  for  the  purposes  specially  re- 
cited in  the  order,  which  purposes  do  not  include  the  money  deposited  with 
the  clerk  to  m^et  the  fees  (not  expenses)  of  the  clerk,  referee  and  trustee. 
Money  thus  advanced,  if  the  bankrupt  has  met  the  requirements  of  the  law 
with  respect  to  turning  over  his  estate  to  his  creditors,  is  deemed  to  have 
been  obtained  from  sources  other  than  the  estate  belonging  to  the  creditors, 
and  therefore  provision  is  made  for  its  repayment  out  of  the  estate.  The  pur- 
pose of  the  order  is  to  protect  the  officers  from  personal  loss  in  the  performance 
of  their  duties  under  the  Bankrupt  Act,  but  it  is  not  the  intent  of  the  order  that 
the  bankrupt  shall  be  repaid  the  monej'-  which  presumably  he  took  out  of  his 
estate   to   pay   the   fees   of   officers   before   he   filed   his   petition   in   bankruptcy." 

49.  Gen.  Order  No.  X. 

50.  Gen.  Order  No.  X.  In  re  Hatcher,  16  A.  B.  R.  722,  145  Fed.  658  (D.  C. 
Tex.). 

51.  In  re  Hatcher,  16  A.  B.  R.  722,  145  Fed.  658  (D.  C.  Tex.). 


1258  REMINGTON  ON  BANKRUPTCY.  §  2027 

§  2024.  Nor  of  Attorney's  Fees  Paid  by  Bankrupt  in  Advance. — A 

bankrupt  is  not  entitled  to  reimlxn-sement  of  attorney's  fees  paid  by  him 
in  advance  of  filing  the  petition. 

In  re  Matthews,  3  A.  B.  R.  265,  97  Fed.  772  (D.  C.  Iowa)  :  "These  services 
have  been  paid  for,  however,  and  the  payment  was  made  out  of  the  estate  of 
the  bankrupt;  so  that,  in  effect,  the  creditors  have,  already  made  good  the 
amount.  If  the  bankrupt  had  not  paid  this  sum  to  his  attorney,  it  would  have 
formed  part  of  his  estate,  which  he  would  have  been  in  duty  bound  to  transfer 
to  his  trustee." 

§  2025.  No  Reimbursement  of  Bankrupt  for  Care  of  Exempt 
Property. — A  bankrupt  is  not  entitled  to  reimbursement  of  his  expenses 
•in  taking  care  of  exempt  property  pending  its  being  set  off  to  him.^^  Qn 
the  contrary  the  rent  and  storage  charges  for  the  care  of  exempt  property, 
pending  its  being  set  apart  to  the  bankrupt,  are  properly  chargeable  against 
the  bankrupt.^3 

§  2026.  Reimbursemet  to  Follow  Order  of  Priority  of  Expenses 
Themselves. — In  reimbursing  the  bankrupt  or  a  creditor, -under  rule  ten 
of  the  Supreme  Court's  General  Orders,  for  money  advanced  to  defray  the 
expenses  of  the  referee,  marshal  or  clerk,  such  reimbursement  has  the  same 
priority  that  the  expenses  themselves  would  have  had,  the  one  making  the 
advancement  being  subrogated  to  the  rights  of  the  officer  whose  expenses 
are  advanced.^^ 

§  2027.  Probable  Order  of  Priority. — Undoubtedly,  the  expenses  of 
die  referee,  receiver  and  trustee  would  in  eqviity  have  precedence  over  all 
other  costs  of  administration;  and  probably  the  order  of  priority  in  this 
class  three — Costs  of  Administration — would  be  somewhat  as  follows : 

1st.  Referee's  expenses  for  mailing  and  publishing  notices  and  for  office 
rent  and  clerk  hire,  and  for  traveling,  etc. 

2nd.  Receiver's  and  trustee's  expenses,  including  attorneys'  fees  and  rent, 
insurance,  watchman,  stenographers'  fees,-""-"^  and  other  expenses,  as  various 
as  the  different  cases  themselves  are  variant. 

3rd.  Bankrupt's  attorney's  fees  and  the  attorney's  fees  and  other  ex- 
penses of  the  petitioning  creditors. 

4th.  Appraiser's  fees. 

5th.  Witness'  fees  and  mileage. 

6th.  Commissions  and  compensation,  other  than  the  deposit  of  filing  fees 
already  considered,  for  the  referee,  receiver  and  trustee. 

52.  In  re  Groves,  6  A.  B.  R.  728  (Ref.  Ohio,  affirmed  D.  C). 

53.  In  re  Grimes,  2  A.  B.  R.  730,  96  Fed.  529  (D.  C.  N.  Car.). 

54.  In  re  Burke,  6  A.  B.  R.  .502  (Ref.  Ohio). 

55.  In  re  Todd,  6  A.  B.  R.  88,  109  Fed.  265  (D.  C.  N.  Y.).  Compare  (not  al- 
lowed for  the  benefit  of  g^eneral  creditors  at  the  sacrifice  of  priority  creditors), 
In  re  Rozinsky,  3  A.  B.  R.  830,  101  Fed.  229  (D.  C.  N.  Y.). 


§   2030  COSTS  AND  EXPENSES  OF  ADMINISTRATION.  1259 


Referee's  Expenses. 

§  2028.  Referee's  Expenses. — The  referee  is  entitled  to  reimburse- 
ment of  his  expenses,  and  may  require  indemnity  therefor.^'' 

He -is  entitled  to  require  indemnity  for  his  expenses,  by  the  Supreme 
Court's  General  Order  No.  X.  Were  he  not  entitled  to  indemnity,  it  would 
yet  doubtless  be  the  law,  from  the  necessities  of  the  case,  that  his  expenses 
would  come  first,  even  though  not  mentioned  first  in  the  statutory  order  of 
priority ;  for  his  expenses  are  the  expenses  of  the  maintenance  of  the  court 
itself,  and  the  expenses  of  the  government  in  thus  protecting  the  rights  of 
parties  in  a  particular  fund  or  property  is  to  be  considered  a  first  lien  upon 
the  fund  or  property,  ahead  of  all  liens  thereon  created  by  the  parties  them- 
selves, as  well  as  ahead  of  the  lien  of  the  government  thereon,  for  taxes 
for  general  purposes. 

§  2029.  "Expenses"  Not  Covered  by  Statutory  "Compensation" 
of  Referee  and  Trustee. — The  limitation  of  the  referee's  and  trustee's 
compensation,  so  carefully  guarded  in  §  72  of  the  act  in  the  following 
words : 

"Xeither  the  referee  nor  the  trustee  shall,  in  any  form  or  guise,  receive,  nor 
shall  the  court  allow  them,  any  other  or  further  compensation  for  their  serv- 
ices, than  that  expressly  authorized  and  prescribe  by  this  act." 

does  not  prevent  the  referee  nor  the  trustee  from  being  reimbursed  for 
expenses.-''" 

§  2030.  What  Are  Proper  Expenses  of  Referee. — The  referee's 
expenses  proper  for  reimbursement  as  part  of  the  costs  of  administration 

56.  Bankr.  Act,  §  62  (a).     Gen.  Order  XXXV;  Gen.  Order  X. 

57.  Bankr.  x\ct,  §  62  (a)  :  "The  actual  and  necessary  expenses  incurred'  by 
ofificers  in  the  administration  of  estates  shall,  except  where  other  provisions  are 
made  for  their  payment,  be  reported  in  detail  under  oath,  and  examined  and 
approved  or  disapproved  by  the  court.  If  approved  they  shall  be  paid  or  al- 
lowed out  of  the  estates  in  which  they  were  incurred." 

Rule  XXXV  of  the  Supreme  Court's  General  Orders:  "2.  The  compensation 
of  referees,  prescribed  by  the  act,  shall  be  in  full  compensation  for  all  services 
performed  by  them  under  the  act,  or  under  these  general  orders;  but  shall  not 
include  expenses  necessarily  incurred  by  them  in  publishing  or  mailing  notices, 
in  traveling,  or  in  perpetuating  testimony,  or  other  expenses  necessarily  incurred 
in  the  performance  of  their  duties  under  the  act  and  allowed  by  special  order  of 
the  judge. 

"3.    The  compensation  allowed  to  trustee  under  this  Act,  etc.,  etc." 

Rule  X  of  the  Supreme  Court's  General  Orders:  "Before  incurring  any  ex- 
pense in  publishing  or  mailing  notices,  or  in  traveling,  or  in  procuring  attend- 
ance of  witnesses,  or  in  perpetuating  testimony,  the  clerk,  marshal  or  referee 
may  require,  from  the  bankrupt  or  other  person  in  whose  behalf  the  duty  is  to 
be  performed,  indemnity  for  such  expense.  Money  advanced  for  this  purpose 
by  the  bankrupt  or  other  person  shall  be  repaid  him  out  of  the  estate  as  part 
of  the  cost  of  administering  the  same." 

Impliedly,  In  re  Daniels,  12  A.  B.  R.  446,  130  Fed.  597  (D.  C.  Iowa). 


1260  REMINGTON  ON  BANKRUPTCY.  §  2031 

are,  in  general,  those  for  mailing  notices  to  creditors  and  publishing  no- 
tices in  the  newspaper  of  the  bankrupt's  adjudication  and  of  his  applica- 
tion for  discharge ;  for  necessary  stationery,  printing,  office  rent  and  sup- 
plies and  clerk  hire ;  and  traveling  expenses  and  other  similar  expenses 
that  are  necessary. 

Thus,  the  referee's  expense  for  the  publication  of  notice  of  the  appli- 
cation for  discharge,  and  for  stationery,  are  properly  chargeable  against 
the  bankrupt. ^^  And  the  referee  may  be  allowed,  by  special  order  of 
the  judge,  his  traveling  and  hotel  expenses  and  amounts  paid  stenog- 
raphers, when  a  detailed  account  thereof,  verified  by  his  oath  that  they 
w^ere  necessarily  and  actually  incurred,  is  returned  to  the  bankruptcy  court 
vnth  the  proper  vouchers,  \vhen  procurable,  as  provided  by  the  general 
orders  in  bankruptcy.^  ^ 

Thus,  also,  referees  may  be  allowed  clerk  hire,  where  reasonably  neces- 
sary in  the  discharge  of  his  duties.''^ 

In  re  Tebo,  4  A.  B.  R.  235,  101  Fed.  419  (D.  C.  W.  Va.) :  "In  regard  to  the 
allowance  of  clerk  hire,  the  court  is  of  the  opinion  that  no  referee  can,  without 
the  aid  of  the  clerk  or  such  other  officer  as  he  may  require,  discharge  his 
public  duties.  This  is  a  matter  largely  within  the  discretion  of  the  referee, 
which  discretion,  if  abused,  woul-d  justify  the  court  in  removing  him.  While 
Bankrupt  Act,  §  64b,  par.  3,  does  not  mention  clerk  hire  as  being  embraced 
in  the  costs  of  administration,  yet  the  paragraph  does  not  forbid  it,  and  this 
court  is  of  the  opinion  that  it  is  a  necessary  incident  to  the  referee  in  the  due 
administration  of  his  office,  as  he  is,  in  fact,  the  judge  of  the  bankrupt  court." 

§  2031.  No  Reimbursement  Where  Expenses  Not  Required  by  Act 
or  Rules. — The  referee  is  not  entitled  to  reimbursement  from  the  estate 
of  his  expenses  incurred  in  mailing  notices  to  creditors  that  are  not  re- 
quired by  law  to  be  mailed.  Thus,  he  is  not  entitled  to  reimbursement  for 
mailing  notices  to  all  creditors  of  the  re-examination*of  a  creditor's  claim, 
although  properly  entitled  to  reimbursement  for  the  sending  of  the  notice 
lo  the  creditor  himself.  Nor  is  he  entitled  to  reimbursement  for  notices  of 
protests  against  the  confirmation  of  a  sale  i*^^  nor  for  making  copies  of  the 
petition  for  discharge  f^  nor  for  stenographer's  fees,  unless  by  stipulation 
of  parties,  or  where  employed  upon  application  of  the  trustee.*'^ 

58.  In  re  Dixon,  8  A.  B.  R.  145,  114  Fed.  675   (D.  C.  Calif.). 

59.  In  re  Daniels,  12  A.  B.  R.  446,  130  Fed.  597  (D.  C.  Iowa). 

60.  Contra,  In  re  Carolina  Cooperage  Co.,  3  A.  B.  R.  154,  96  Fed.  604  (D.  C. 
N.  Car.):  This  case  lays  down  too  broad  a  rule.  Instead  of  limiting  the  re- 
imbursement for  clerical  assistance  to  cases  where  it  is  necessary,  the  court 
broadly  prohibits  it  altogether.  Evidently  the  court  had  not  in  mind  the  cases 
of  estates  where  hundreds  of  notices  are  to  be  sent  and  where  hundreds  of 
claims  come  pouring  in  at  the  first  meeting,  etc.  In  such  cases  to  compel  the 
referee  to  do  all  the  work  himself  would  be  an  absurdit3^  The  opinion  does 
not  lay  down  safe  law. 

61.  In  re  Mammoth  Pine  Lumber  Co.,  8  A.  B.  R.  651,  109  Fed.  308  (D.  C. 
Ark.). 

62.  In  re  Dixon,  8  A.  B.  R.  145,  114  Fed.  675  (D.  C.  Calif.). 

63.  In  re  Mammoth  Pine  Lumber  Co.,  8  A.  B.  R.  651,  109  Fed.  308  (D.  C. 
Ark.);  In  re  Todd,  6  A.  B.  R.  88  (D.  C.  N.  Y.).  But  see  In  re  Daniels,  12  A.  B. 
R.  446,  130  Fed.  597  (D.  C.  Iowa). 


§    2034  COSTS  AND  EXPENSES  OF  ADMINISTRATION.  1261 

§  2032.  Method  of  Apportioning  Expenses. — In  order  to  meet  the 
difficulty  of  estimating  for  each  case  the  proportion  of  expenses  for  such 
case,  the  district  courts  have  laid  down  certain  rules  which  roughly  ap- 
portion these  expenses.  Thus,  in  several  districts,  ten  cents  for  each 
notice  sent  to  creditors  is  the  rule,  this  charge  being  estimated  to  about 
cover  the  actual  expenses  of  the  referee  for  office  rent,  clerk  hire,  pub- 
lishing notices  in  the  newspapers,  etc.,  etc. 

This  ten  cents  per  notice  is  not  chargeable  as  a  fee,  but  as  a  means  of 
covering  estimated  expenses.®^ 

SUBDIVISION    "b." 

Receiver's  and  Trustee's  Expenses. 

§  2033.  Expenses  of  Receiver  and  Trustees. — Of  course  the  ex- 
penses of  receivers  and  trustees  are  bound  to  be  various.  They  are  as 
varied  as  are  the  natures  of  the  different  businesses  that  happen  to  get 
into  bankruptcy.  Thus  there  is  likely  to  be  rent;  expenses  of  conducting 
the  business ;  insurance ;  watchman's  hire ;  clerk  hire ;  expense  of  litiga- 
tion ;  attorneys'  fees,  etc.,  etc. 

§  2034.  Rent  for  Use  and  Occupation. — Receivers  and  trustees  in 
bankruptcy  are  entitled  to  occupy  the  premises  occupied  by  the  bankrupt 
at  the  time  of  bankruptcy  for  a  reasonable  time,  sufficient  not  only  for  the 
safe  and  proper  removal  of  the  assets  therefrom,  but  also  for  the  pre- 
vention of  loss  of  value  or  deterioration  where  sale  on  the  premises  is 
desirable.*"^^  And  this  is  so  even  though  the  lease  be  broken  and  for- 
feited, and  right  of  re-entry  has  become  fixed  at  law,  provided  adequate 
compensation  for  use  and  occupation  can  be  made. 

In  re  Chambers  Calder  &  Co.,  3  A.  B.  R.  537,  98  Fed.  865  (D.  C.  R.  I.): 
"Execution  in  ejectment  would,  in  the  present  case,  interfere  with  the  posses- 
sion of  this  court,  and  on  that  ground  alone  might  be  enjoined.  It  is  further- 
more apparent  that  it  would  most  seriously  embarrass  this  court,  in  the  adminis- 
tration of  the  bankrupt's  estate,  and  result  in  unnecessary  loss  to  the  creditors. 
There  is  trustworthy  and  undisputed  evidence  that  the  stock  of  goods  on  the 
leased  premises  is  such  that  their  proper  packing  and  safe  removal  from  the 
premises  \iannot  be  accomplished  in  much,  if  any,  less  than  four  weeks.  A 
tenant,  even  though  the  conditions  of  his  lease  is  broken  by  nonpayment,  has 
such  legal  right  of  ingress  and  egress  as  is  necessary  for  the  removal  of  per- 
sonal property.  There  could  be  little  practical  value  to  the  landlord  in  the 
possession  of  the  premises  during  this  time,  and  there  is  no  suggestion  of 
any  facts  indicating  that  pecuniary  compensation  will  not  be  entirely  adequate 
for  a  reasonable  delay  in  the  surrender  of  the  premises." 

64  \naloo-ously.  In  re  Hardware  &  Furn.  Co.,  14  A.   B.  R.  186,  134  Fed.  907 

(D.  C.  N.  CO.  T^    ,  .  J  t.  ^      • 

65  Bray  v  Cobb,  3  A.  B.  R.  788,  100  Fed.  270  (reversed,  on  other  grounds,  m 
Cobb  V.  Overman,  6  A.  B.  R.  324,  109  Fed.  65  (C.  C.  A.  N.  Car.). 


1262  REMINGTON  ON  BANKRUPTCY.  f^  2036 

§  2035.  Computed  at  Lease  Rate. — Receivers  and  tru.stees  occupying 
premises  held  by  the  bankrupt  under  lease  are,  in  general,  bound  to  pay 
for  the  use  and  occupation  at  the  rate  prescribed  by  the  lease  for  rent  i^^ 
until  adjudication  in  bankruptcy,  at  any  rate;^'  although  it  is  not  by  virtue 
of  being  bound  by  the  terms  of  the  lease,  but  rather  because  its  terms  must 
be  taken  to  be  the  best  measure  of  the  value  of  the  use  and  occupation. 
Nevertheless,  the  lease  is  not,  in  all  cases,  to  be  considered  as  fixing  the 
actual  value.*^'^ 

§  2036.  Expense  of  Conducting  Business. — When  the  receiver  or 
trustee  has  been  authorized  to  conduct  the  business,  the  expense  of  con- 
ducting it  is  a  proper  charge  against  the  estate.*^^ 

66.  In  re  Gerson,  2  A.  B.  R.  170  (D.  C.  Penna.).  Also,  see,  In  re  Kelly  Dry 
Goods  Co.,  4  A.  B.  R.  530,  102  Fed.  747  (D.  C.  Wis.).  Instance,  Wilson  v. 
Penna.  Trust  Co.,  8  A.  B.  R.  169,  114  Fed.  742  (C.  C.  A.  Penna.);  instance,  In  re 
Winfield  Mfg.  Co.,  15  A.  B.  R.  257  (D.  C.  Pa.). 

But  see,  impliedly,  contra,  and  to  the  effect  that  reasonable  compensation  for 
use  and  occupation  is  the  sole  measure,  In  re  Chambers,  Calder  &  Co.,  3  A.  B. 
R.  537,  98  Fed.  865  (D.  C.  R.  I.). 

In  re  Cronson,  1  N.  B.  N.  474  (Ref.  Pa.):  In  this  case  the  stijiulated  rent 
was  held  also  to  be  the  reasonable  rent. 

In  re  Gerson,  1  N.  B.  N.  315   (Ref.  Pa.). 

67.  In  re  Hinckel  Brew.  Co.,  10  A.  B.  R.  484,  123  Fed.  942  (D.  C.  N.  Y.). 

68.  Trustee  is  not  liable  for  use  and  occupation  where  he  occupied  another's 
land  on  supposition  it  was  bankrupt's  land,  but  landlord  sued  real  tenant  for 
rent,  for  part  of  the  time  occupied  by  trustee.  In  re  Wiessner,  8  A.  B.  R.  415 
(D.  C.  N.  Y.). 

69.  But  it  has  been  held,  that  the  expenses  of  conducting  the  business  may 
not  be  charged  upon  property  to  the  loss  of  a  prior  valid  lien  thereon  without 
the  lienor's  consent. 

In  re  Cornice  &  Roofing  Co.,  13  A.  B.  R.  585  (D.  C.  Ky.)  :  "It  should  not  be 
forgotten  that  any  effort  by  the  general  creditors  or  by  the  trustee  in  their 
behalf  to  make  profits  by  continuing  to  execute  the  outstanding  contracts  of  the 
bankrupt  was  exerted  solely  in  the  interest  of  the  general  creditors.  The 
secured  creditors,  to  whom  this  was  immaterial,  relying  upon  their  liens,  had 
no  interest  in  the  venture  of  the  trustee  undertaken  for  the  benefit  of  the  gen- 
eral creditors,  and  without  their  express  consent  the  lienors  should  be  regarded 
as  having  put  to  hazard  their  interests  in  the  bankrupt's  assets — a  hazard  for 
incurring  which  they  receive  no  consideration.  True,  §  2,  cl.  5,  Bankruptcy 
Act,  as  it  was  in  force  in  June,  1902,  gave  the  court  power  to  authorize  a  trustee 
to  conduct,  for  a  limited  period,  the  business  of  the  bankrupt;  but  I  am  much 
inclined  to  think  that  a  referee  should  never  permit  a  procedure  for  the  carrying 
into  effect  of  the  unexecuted  contracts  of  a  bankrupt,  to  be  comanenced  upon 
the  initiative  of  the  trustee.  Much  abuse  of  the  power  might  be  avoided  and 
temptation  for  the  trustee  removed  by  putting  that  burden  on  the  creditors. 
Such  authorization  should  generally  be  made  upon  the  application  of  some  or 
all  of  the  general  creditors.  It  should  never  be  made,  if  carrying  it  into  full 
effect  would  be  at  the  expense  of  secured  creditors  who  have  no  interest  ip  the 
question  and  who  make  no  request  for  such  authority.  Indeed,  the  claiins  of 
secured  creditors  should,  if  possible,  be  fully  paid  or  provided  for  before  the 
trustee  or  the  general  creditors  are  permitted,  except  in  a  very  small  way,  to 
embark  in  any  venture  of  that  sort.  Of  course,  after  the  secured  creditors  are 
paid,  the  general  creditors  are  in  practical  control  of  the  estate,  and  if  willing  to 
take  risks,  may  be  indulged  by  the  referee  in  proper  instances,  for  they  alone 
are  concerned.  But  whether  these  general  views  are  sound  or  not  as  to  the 
proper  course  to  be  pursued  by  the  referee  in  such  cases,  another  course  was 
in  fact  pursued  here,  though  with  unfortunate  results.  I  think  it  was  the  duty 
of  the  trustee,  under  the  circumstances  disclosed  in   this  case,  to  have  clearly 


§   2039  COSTS  AND  EXPEN-SES  OF  ADMINISTRATION.  1263 

§  2037.  Auctioneer. — Where  special  necessity  exists  for  the  ernploy- 
inent  of  an  auctioneer,  his  compensation  may  be  allowed.''" 

But  the  employment  of  an  "official"  auctioneer  to  act  in  all  cases  would 
seem  to  be  improper.  The  selling  of  the  property  is  one  of  the  ordinary 
duties  of  the  trustee;  and  to  compel  all  sales  to  be  made  through  one 
channel  is  clearly  contrary  to  the  spirit  of  the  Bankruptcy  Act.  The 
trustee's  individual  skill  is  set  at  naught,  and  the  creditors'  selection  to 
that  extent  defeated.'^ 

But  the  practice  in  some  districts  tends  to  have  official  receivers  and 
"official"  auctioneers  as  the  general  rule.  The  Bankruptcy  Act  seems  in 
its  spirit  opposed  to  such  "official"  personages." ^ 

§  2038.  Premium  on  Bond. — The  premium  charged  by  a  surety  com- 
pany for  becoming  surety  on  the  receiver's  and  trustee's  bonds,  is  a  doubt- 
ful item  of  expense  to  tax  as  part  of  the  costs,  unless  permitted  by  rule  of 
court. 

Obiter,  In  re  Hoyt.  9  A.  B.  R.  574,  119  Fed.  987  (D.  C.  N.  Car.):  "Prior  to  the 
act  of  congress  giving  the  privilege  of  giving  bonds  in  surety  companies  (a 
modern  convenience),  such  a  thing  as  a  fee  for  bondsmen  was  unheard  of 
as  costs.  There  is  no  act  making  it  taxable  as  costs,  and,  while  courts  may 
have  allowed  such  costs  to  prevailing  parties  litigant,  it  is  a  new  departure, 
and  has  not  j^et  become  the  rule  of  court." 

§  2039.  Not  Necessary  to  Pay  Expenses  Out  of  Pocket  First, 
Then  to  Be  Allowed  Reimbursement. — Xeither  the  receiver  nor  trustee 
in  bankruptcy  is  required  first  to  pay  his  expenses  out  of  his  own  pocket, 
and  then  be  allowed  reimbursement  therefor  out  of  the  estate. 

brought  before  the  referee  the  fact  that  his  expenditures  were  trenching  upon- 
the  fund  upon  which  others  claimed  liens,  and  to  have  sought  specific  instruc- 
tions in  that  contingency,  even  to  the  extent  of  bringing  the  question  before 
the  judge  if  necessary.  I  think  his  not  doing  this,  but  going  on  at  a  loss  after 
expending  everything  on  hand,  was,  to  say  the  least,  improvident  and  greatly 
to  his  disadvantage  in  the  present  contingency.  ***!(-  joes  not  at  all  seem 
to  me  that  expenditures  made  at  the  instance  either  of  the  general  creditors  or 
of  the  trustee  in  their  behalf  to  do  what  was  done  for  their  sole  benefit  in  this 
instance  are  such  'costs  of  administration'  as  were  in  the  contemplation  of  Con- 
gress when  it  used  that  phrase  in  the  Ac-t.  Such  expenditures  occur  in  a  special 
and  abnormal  case,  which  could  hardly  have  been  within  such  contemplation. 
The  phrase  has  a  much  more  restricted  signification.  See  §§  40,  48,  51,  52. 
I  go  further,  and  doubt  whether  the  expenses  of  continuing  the  business  of  the 
bankrupt  for  a  limited  period,  under  §  2,  cl.  5,  would  take  priority  over 
valid  liens  already  existing  and  fixed,  such  as  were  Ronald's  and  Root's.  Sec- 
tion 67,  cl.  3.  In  my  judgment  valid  liens,  properl}^  acquired  and  fixed  could  not 
be  displaced  by  the  trustee  or  the  general  creditors  in  any  such  subsequent  pro- 
ceeding for  the  sole  benefit  of  the  latter." 

70.  See  ante,  §  1934. 

71.  But  compare.  In  re  ]\Ieyer  Benjamin,  13  A.  B.  R.  18  (D.  C.  X.  Y.,  af- 
firmed, on  review,  in  14  A.  B.  R.  481):  The  abuses  mentioned  in  Judge  Holt's 
opinion,  as  the  same  appears  in  the  opinion  of  the  C.  C.  A.,  on  review  of  the 
case  In  re  Benjamin,  14  A.  B.  R.  481,  ought  to  be  met  by  a  better  remedy. 

72.  Inferentially,  Gen.  Order  No.  XIV  (1):  "Xo  official  trustee  shall  be  ap- 
pointed by  the  court,  nor  any  general  trustee  to  act  in  classes  of  cases." 


1264  REMIXGTOX  ON  BANKRUPTCY.  §  2041 

In  re  McKenna,  15  A.  B.  R.  9,  137  Fed.  611  (D.  C.  N.  Y.) :  "This  court  is 
aware  of  the  rule  which  has  been  adopted  in  some  of  the  State  courts  that  no 
allowance  will  be  made  for  legal  services  until  the  executor  or  administrator 
or  other  trustee  has  first  paid  therefor;  that  then  he  may  present  the  bill  in 
his  account,  and  ask  reimbursement.  This  rule  always  leaves  the  trustee,  ex- 
ecutor or  administrator  open  to  have  the  propriety  of  his  allowance  and  pay- 
ment questioned  by  those  interested  in  the  fund.  If  the  court  decides  that 
he  has  paid  too  much,  he  must  stand  the  loss,  for  he  has  undertaken  to  decide 
that  matter  for  himself,  and,  having  conceded  the  justice  of  the  claim  of  the 
attorney — their  claim  being  a  personal  one  against  him — he  is  without  remedy. 
Without  quesiioning  the  wisdom  or  propriety  or  justice  of  such  a  rule  in  the 
cases  where  it  has  been  applied  by  the  State  courts,  this  court  is  decidedly 
of  the  opinion  that  it  ought  not  to  prevail  in  the  bankruptcy  court.  Here  there 
are  meetings  of  the  creditors,  where  all  parties  in  interest  miay  come  before 
the  court.  The  attorneys  who  have  rendered  services  for  the  trustee  or  for 
the  receiver  in  bankruptcy  may  come  before  the  court  or  referee,  as  the  case 
may  be,  and  present  their  claim.  If  no  objection  is  made  by  any  party,  and 
the  court  or  referee  in  bankruptcy  deems  the  bill  reasonable  for  the  services 
rendered,  it  may  be  allowed,  and  payment  directed  from  the  estate.  It  is 
entirely  immaterial  to  those  in  interest  whether  the  compensation  going  to  at- 
torneys for  the  trustee  be  first  paid  by  the  trustee  personally,  from  his  own 
funds,  or  by  the  trustee,  under  an  order  of  the  court,  direct  to  the  parties 
entitled  thereto,  from  the  estate,  provided  it  is  allowed  by  the  court  after  a 
fair  hearing.  The  practice  adopted  in  this  case  relieved  the  trustee  from  the 
imputation  of  having  undertaken  to  decide  as  to  the  compensation  his  attorneys 
ought  to  receive  from  the  estate.  The  course  pursued  left  it  entirely  to  the 
court  or  referee  in  bankruptcy  to  determine  the  necessity  and  the  value  of  the 
services  rendered.  This  practice  has  been  many  times  approved  in  the  bank- 
ruptcy court,  and  is  approved  by  this  court.  In  the  opinion  of  this  court, 
neither  a  trustee  nor  a  receiver  in  bankruptcy  ought  to  be  permitted  to  pay 
money  of  the  estate  to  his  attorney's  or  counsel  without  the  order  or  authority 
of  the  court,  and  certainly  such  officers  ought  not  to  be  required  to  pay  for 
such  services  from  their  own  funds.  It  is  always,  however,  within  the  power 
of  a  receiver  or  trustee  to  pay  the  attorney  from  his  own  funds,  and  then  ask 
reimbursement  from  the  estate  bj^  order  of  the   court." 

§  2040.  Costs  and  Expenses  of  Litigation. — Costs  and  expenses  of 
litigation  in  recovering  and  defending  the  possession  of  property  and 
in  contesting  claims  are  proper  charges,  when  necessary.'^ 

§  2041.  Attorney's  Fees  Incurred  by  Trustees  and  Receivers. — 
Legitimate  expenses  of  the  receiver  and  trustee  may  include  attorney's 
fees.'^ 

73.  Trustee  refused  reimbursement  for  expenses  in  carrying  up  review  of 
judge's  adverse  ruling,  because  of  laches,  etc.  In  re  Josephson,  9  A.  B.  R.  608, 
121  Fed.  142  (D.  C.  Ga.). 

74.  Page  v.  Rogers,  17  A.  B.  R.  854,  149  Fed.  194  (C.  C.  A.  Tenn.) ;  In  re 
Oppenheimer,  17  A.  B.  R.  59  (D.  C.  Pa.);  In  re  Hitchcock,  17  A.  B.  R.  664  (D. 
C.  Hawaii);  Davidson  v.  Friedman,  15  A.  B.  R.  489,  140  Fed.  85.3  (C.  C.  A. 
Mich.).  For  discussion  of  this  expense,  see  the  general  discussion  of  attorney's 
fees  in  the  ne.xt  division — Division  4. 


§  2044  COSTS  AND  EXPENSES  OF  .^dministLvtion.  1265 

SUBDIVISION    "q!' 

Attorneys'  Fees  in  Bankruptcy  Proceedings. 

§  2042.  Allowable  Attorneys'  Fees. — Reasonable  attorneys'  fees 
may  be  allowed  out  of  the  estate,  to  the  petitioning  creditors  and  the  bank- 
rupt by  express  statutory  provision,  and  to  the  trustee  and  receiver  as  part 
of  their  expenses. 

One  of  the  most  vexatious  problems  in  the  practical  administration  of 
bankrupt  estates  is  the  determination  of  the  propriety  and  amount  of  at- 
torneys' fees  allowable  out  of  the  estate. 

§  2043.  Clerical  Work  and  Ordinary  Business  Advice  Not  to  Be 
Charged  for  at  Professional  Rates. — The  fees  charged  for  at  profes- 
sional rates  must  be  for  professional  services ;  not  for  clerical  work  nor 
for  ordinary  business  advice  or  work.'^^ 

In  re  Connell  &  Sons,  9  A.  B.  R.  475,  120  Fed.  846  (D.  C.  Pa.):  "But  it  is 
not  so  much  what  was  done  by  the  attorney,  as  what  was  really  required.  The 
bankrupts  are  responsible  individually  to  the  extent  that  they  employed  him, 
regardless  of  the  character  of  what  he  was  called  upon  to  do,  but  not  so  the 
estate.  This  is  a  preferred  claim,  and  is  to  be  kept  down  to  what  it  was  in- 
tended by  the  act  to  represent,  and  that  is  simply  the  necessary  professional 
assistance  required  by  the  bankrupts  to  meet  the  demands  of  the  act  upon  them. 
In  the  present  instance,  the  time  spent  seems  to  have  been  mainly  taken  up 
in  going  over  the  books  of  the  firm  and  s.traightening  them  out  by  posting 
and  otherwise.  A  part  of  this  may  be  regarded  as  necessary,  but  a  part  certainly 
was  not.  It  was  the  work  of  a  bookkeeper  or  an  accountant  rather  than  a 
lawyer  to  post  the  books  and  reduce  them  to  the  condition  where  the  informa- 
tion they  contained  would  be  available  and  for  this  no  claim  can  be  made. 
Neither  can  there  for  the  writing  up  of  the  extra  copies  of  the  schedules  after 
the  first  one  had  been  made  out.  This  was  mere  clerical  work,  which  any  one 
could  do  who  wrote  a  fair  hand,  and  is  not  to  be  charged  against  the  estate 
at  professional  rates." 

A  considerable  portion  of  the  work  commonly  charged  for  at  pro- 
fessional rates  is  really  clerical  work.  Thus,  a  goodly  part  of  the  prepara- 
tion of  the  bankrupt's  schedules  is  purely  clerical  work  that  should  not  be 
estimated  at  professional  rates;  although,  to  be  sure,  genuine  professional 
advice  in  the  preparation  may  also  be  requisite,  in  the  classification  of 
assets,  liabilities,  etc.,  and  in  pointing  out  the  proper  forms."^ 

§  2044.  For  Many  Services  Attorney  to  Seek  Pay  from  Own 
Client,    Not   from  Estate. — For  many  of  the  services  ordinarily  per- 


75.  In  re  Mayer,  4  A.  B.  R.  241,  101  Fed!  695  (D.  C.  Wis.). 

76.  In  re  Terrill,  4  A.  B.  R.  625,  103  Fed.  781  (D.  C.  Vt.). 

2  Rem  B— 5 


1266  REMINGTON  ON  BANKRUPTCY.  §  2045 

formed,  the  attorney  must  seek  his  pay  from  his  own  cHent,  rather  than 
from  the  estateJ'^ 

In  re  Rozinsky,  3  A.  B.  R.  831,  101  Fed.  229  (D.  C.  N.  Y.) :  "In  the  present 
case  it  is  manifest  that  the  examination  was  conducted  in  the  interest  of  the 
general  creditors.  The  trustee  was  elected  by  the  attorney  of  those  creditors, 
and  the  latter  was  in  turn  immediately  employed  by  the  trustee  in  an  uncertain 
search  after  assets.  The  funds  in  hand  necessary  to  pay  preferred  claims 
should  not  be  thus  depleted,  but  such  services  should  be  regarded  as  virtually 
in  behalf  of  the  creditors  who  are  the  clients  of  the  attorney,  and  upon  the 
credit  of  what  they  may  succeed  in  realizing.'' 

§  2045.  Fees  Must  Be  "Reasonable." — The  fees  allowed  must  be 
reasonable.  What  is  and  what  is  not  a  reasonable  fee  in  bankruptcy  has 
been  touched  upon  by  the  decisions  in  numerous  instances."^ 

77.  In  re  Connell  &  Sons,  9  A.  B.  R.  475,  120  Fed.  846  (D.  C.  Pa.).  Instance, 
In  re  Castleberry,  16  A.  B.  R.  430,  143  Fed.  1021  (D.  C.  Ga.) :  Thus  the  bank- 
rupt in  having  his  exemptions  allowed.  In  re  Hart  &  Co.,  16  A.  B.  R.  726  (D. 
C.  Hawaii) :  Petitioning  creditors  for  prelim'inary  consultations  before  decision 
to  file  bankruptcy  petition.  Instance,  In  re  Oppenheimer,  17  A.  B.  R.  60  (D. 
C.  Pa.). 

78.  In  re  Covington,  13  A.  B.  R.  150,  132  Fed.  884  (D.  C.  N.  Car.):  Allowance 
of  $200  to  petitioning  creditors'  attorney  and  $50  to  bankrupt's  attorney,  in  an 
estate  of  $2000. 

In  re  Silverman  &  Schoor,  3  A.  B.  R.  237  (D.  C.  N.  Y.)  :  Petitioning  creditors 
allowed  $75.00  on  an  uncontested  petition  and  for  obtaining  stay  of  pending 
litigation. 

In  re  Goldville  Mfg.  Co.,  10  A.  B.  R.  552,  123  Fed.  579  (D.  C.  S.  C.) :  Peti- 
tioning creditors'  attorney  in  estate  of  $2,800  allowed  $250. 

In  re  Smith,  5  A.  B.  R.  559,  108  Fed.  89  (D.  C.  N.  Car.):  Voluntary  bank- 
rupt's attorney  allowed  $50. 

In  re  Carr,  8  A.  B.  R.  635,  117  Fed.  572  (D.  C.  N.  Car.),  where  court  refused 
to  follow  the  recommendation  of  the  referee,  regarding  it  exorbitant. 

In  re  Connell  &  Son,  9  A.  B.  R.  474,  120  Fed.  846  (D.  C.  Pa.):  In  voluntary 
case  bankrupt's  attorney  allowed  $100. 

Smith  V.  Cooper,  9  A.  B.  R.  755,  120  Fed.  230  (C.  C.  A.  Ga.),  wherein  the  cir- 
cuit court  of  appeals  restored  the  master's  recommendation  of  $1,000  which  the 
district  court  had  cut  down. 

In  re  Rozinsky,- 3  A.  B.  R.  831,  101  Fed.  229  (D.  C.  N.  Y.) :  Attorney  for 
trustee  refused  allowance  for  uncertain  chase  after  alleged  concealed  assets 
where  done  at  expense  of  labor  claimants. 

In  re  Lang,  11  A.  B.  R.  794,  127  Fed.  755  (D.  C.  Tex.)  :  Cutting  down  allow- 
ance to  bankrupt's  attorney  in  a  voluntary  case  to  $75,  the  estate  being  $7,500. 

In  re  O'Connell,  3  A.  B.  R.  422,  98  Fed.  8a  (D.  C.  N.  Y.) :  Allowance  to  bank- 
rupt refused  for  attorney's  fees  out  of  fraudulently  conveyed  property  recovered 
by  trustee. 

In  re  Felson,  15  A.  B.  R.  185,- 139  Fed.  275  (D.  C.  N.  Y.)  :  Allowance  of  $50 
to  bankrupt's  attorney  in  an  estate  of  $4,656  for  schedules  and  examination. 

In  re  Mayer,  4  A.  B.  R.  239,  101  Fed.  695  (D.  C.  Wis.):  $25  to  $50  for  prepa- 
ration of  schedules. 

In  re  Martin-Borgeson  Co.,  18  A.  B.  R.  179,  151  Fed.  780  (D.  C.  N.  Y.):-  $150 
for  receiver's  attorney  in  estate  of  $4,600. 

In  re  Byerly,  12  A.  B.  R.  188,  128  Fed.  637  (D.  C.  Penn.) :  Disallowing  any 
attorney  fee  at  all  for  trustee  on  account  of  the  size  of  the  estate  and  lack  of 
necessity  for  employment. 

In  re  Curtis,  4  A.  B.  R.  17,  100  Fed.  784  (C.  C.  A.  Ills.):  In  estate  of  $102,000 
allowance  of  $12,500  to  petitioning  creditors  excessive;  $2,000  proper  allowance. 

In  re  Kross,  3  A.  B.  R.  187,  96  Fed.  816  (D.  C.  N..Y.):     Allowance  to  bank- 


§    2046  COSTS  AND  EXPENSES  OE  .\DMINISTRATI0N.  1267 

§  2046.  "Reasonableness"  Left  to  Sound  Judicial  Discretion  of 
Court. — What  is  a  reasonable  amount  for  an  attorney's  fee  in  bankruptcy 
is  left  to  the  sound  judicial  discretion  of  the  court,  but  not  its  unrestrained 
discretion.'^ 

In  re  Curtis,  A  A.  B.  R.  17,  100  Fed.  784  (C.  C.  A.  Ills.):  "So,  also,  the  amount 
to  be  allowed  does  not  rest  in  mere  discretion.     The  amount  must  in  all  cases 

rupt's  attorney  of  $30  for  petition,  schedules,  etc.,  and  $20  for  discharge. 

In  re  Terrill,  4  A.  B.  R.  625,  103  Fed.  781  (D.  C.  Vt.) :  Bankrupt  tilling  out  his 
own  petition  and  schedules. 

In  re  Morris,  11  A.  B.  R.  145,  125  Fed.  841  (D.  C.  N.  Car.):  "This  court  has, 
bj^  rule,  fixed  the  maximum  fee  in  voluntary  proceedings,  where  there  is  no 
unforeseen  litigation  or  extraordinary  services,  at  $50." 

In  re  Lewin,  4  A.  B.  R.  632,  103  Fed.  850  (D.  C.  Vt.) :  Re-examination  of 
prepayment  of  $82.50  to  bankrupt's  attorney. 

In  re  Oppenheimer,  17  A.  B.  R.  60  (D.  C.  Pa.):  Receiver's  attorney  fee  $100 
in  an  estate  of  $4,200. 

In  re  Anderson,  4  A.  B.  R.  640.  103  Fed.  854  (D.  C.  S.  C.) :  Allowance  of  $90 
to  involuntary  bankrupt's  attorney. 

In  re  Mercantile  Co..  2  A.  B.  R.  419,  95  Fed.  123  (D.  C.  Mo.):  Nor  to  exceed 
$50  to  petitioning  creditors'  attorneys  in  default  cases,  for  all  work  including 
schedules,  where  ordered;  and  $25  additional  for  pro  forma  injunction  against 
transfer  of  assets  by  trustee  or  assignee. 

In  re  Little  River  Lumber  Co.,  3  A.  B.  R.  685,  101  Fed.  558  (D.  C.  Ark.); 
In  re  Tebo,  4  A.  B.  R.  235.  101  Fed.  419  (D.  C.  W.  Va.) ;  In  re  Smith,  1  A.  B.  R. 
37  (Ref.  N.  Y.);  In  re  Mitchell,  1  A.  B.  R.  665,  93  Fed.  803  (Ref.  Wis.);  In  re 
Mitchell,  1  A.  B.  R.  687  (Ref.  Pa.,  disapproved  in  In  re  Felson,  15  A.  B.  R.  193, 
139  Fed.  275);  In  re  Stotts,  1  A.  B.  R.  641,  93  Fed.  438  (D.  C.  Iowa);  In  re 
Frick,  1  A.  B.  R.  719  (Ref.  Ohio);  In  re  Smith,  2  A.  B.  R.  648  (Ref.  X.  Y.): 
Percentages  adopted. 

In  re  Woodard,  2  A.  B.  R.  692,  95  Fed.  955  (D.  C.  Va.)  :  $75  allowed  to  peti- 
tioning creditors. 

In  re  Burrus,  3  A.  B.  R.  296.  97  Fed.  926  (D.  C.  Va.)  :  Voluntary  bankrupt's 
attorney  allowed  $200:  injunctions  being  obtained,  etc. 

In  re  Fletcher,  10  A.  B.  R.  400  (Ref.  N.  Y.):  Allowance  refused  to  creditors' 
attorney  for  contesting  claims  before  election  of  trustee. 

In  re  Evans,  8  A.  B.  R.  730,  116  Fed.  909  (D.  C.  X.  Car.):  Allowance  refused 
to  trustee  who  was  attorney. 

In  re  Stratemeyer,  14  A.  B.  R.  121  (D.  C  Hawaii):  $50  allowed  bankrupt's 
attorney  for  schedules,  examination  and  discharge. 

In  re  Brundin.  7  A.  B.  R.  298,  112  Fed.  306  (D.  C.  Minn.):  Bankrupt's  attor- 
ney allowed  $271.00. 

In  re  Rosenthal  &  Lehman,  9  A.  B.  R.  626,  120  Fed.  848  (D.  C.  Mo.) :  Allow- 
ance refused  because  no  showing  of  necessity  made. 

Liddon  &  Bro.  z'.  Smith,  14  A.  B.  R.  204,  135  Fed.  43  (C.  C.  A.  Fla.) :  Allow- 
ance refused. 

In  re  Abram,  4  A.  B.  R.  575,  103  Fed.  272  (D.  C.  Calif.). 

In  re  X^iman,  14  A.  B.  R.  515  (Ref.  Mich.):  Estate  apparently  only  worth 
$1,400:  vigorous  action  of  attorney  discovered  and  recovered  $16,000:  court  al- 
lowed $2,500  for  attorney's  fees. 

In  re  Talton,  14  A.  B.  R.  617,  137  Fed.  178  (D.  C.  X.  Car.):  Bankrupt's  and 
petitioning  creditors'  attornej's'  fees  in  cases  of  composition:  $20.00  allowed  to 
bankrupt's  attorney  and  $50  to  petitioning  creditors. 

In  re  McKenna,'l5  A.  B.  R.  4,  137  Fed.  611  (D.  C.  X.  Y.) :  $800  to  attorneys 
for  trustee  where  controversy  involved  netted  $20,000  to  estate,  and  time  con- 
sumed was  50  days;  and  amount  realized  paid  all  debts. 

In  re  Carolina  Cooperage  Co.,  3  A.  B.  R.  154,  96  Fed.  950  (D.  C.  X.  Car.): 
Bankrupt's  attorney  fee  reduced  from  $75  to  $25. 

In  re  Kelly  Dry  Goods  Co.,  4  A.  B.  R.  528,  102  Fed.  747  (D.  C.  Wis.). 

Page  V.  Rogers,  17  A.  B.  R.  854,  149  Fed.  194  (C.  C.  A.  Tex.):  $15,000  al- 
lowed in  an  estate  of  $71,000,  where  total  indebtedness  was  about  $78,000. 

79.  Smith  v.  Cooper.  9  A.  B.  R.  755.  120  Fed.  230  (C.  C.  A.  Ga.) ;  In  re  Young, 
16  A.  B.  R.  108,  142  Fed.  891  (D.  C.  X.  Car.). 


1268  REMINGTON  ON  BANKRUPTCY.  §  2047 

be  reasonable,  to  be  determined  upon  evidence  of  the  service  performed  and  of 
its  value,  and,  in  the  absence  of  evidence  of  its  value,  by  the  court  from  know^l- 
edge  of  its  worth." 

And  the  order  of  alloAvance  of  attorneys'  fees  is  subject  to  review. ^^^ 
Their  fees  must  be  reasonable  fees,  but  there  is  great  diversity  of  mind 
among  lawyers  as  to  the  method  of  arriving  at  the  reasonableness  of  at- 
torney's fees.  It  is  sometimes  said  that  the  customary,  and  hence  reason- 
able, attorney's  fee-  is  a  certain  fixed  amount  per  day ;  but  certainly  such 
cannot  be  a  correct  rule,  else  it  is  continually  disregarded  in  practice. 
Neither  attorneys  nor  litigants  take  a  fixed  amount  per  day  as  the  criterion 
of  the  reasonableness  of  any  certain  charge  for  attorney's  fees ;  and  what 
common  consent  acquiesces  in  is  likely  to  be  reasonable.  Thus,  it  would 
hardly  be  right  to  charge  $25  per  day  for  instance,  for  services  in  a  suit 
involving  only  a  few  dollars,  else  poor  people  never  could  get  their  rights  ; 
nor,  on  the  other  hand,  would  it  be  reasonable  for  lawyers  in  a  great 
case  to  be  restricted  to  $25  per  day.  Other  elements  are  to  be  taken  into 
account  besides  merely  the  time  involved. 

§  2047.  Various  Elements  to  Be  Considered,  Each  Having  Mod- 
ifjdng  Effect. — The  time  alone'  used  by  the  attorney  is  not  the  only 
standard  whereby  to  measure  the  reasonableness  of  the  fees.  There  are 
at  least  five  elements  in  all :  The  time  properly  to  be  spent  on  the  par- 
ticular controversy  involved ;  the  intricacy  of  the  questions  involved 
therein;  the  amount  involved  in  that  controversy;  the  strenuousness  of  the 
opposition  encountered;  and  the  results  achieved  therein. ^^ 

In  re  McKenna,  15  A.  B.  R.  10,  137  Fed.  611  (D.  C.  X.  Y.) :  "In  fixing  the 
value  of  legal  services,  courts  have  many  things  to  consider — the  nature  and 
importance  of  the  business  transacted;  the  ability  of  the  parties  to  pay;  the 
amount  of  the  estate  involved;  the  magnitude  of  the  interests  in  question; 
the  standing  and  ability  of  the  attorneys  employed;  the  location  of  the  parties 
and  of  the  attorne3's.  These  and  many  other  things  are  proper  subjects  of 
consideration." 

In  re  Goldville  Mfg.  Co.,  10  A.  B.  R.  559,  123  Fed.  579  (D.  C.  S.  C):  "The 
amount  of  the  estate  must  to  a  large  extent  govern  its  discretion  in  determining 
what  is  'reasonable.'  " 

Ward  V.  Kohn  (  C.  C.  A.),  58  Fed.  462:  "In  the  absence  of  a  contract  price, 
attorneys  are  entitled  to  receive  what  they  deserve  for  their  services.  The 
amount  of  their  compensation  must  vary  with  the  place  in  which  their 
services  are  rendered,  for  the  same  services  are  of  more  value  in 
a  large  and  prosperous  commercial  city  than  in  a  small  country  town; 
with  the  character  and  standing  of  the  lawyer  who  renders  them, 
for    the    services    of    an    attorney     of    ripe     experience,    great     learning,    emi- 

80.  Smith  V.  Cooper,  9  A.  B.  R.  755,  120  Fed.  230  (C.  C.  A.  Ga.).  Instance, 
Page  V.  Rogers,  17  A.  B.  R.  855,  149  Fed.  194  (C.  C.  A.  Tenn.). 

81.  In  re  Knight,  3  N.  B.  N.  &  R.  446  (Ref.  Ohio).  See  note.  In  re  Smith.  5 
A.  B.  R.  559,  to  be  found  on  page  560.  Also,  to  similar  effect.  Smith  v.  Cooper, 
9  A.  B.  R.  758,  120  Fed.  230  (C.  C.  A.  Ga.). 


§   2047  COSTS  AND  EXPENSES  OF  ADMINISTRATION.  1269 

nent  ability,  and  high  reputation  deserve  and  command  better  compensa- 
tion than  those  of  the  tyro  in  the  profession;  with  the  importance  of  the  mat- 
ters involved  in  the  litigation,  for  the  same  service  deserve  more  compensation 
where  life,  liberty,  character,  or  large  amounts  of  property  are  at  stake  than 
where  but  a  few  dollars  are  in  dispute;  and  with  the  results  attained,  for  suc- 
cess earns  a  better  reward  than  failure. 

"The  wealth  of  a  defendant  cannot  be  considered  in  any  case  to  enhance 
the  fee  for  professional  services  above  a  reasonable  compensation  for  the 
service  actually  rendered.  It  cannot  be  considered  to  make  a  fee  extortionate 
or  a  compensation  unreasonably  large.  But  every  judge  and  every  gentle- 
man of  the  bar  knows  that  much  severe  professional  labor  is  rendered  by  prac- 
ticing attorneys  without  any  compensation,  and  much  more  for  compensation 
so  small  as  to  be  entirely  inadequate.  It  is  as  difficult  to  defend  the  poor  as  the 
rich  from  a  groundless  charge  of  murder.  It  requires  as  much  learning,  labor, 
and  professional  skill  to  recover  or  save  from  attack  property  of  little  value, 
that  may  be  the  entire  estate  of  the  poor  man,  as  it  does  to  recover  thousands 
of  dollars  for  the  wealthy.  The  duty  of  the  lawyer  to  defend  the  former  and 
maintain  his  rights  is  as  great  as  it  is  to  the  latter,  and  to  the  honor  of  the 
profession  it  may  be  said  that  it  is  performed  with  equal  zeal  and  fidelity. 
But  it  is  the  general  practice  of  the  gentlemen  of  the  bar  to  fix  the  fees  for 
such  services  far  below  a  fair  compensation  or  to  charge  no  fee  at  all — to 
measure  their  fees  more  by  the  inability  of  such  a  client  to  pay  a  fair  compensa- 
tion, or  to  pay  at  all,  than  by  the  value  of  the  services  they  render.  When, 
on  the  other  hand,  a  client,  who  has  the  means  to  pay  what  professional  serv- 
ices are  fairly  worth,  employs  an  attorney,  it  is  right  and  just  that  he  should 
pay  a  fair  and  reasonable  compensation  for  the  service  he  obtains.  In  other 
words,  the  fees  the  attorney  deserves  from  such  a  client  should  not  be  measured 
by  the  inadequate  compensation  and  small  fees  the  gentlemen  of  the  bar 
usually  rceive  from  those  who  are  unable  to  pay  at  all  or  to  pay  a  fair  compen- 
sation, but  they  should  be  measured  by  the  fees  usually  obtained  by  attorneys 
for  like  services  from  those  who  are  able  to  pay  just  compensation  for  the 
service  rendered." 

Compare,  to  similar  efifect.  In  re  Lang,  11  A.  B.  R.  794,  127  Fed.  755  (D.  C. 
Tex.) :  "It  may  not  always  be  an  easy  matter  to  determine  the  exact  value  of 
the  services  of  an  attorney.  Such  value  varies,  as  the  value  of  the  surgeon's 
work  varies  with  the  importance  of  the  operation  and  the  skill  and  delicacy 
required  in  performing  it.  Where  the  operation  is  simple,  and  relatively  unim- 
portant, the  fee  exacted  would  be  small  in  comparison  with  that  demanded  for 
more  serious  work.  So  it  is  with  the  services  of  the  attorney,  and  no  fixed, 
absolute  fee  can  be  provided  for  all  cases.  The  amount  of  compensation  should 
be  based,  in  ordinary  cases,  upon  the  nature  of  the  case,  the  extent  and  char- 
acter of  the  work  actually  performed,  and  the  amount  involved  in  the  contro- 
versy." 

Compare,  to  similar  efifect.  In  re  Curtis,  4  A.  B.  R.  19,  100  Fed.  784  (C.  C. 
A.  Ills.) :  "The  elements  which  enter  into  and  should  control  judgment  upon 
the  value  of  professional  services  we  think  to  be  these:  The  nature  of  the 
service,  the  time  necessarily  employed  therein,  the  amount  involved,  the  re- 
sponsibility assumed,  and  the  result  obtained." 

In  re  Burns,  3  A.  B.  R.  296  (D.  C.  Va.) :  "*  *  *  the  character  of  the 
estate,  its  condition  at  the  time  of  the  adjudication,  the  injunctions  or  restrain- 
ing orders  necessary  to  be  secured  for  its  protection,  and  the  corresponding 
amount  of  time  and  care  required  of  the  petitioner's  attorney,  are  all  matters 
to  be  considered  by  the  court  in  arriving  at  the  amount  "reasonable"  under  the 


1270  REMINGTON  ON  BANKRUPTCY.  §  2047 

circumstances.  Necessaril3%  therefore,  there  can  be  no  fixed  and  determinate 
fee  for  all  cases,  nor  will  the  amount  allowed  in  this  case  establish  a  rule  for 
subsequent  cases  in  this  court,  but  from  a  careful  consideration  of  the  evidence 
certified  by  the  referee  herein  the  court  deems  $200,  in  addition  to  the  $45.45 
alread}^  allowed  and  paid  for  expenses  incurred,  a  reasonable  fees,  and  the 
order  of  the  referee  will  be  modified  Accordingly." 

There  is  sometimes  another  element  added,  namely,  the  "dignity"  and 
"standing"  of  the  attorney  himself.^s  This  element,  however,  seems  at 
least  undignified :  justice  and  fairness,  it  would  seem,  would  resolve  the 
value  of  the  "dignity"  and  "standing"  of  the  attorney  in  any  particular 
case  into  one  or  the  other  of  these  five  elements  above  laid  down.  "Dig- 
nity" should  not  be  paid  for,  but  the  work  accomplished  in  view  of  all 
the  circumstances  and  questions  involved  rather  should  control. 

But  it  is  undoubtedly  proper  to  consider,  as  an  element,  the  vigor  of  the 
opposition ;  for  a  controversy  in  itself  involving  propositions  of  small  merit 
may  be  rendered  vexatious  by  the  strenuousness  of  one's  adversaries. 

The  results  achieved  through  the  efforts  of  the  attorney  also  have  an 
important  bearing  upon  the  reasonableness  of  the  allowance.^-^ 

Again,  the  intricacy  of  the  legal  questions  involved  should  be  taken  into 
account. 

Inferentially,  In  re  Curtis,  4  A.  B.  R.  20,  100  Fed.  784  (C.  C.  A.  Ills.):  "This 
was  the  nature  of  the  service  that  was  rendered,  and  involved  the  investiga- 
tion and  discussion  of  the  questions  whether  a  voluntary  assignment,  after  the 
passage  of  the  bankrupt  law  was  void,  or  voidable  merely,  of  the  doctrine  of 
estoppel  in  pais,  and  of  the  election  of  remedies.  These  questions  were  im- 
portant, requiring  careful  study  and  legal  ability  for  their  proper  presentation 
to  the  court." 

Inferentially,  In  re  Oppenheimer,  17  A.  B.  R.  60  (D.  C.  Pa.):  "*  *  *  so 
there  was  no  great  responsibility  involved  in  its  management,  nor  any  intricacy 
in  advising  with  regard  to  it,  both  of  which  bear  on  the  value  of  the  services 
rendered  and  the  amount  to  be  allowed." 

Each  of  these  elements  has  a  modifying  eft'ect  upon  all  the  others,  to 
increase  or  decrease  the  fees  to  be  allowed,  as  the  case  may  be.  Thus, 
where  the  issues  raised  are  uncontested  or  are  practically  incontestible, 
there  would  be  a  corresponding  tendency  toward  reduction  of  the  fees. 
Again,  petitioning  creditors  would  not  be  entitled  to  as  great  an  allowance 
for  attorneys'  fees  where  an  assignment  for  the  benefit  of  creditors,  or  a 
written  admission  of  inability,  etc.,  is  the  act  of  bankruptcy  alleged,  as  they 
would  where  an  act  of  bankruptcy  more  difficult  of  proof  and  more  likely 
to  be  contested  and  to  require  preparation  for  trial,  is  set  up.^^ 

82.  In  re  McKenna,  15  A.  B.  R.  10,  137  Fed.  611  (D.  C.  N.  Y.). 

83.  Instance,  In  re  Niman,  14  A.  B.  R.  515  (Ref.  Mich.):  In  this  case  the 
court  allowed  $2,500  where,  in  an  estate  of  apparently  only  $1,400  the  vigorous 
action  of  the  attorney  resulted  in  the  recovery  of  $16,000. 

84.  In  re  Silverman  &  Schoor,  3  A.  B.  R.  227  (D.  C.  N.  Y.).  Instance,  In  re 
Carolina  Cooperage  Co.,  3  A.  B.  R.  157,  96  Fed.  604  (D.  C.  N.  Car.). 


§    2048  COSTS  AND  EXPENSES  OF  ADMINISTRATION.  1271 

It  is  also  perhaps  proper  to  take  into  account  the  locality;  since,  after  all, 
compensation  is  to  a  certain  degree  regulated  by  the  comparative  standard 
or  cost  of  living.  Thus,-  the  same  services  in  the  same  litigation  might  merit 
different  compensation*  to  the  attorney  in  a  city  where  the  cost  of  living  is 
high  from  what  the  same  attorney  should  expect  were  he  a  resident  of  a 
place  where  the  cost  of  living  is  comparatively  low. 

§  2048.  Sixth  Element,  in  Bankruptcy  Cases,  "Economy." — And 

in  bankruptcy  the  policy  of  the  act  towards  strict  economy  should  be  kept 
in  view.^^ 

In  re  Goldville  Mfg.  Co.,  10  A.  B.  R.  556,  123  Fed.  579  (D.  C.  S.  C.) :  "It  is 
a  part  of  the  history  of  the  countrj'  that  one  of  the  causes  which  led  to  the 
repeal  of  the  Bankrupt  Act  of  1867  *  *  *  -^yas  the  great  abuse,  under  the 
former  law,  whereby  the  estates  of  bankrupts  were  consumed  b}^  the  minis- 
terial officers  of  the  court  in  enormous  costs  and  charges;  and  it  was  the 
clear  intent  of  the  present  Bankrupt  Law  that  they  should  be  administered 
for  the  benefit  of  the  creditors.  This  is  manifest  through  all  the  provisions 
respecting  fees  and  commissions.  The  compensation  allowed  to  clerks,  referees, 
and  trustees  is  so  meagre  that  it  is  a  matter  of  some  surprise  that  the  courts 
have  been  able  to  secure  persons  of  any  competency  to  administer  the  law. 
Under  the  former  act  legal  services  rendered  to  the  bankrupt  were  not  allowed 
as  a  claim  entitled  to  priority,  but  under  the  present  law  such  claims  are  al- 
lowed priority  in  the  discretion  of  the  court;  but  that  discretion  should  be  ex- 
ercised to  carry  out  and  efifectuate  the  legislative  will,  and  the  courts  cannot 
honestly  disregard  the  manifest  policy  of  the  law,  which  looks  to  great  econ- 
omy of  administration.  If  they  enforce  strict  compliance  with  the  statute  on 
the  part  of  ministerial  officers  with  respect  to  such  fees  and  allowances  as  are 
prescribed  by  law,  they  cannot  refuse  to  be  bound  by  its  limitations  in  matters 
that  are  left  to  their  discretion.  That  discretion  must  be  in  accordance  with, 
and  not  in  conflict  with,  the  policy  of  the  law.'' 

In  re  Resenthal  &  Lehman,  9  A.  B.  R.  629,  120  Fed.  848  (D.  C.  Mo.) :  "And 
when  an  allowance  is  made  it  should  be  remembered  that  the  policy  of  the  law, 
as  disclosed  in  the  compensation  fixed  for  referees,  clerks  and  trustees,  is  in 
the  direction  of  great  economy." 

In  re  Woodard,  2  A.  B.  R.  339,  691,  95  Fed.  956:  "One  of  the  purposes  of  the 
Act  of  1898  in  establishing  a  uniform  system  of  bankruptcy  was  to  avoid  what 
was  the  principal  cause  of  the  repeal  of  the  Bankruptcy  Act  of  1867 — excessive  * 
fees  and  great  expense." 

In  re  Lang,  11  A.  B.  R.  794,  127  Fed.  755  (D.  C.  Tex.):  "In  bankruptcy 
cases,  while  these  elements  should  properly  be  considered  in  fixing  the  com- 
pensation of  the  attorney,  the  policy  of  the  act  should  be  steadily  kept  in  view, 
that   is,   that   it   should   be   administered   with   severe   economy    (In    re    Goldville 

85.  In  re  Curtis,  4  A.  B.  R.  17,  100  Fed.  784  (C.  C.  A.  Ills.);  In  re  Mayer.  4 
A.  B.  R.  239,  101  Fed.  695  (D.  C.  Wis.);  In  re  Smith,  5  A.  B.  R.  559,  108  Fed. 
39-(D.  C.  N.  C);  In  re  Mercantile  Co.,  2  A.  B.  R.  419,  95  Fed.  123  (D.  C.  Mo.), 
quoted  ante,  §  2011;  In  re  Connell  &  Sons,  9  A.  B.  R.  474,  120  Fed.  846  (D.  C. 
Pa.),  quoted  ante,  §  2043;  Page  t'.  Rogers,  17  A.  B.  R.  855,  149  Fed.  194  (C.  C. 
A.  Tenn.);  In  re  Young,  16  A.  B.  R.  108,  142  Fed.  891  (D.  C.  N.  Car.);  In  re 
Carolina  Cooperage  Co.,  3  A.  B.  R.  154,  96  Fed.  950  (D.  C.  N.  Car.)..  See  ante, 
§  2011,  "Policy  of  Act,  That  of  Strictest  Economy  in  the  Exptvse§  and  Costs 
of  Administration." 


1272  REMINGTOX  ON  BANKRUPTCY.  §  2049 

Manufacturing  Co.,  supra),  so  as  to  reduce  to  the  lowest  minimum  the  cost  of 
administration." 

In  re  Byerly,  12  A.  B.  R.  186,  128  Fed.  637  (D.  C.  Penn.)  :  "It  is  the  policy 
of  the  Bankrupt  Act  to  administer  the  estates,  which  .are  brought  into  court, 
as  economically  as  possible,  and  no  large  fees  are  to  be  expected.  Those 
directly  allowed  by  the  act  are  purposely  kept  down  to  the  lowest  possible 
limits  and  the  courts  have  no  right  in  fixing  the  compensation  of  counsel  to 
be  differently  influenced.  The  attorney  in  the  present  instance  has  received 
$125  in  fees  and  an  additional  $21.76  for  serving  notices  and  mileage,  the  oc- 
casion for  which  is  not  altogether  manifest.  I  agree  with  the  referee  that  this 
is  all  under  the  circumstances  that  he  can  ask." 

In  re  Little  River  Lumber  Co.,  3  A.  B.  R.  685,  101  Fed.  560  (D.  C.  Ark.): 
■"In  view  of  the  whole  spirit  of  the  Bankrupt  Law,  counsel  who  are  required 
to  represent  the  trustee  must  expect  only  such  remuneration  as  will  actually 
compensate  them  for  services  rendered." 

Inferentially,  In  re  Daniels,  12  A.  B.  R.  450,  130  Fed.  597  (D.  C.  Iowa) :  "Much 
criticism  was  made  of  prior  Bankruptcj^  Acts  because  of  the  large  amount  of 
fees  and  expenses  incurred  in  the  administration  of  the  bankrupt  estates.  It 
was  the  manifest  purpose  of  Congress  that  such  criticism  could  not  rightly  be 
made  of  the  present  law,  and  it  fixed  the  compensation  of  referees  and  other 
ofificers  very  low.  They  may  be  inadequate  in  some  cases,  but  the  court  is 
powerless  to  increase  them.  By  the  amendment  of  February  5,  1903,  it  is 
expressly  provided  that  the  court  shall  not  allow,  under  any  form  or  guise 
whatever,  any  other  or  further  compensation  for  services  than  that  expressly 
authorized  by  the  act." 

In  re  Covington,  13  A.  B.  R.  150,  132  Fed.  1884  (D.  C.  N.  Car.):  "Attorneys 
shall  be  allowed  reasonable  compensation  for  services  rendered  which  were 
beneficial  to  the  estate.  Beyond  that  point  this  court  has  never  gone,  and  will 
«ot  go  in  the  exercise  of  a  sound  judicial  discretion." 

In  re  Oppenheimer,  17  A.  B.  R.  60  (D.  C.  Pa.):  "Economy  is  strictly  en- 
joined by  the  well  known  policy  of  the  Bankruptcy  Act,  in  the  administra- 
tion of  bankrupt  estates,  and  there  is  no  exception  with  regard  to  the  com- 
pensation of  counsel." 

§  2049.  Items  Properly  to  Be  Grouped  According  to  Separate 
Controversies  Involved  and  Estimate  Made  as  to  Each  Group. — In 

determining  the  reasonableness  of  an  attorney's  fee  bill  covering  services 
.  in  several  distinct  controversies,  it  is  convenient  to  group  the  items  relat- 
ing to  each  controversy  separately  and  to  consider  the  five  or  six  elements 
above  mentioned  with  relation  to. each  group  separately,  rather  than  with 
relation  to  the  entire  estate.  Thus,  as  to  the  element  of  the  "amount  in- 
volved :"  in  a  bankruptcy  case  where  the  entire  estate  is,  for  example, 
'$10,000,  there  might  exist  a  little  controversy  over  a  claim  of  merely  $100. 
The  element  of  "amount  involved"  would  be  comparatively  small,  merely 
$100,  and  the  fees  be  correspondingly  diminished,  notwithstanding  the 
"amount  involved"  in  the  estate  as  an  entirety,  is  $10,000. 

If  the  bankrupt  estate  is  free  from  difficult  litigation  or  litigation  involv- 
ing large  amounts,  the  creditors  should  receive  the  benefit ;  and  the  fees 
for  services  in  small  controversies  arising  in  large  estates  shotild  not  be 
•increased  "because  of  the  size  of  the  estate. 


^    2049  COSTS  AND  EXPENSES  OF  ADMINISTRATION.  1273 

Again,  in  making  allowances  to  petitioning  creditors'  and  bankrupts'  at- 
tcrneys  out  of  the  estate,  the  "amount  involved"  is  not  the  entire  esta^-e, 
where  there  are  good  and  valid  liens  existing;  but  only  the  surplus.  The 
adjudication  is  not  undertaken  for  the  benefit  of  the  valid  lienholders  and 
does  not  affect  them.  It  is  for  the  benefit  of  general  creditors;  and  the 
measure  of  the  estate  realized  for  unsecured  creditors  is,  therefore,  the 
measure  of  the  "amount  involved"  for  the  purpose  of  determining  the  rea- 
sonableness of  the  fees  for  petitioning  creditors'  and  bankrupts'  attor- 
neys.^*^ 

Compare,  inferentially,  In  re  Goldville  Mfg.  Co.,  10  A.  B.  R.  554,  123  Fed.  579 
(D.  C.  S.  Car.) :  "I  am  of  the  opinion  that  the  attorney  for  the  petitioning  cred- 
itors and  the  attorney  for  the  bankrupt  corporation  cannot,  in  the  circumstances, 
demand  or  receive  an  allowance  out  of  the  fund  derived  from  the  sale  of  the  mort- 
gaged property.  Nothing  that  has  been  done  by  the  petitioning  creditors  in  the 
proceedings  in  bankruptcy  was  intended  for  or  has  inured  to  the  benefit  of  the 
lien  creditors.  They  were  foreclosing  their  mortgage  in  the  state  court,  where 
they  had  a  right  to  be  and  to  remain.  In  discontinuing  their  proceedings  in 
the  state  court,  and  in  filing  their  petition  for  foreclosure  in  this  court,  they 
have  been  represented  by  their  own  attorneys,  and  the  bankruptcy  proceedings 
have  been  of  no  benefit  to  them.  They  make  no  claim  upon  the  fund  in  the 
hands  of  the  trustee  for  distribution  among  the  unsecured  creditors,  and  it 
seems  to  the  court  that  the  unsecured  creditors  and  their  attorneys  have  no 
claim  upon  their  fund.  Section  67d  of  the  Bankrupt  Act  *  *  *  declares  that: 
■■Liens  given  and  accepted  in  good  faith,  etc.,  shall  not  be  afifected  by  this  act.' 

"Of  course,  all  the  costs  of  the  court,  and  all  expenses  incurred  in  the  care, 
preservation,  and  sale  of  the  mortgaged  property,  are  proper  claims  against 
the  sum  realized  from  the  sale  of  it;  but  the  fees  here  asked  for  cannot  be  con- 
sidered as  in  the  nature  of  costs  of  court  and  expenses  necessarily  incident  to 
the  preservation  of  their  fund.     *     *     * 

"The  claim  of  the  attorney  for  the  petitioning  creditors  rests  upon  what  the 
court  deems  an  erroneous  view,  that  the  service  rendered  is  like  that  of  filing 
a  creditors'  bill  in  chancery  to  marshal  the  assets  of  an  insolvent  estate,  where 
assets  which  would  otherwise  have  been  lost  are  recovered,  and  the  estate  is 
administered  for  the  benefit  of  all  creditors  who  come  in  and  share  in  the  re- 
sults accomplished.  In  such  cases  courts  of  chancery  properly  considered  the 
exacting  nature  of  the  work  done,  responsibility  assumed  and  results  accom- 
plished, and  may  deal  out  compensation  with  a  liberal  hand;  but  in  this  case 
the  mere  fact  of  the  adjudication  in  bankruptcy  has  not  enabled  the  secured 
creditors  to  reach  a  fund  which  might  otherwise  have  been  lost.  It  has  not 
added  to  the  value  of  the  security  that  they  had  under  their  mortgage,  or  pro- 
vided them  with  any  additional  remedy.  The  most  that  can  be  said  is  that  it 
has  opened  the  door  of  this  forum,  where,  by  proceedings  in  rem,  instituted  by 
their  own  attorneys,  they  have  secured  a  foreclosure  of  the  lien  which  the 
Bankrupt  Act  declares  'shall  not  be  afifected  by  it.'  They  were  already  pro- 
ceeding to  foreclose  their  lien  in  another  forum,  where  it  is  presumed  they 
would  have  obtained  equal  results;     and  it  would  not  seem  consonant  with  any 

86.  Impliedly,  In  re  Frick,  1  A.  B.  R.  719  (Ref.  Ohio) :  impliedly,  Liddon  v. 
Smith,  14  A.  B.  R.  204,  135  Fed.  43  (C.  C.  A.  Fla.).  Compare,  inferentially, 
Frank  v.  Dickey,  15  A.  B.  R.  158,  139  Fed.  744  (C.  C.  A.  Mo.). 


1274  REMINGTON  ON  BANKRUPTCY.  §  2051 

principle  of  justice,  after  opening  the  door  to  them,  and  inviting  them  to  come 
in,  so  that  the  whole  estate  might  be  administered,  to  tax  them  for  the  pay- 
ment of  services  not  rendered  at  their  request  or  for  their  benefit,  and  to  de- 
plete the  fund  to  which  they  are  entitled  under  their  lien,  for  the  compensation 
of  an  attorney  who  has  pertinaciously,  but  unsucessfully,  endeavored  to  deprive 
them  of  it.  The  only  fund  brought  into  the  court  for  administration  by  the 
bankruptcy  proceedings,  which  otherwise  would  not  be  here,  is  the  fund  of 
about  $2,800  for  distribution  among  the  unsecured  creditors,  and  this  fund  must 
be  administered  in  accordance  with  the  spirit  of  the  Bankrupt  Law. 

"It  is  a  part  of  the  history  of  the  country  that  one  of  the  causes  which  led 
to  the  repeat  of  the  Bankrupt  Act  of  1867  *  *  *  was  the  great  abuse,  under 
the  former  law,  whereby  the  estates  of  bankrupts  were  consumed  by  the  minis- 
terial officers  of  the  court  in  enormous  costs  and  charges;  and  it  was  the  clear 
intent  of  the  present  Bankrupt  Law  that  they  should  be  administered  for  the 
benefit  of  the  creditors.  This  is  manifest  through  all  the  provisions  respecting 
fees  and  commissions.  The  compensation  allowed  to  clerks,  referees,  and  trus- 
tees is  so  meager  that  it  is  a  matter  of  some  surprise  that  the  courts  have  been 
able  to  secure  persons  of  any  competency  to  administer  the  law.  Under  the 
former  act  legal  services  rendered  to  the  bankrupt  were  not  allowed  as  a  claim 
entitled  to  priority,  but  under  the  present  law  such  claims  are  allowed  prior- 
ity in  the  discretion  of  the  court;  but  that  discretion  should  be  exercised  to 
carry  out  and  effectuate  the  legislative  will,  and  the  courts  can  not  honestly 
disregard  the  manifest  policy  of  law,  which  looks  to  great  economy  of  adminis- 
tration. If  they  enforce  strict  compliance  with  the  statute  on  the  part  of 
ministerial  officers  with  respect  to  such  fees  and  allowances  as  are  prescribed 
by  law,  they  cannot  refuse  to  be  bound  by  its  limitations  in  matters  that  are 
left  to  their  discretion.  That  discretion  must  be  in  accordance  with,  and  not 
in  conflict  with,  the  policy  of  the  law." 

§  2050.  "Retainer  Fees,"  No  Place  in  Bankruptcy. — "Retainer 
fees"  have  no  place  in  the  allowance  of  attorneys'  fees  out  of  bankrupt  es- 
tates.^' 

"Contingent  fees"  are  reprehensible.^^ 

§  2051.  Mere  Incidental  Benefit  from  Services  in  Opposing  Adju- 
dication, etc..  Not  Sufficient.- — ]\Iere  incidental  benefit,  such,  for  in- 
stance, as  the  causing  of  an  amendment  to  the  petition  in  a  vital  point  by 
demurring  thereto,  is  not  to  be  a  subject  of  coinpensation  oitt  of  the  es- 
tate, of  attorneys  resisting  the  petition. 

Frank  v.  Dickey,  15  A.  B.  R.  155,  158,  139  Fed.  744  (C.  C.  A.  Mo.):  "In  liti- 
gation, counsel  often  receive  valuable  suggestions  from  opposing  counsel, 
which,  as  in  this  case,  were  not  intended,  when  given,  to  be  helpful;  and  they 
do  not  because  of  such  suggestions,  feel  bound  to  share  their  fees  with  such 
opposing  counsel." 

87.  As  to  involuntary  bankrupts,  see  In  re  ]\Iayer,  4  A.  B.  R.  241,  101  Fed. 
694  (D.  C.  Wis.).  But  compare  facts,  In  re  Byerly,  12  A.  B.  R.  187,  128  Fed. 
637  (D.  C.  Pa.).  And  compare,  In  re  Smith,  5  A.  B.  R.  564,  108  Fed.  39  (D.  C. 
N.  Car.). 

88,  In  re  Young,  16  A.  B.  R.  108,  142  Fed.  891  (D.  C.  N.  Car.). 


§    2053  COSTS  AND  EXPENSES  OE  ADMINISTRATION.  1275 

Such,  also,  for  instance,  where,  in  a  contest  over  the  election  of  a  trustee, 
claims  are  successfully  disputed  by  a  creditor. 

In  re  Worth,  13  A.  B.  R.  572,  130  Fed.  927  (D.  C.  Iowa):  "In  the  matter  of 
costs,  tlie  contest  was  wholly  between  creditors  of  the  estate,  and,  while  it  is 
claimed  in  behalf  of  the  objecting  creditors  that  they  were  waging  it  in  the  in- 
terest of  the  estate,  it  clearly  appears  that  it  was  in  fact  waged  for  the  purpose  of 
controlling  the  election  of  the  trustee.  No  reason  appears  why  the  estate  should 
bear  the  cost  of  such  a  contest." 

§  2052.  Showing  to  Be  Made  of  Propriety  and  Reasonableness. 

— Showing  should  be  made  affirmatively  of  the  propriety  and  reasonable- 
ness of  the  allowance  asked  for.*^"  And  it  is  the  duty  of  the  court  to  scru- 
tinize the  fee  bills  carefully,  whether  any  party  is  appearing  to  object 
thereto  or  not. 

§  2053.  Notice  to  Creditors  Not  Requisite,  unless  by  Local  Rule. — 

No  notice  is  required  to  be  given  creditors  of  applications  for  allowance 
of  attorney's  fees  out  of  bankrupt  estates,  unless  by  special  rule  of  court. 

In  re  Stotts,  1  A.  B.  R.  641,  93  Fed.  438  (D.  C.  Iowa):  "The  question  re- 
mains whether  notice  to  the  creditors  was  a  prerequisite  to  this  allowance  by 
the  referee.  The  section  of  the  statutes  (§  64,  par.  b)  as  to  the  debts  hav- 
ing priority  of  payinent  does  not  expressly  require  notice  to  the  creditors 
before  costs  of  administration  can  be  determined  and  allowed.  In 
the  section  (§  58,  par.  a)  which  states  in  what  matters  notice  to  creditors 
must  be  given,  no  requirement  appears  for  such  notice  when  costs  of  adminis- 
tration are  to  be  settled  and  allowed;  and  my  attention  has  not  been  directed 
to  any  other  provision  of  the  statute,  nor  of  the  general  rules,  making  such 
notices  obligatory  to  the  settling  of  such  costs.  Is  there  any  good  reason  other- 
wise requiring  such  notice?  It  is  assumed  that  creditors  whose  claims  are 
filed  with  the  referee  will  inform  themselves  of  the  general  proceedings  in  the 
estate  sufficiently,  at  least,  to  advise  them  of  its  general  status,  and  file  their 
objections,  and,  if  necessary,  take  the  proper  steps  for  review  of  whatever 
orders  and  proceedings  they  may  wish  reviewed.  They  are  thus  given  abund- 
ant opportunity  for  guarding  against  improper  allowances.  If  the  referee  shall 
deem  it  proper,  whether  because  of  the  peculiarity  of  the  claim  for  costs  or 
expenses,  or  for  any  other  reason  by  him  deemed  sufficient,  I  see  no  objection 
to  his  fixing  a  time  for  the  hearing  and  notifying  the  creditors  that  at  that 
time  he  will  pass  on  the  claim.  But  there  occurs  to  me  no  good  reason  why 
the  costs  and  expenses  of  administration  must  be  passed  upon  by  a.  creditors' 
meeting,  before  he  shall  pass  on  the  same.  If  at  any  time  before  the  closing  of 
the  estate  this  court  shall  find  that  excessive  attorney's  fees  have  been  allowed 
and  paid,  this  court  doubtless  has  the  power  to  take  whatever  steps  are  found 
necessary  to  correct  this  improper  allowance  and  payment.  These  attorneys 
are  on  the  roll  of  this  court  and  subject  to  any  proper  order  this  court  may 
make. 

"I  am  of  the  opinion  that  notice  to  creditors  is  not  required  before  the  referee 
can  settle  proper  attorney's  fees." 

87.  Inferentially,  In  re  Lewin,  4  A.  B.  R.  632,  103  Fed.  850  (D.  C.  Vt.)  ;  im- 
pliedly, In  re  Rosenthal  &  Lehman,  9  A.  B.  R.  626,  120  Fed.  848  (D.  C.  Mo.");' 
perhaps,  In  re  Woodard,  2  A.  B.  R.  694,  95  Fed.  956  (D.  C.  N.  Car.). 


1276  REMINGTON  ON  BANKRUPTCY.  §  2054 

However,  it  is  a  wise  check  upon  extravagant  applications  and  allow- 
ances to  require  such  notices  to  be  given,  and  such  is  the  local  rule  of  court 
in  some  districts. ^^ 

§  2054.  Trustee's  and  Receiver's  Attorney's  Fees. — Although  not 
expressly  provided  for  by  the  statute,  as  are  attorney's  fees  for  petitioning 
creditors  and  bankrupts,  yet  attorney's  fees  are  allowable  in  proper  cases 
as  part  of  the  trustee's  expenses. ^^ 

In  re  Byerly,  12  A.  B.  R.  186,  128  Fed.  637  (D.  C.  Penn.) :  "There  is  no 
direct  provision  in  the  Bankrupt  Act  for  the  payment  of  the  fees  of  attorneys  em- 
ployed by  the  trustee,  but  they  come  in  as  part  of  the  administration  of  the 
estate  like  other  necessary  expenses." 

Page  V.  Rogers,  17  A.  B.  R.  854,  149  Fed.  194  (C.  C.  A.  Tenn.) :  "The 
reasonable  fees  of  counsel  employed  by  the  trustee  to  recover  a  voidable  or 
fiaudulent  preference  made  by  the  bankrupt  constitutes  a  part  of  the  trustee's 
expenses,  and  as  such  a  part  of  the  costs  and  expenses  of  administration  en- 
titled to  preferential  payment.  *  *  *  These  counsel  fees  were  therefore 
a  part  of  the  trustee's  expenses  and  allowable  under  our  mandate." 

Indeed,  part  of  the  usual  and  ordinary  expenses  of  the  receiver  and 
trustee  are  attorney's  fees.  There  are  almost  always  legal  questions  aris- 
ing in  the  course  of  the  administration  that  require  the  advice  and  action 
of  an  attorney;  and  attorney's  fees  are  frequently  quite  as  necessary  a  part 
of  the  expenses  as  are  the  w^ages  of  the  watchmen,  guarding  the  property 
from  robbery  and  fire.^*^ 

In  re  McKenna,  15  A.  B.  R.  6,  137  Fed.  611  (D.  C.  N.  Y.) :  "It  was  his  duty 
to  look  out  for  and  protect  the  interests  of  the  creditors,  and  in  view  of  the 
fact  that  the  bankrupt,  with  upwards  of  $20,000,  which  came  to  and  vested  in 
him  the  same  day  he  filed  his  petition  in  bankruptcy,  and  before  he  was  adjudi- 
cated a  bankrupt,  took  the  position  that  the  creditors  were  entitled  to  no  part 
of  it,  and  that  under  the  Bankrupt  Act  he  was  entitled  to  a  discharge  from  all 
his  debts,  while  retaining  the  whole  legacy,  the  trustee  would  have  been 
culpably  remiss  in  the  discharge  of  his  duty,  had  he  not  employed  counsel, 
and  good  counsel,  in  the  matter,  and  it  was  his  duty  to  have  such  counsel  pres- 
ent at  all  the  hearings  before  the  surrogate  and  in  both  proceedings. 

In  re  Erie  Lumber  Co.,  17  A.  B.  R.  702,  150  Fed.  817  (D.  C.  Ga.) :  "This 
reasoning  was  adopted  in  In  re  Burke,  6  A.  B.  R.  502,  where  it  is  declared  that 

88.  Instance,  In  re  Young,  16  A.  B.  R.  109,  142  Fed.  891  (D.  C.  N.  C). 

89.  In  re  Stotts,  1  A.  B.  R.  641,  93  Fed.  438  (D.  C.  Iowa);  In  re  Rozinsky, 
3  A.  B.  R.  830,  101  Fed.  229  (D.  C.  N.  Y.) ;  In  re  Hitchcock,  17  A.  B.  R.  664  (D. 
C.  Hawaii);  In  re  Mitchell,  1  A.  B.  R.  688  (Ref.  Pa.);  Davidson  v.  Friedman, 
15  A.  B.  R.  490,  140  Fed.  853  (C.  C.  A.  Tenn.);  In  re  Burke,  6  A.  B.  R.  502  (Ref. 
Ohio);  (1867)  In  re  Noyses.  6  B.  Reg.  277    Fed.  Cas.  10,371. 

But,  for  a  case  holding  that  attorney's  and  stenographer's  fees  for  conducting 
a  general  examination  of  the  bankrupt  and  witnesses  for  the  benefit  of  general 
creditors  should  not  be  permitted  to  absorb  the  fund  at  the  expense  of  work- 
men and  other  priority  claimants,  see  In  re  Rozinsky,  3  A.  B.  R.  830,  101  Fed. 
229  (D.  C.  N.  Y.). 

90.  In  re  Stotts,  1  A.  B.  R.  641,  93  Fed.  438  (D.  C.  Iowa):  This  decision  is 
not  to  be  accepted  as  authority  on  the  question  of  bankrupt's  attorney's  fees. 


§    2054  COSTS  AND  EXPENSES  OE  ADMINISTRATION.  1277 

'legal  services  are  often  quite  as  actual  and  necessary  as  are   doors  and  locks 
and  roofs.'  " 

In  re  Abram,  4  A.  B.  R.  575,  103  Fed.  272  (D.  C.  Calif.):  "The  trustee 
of  an  estate  in  bankruptcy  is  entitled  to  the  advice  and  assistance  of  coun- 
sel when  necessary  for  the  proper  discharge  of  his  duties  as  such  trus- 
tee, and  the  reasonable  expense  incurred  by  him  for  such  a  purpose  may  be 
allowed  as  a  charge  against  the  estate;  but  the  court  will  not,  ordinarily,  in 
the  first  instance,  undertake  to  give  any  direction  to  the  trustee  in  the  matter 
of  the  employment  of  an  attorney.  The  trustee  must  exercise  a  reasonable 
judgment  in  that  matter;  that  is,  he  must  exercise  a  reasonable  judgment  as 
to  the  necessity  for  securing  the  assistance  of  counsel — such  judgment  as  a  man 
of  ordinary  prudence  would  use  in  the  transaction  of  his  own  business.  When 
professional  services  have  been  rendered  by  an  attorney  to  the  trustee  in  his 
official  capacity,  the  court  will,  in  a  proper  proceeding,  determine  whether 
the  employment  of  such  an  attorney  was  necessary,  and,  if  found  necessary,  the 
reasonable  value  of  his  services." 

Likewise    the  receiver  is  entitled  to  employ  counsel. ^^ 

In  re  Oppenheimer,  17  A.  B.  R.  59  (D.  C.  Pa.):  "A  receiver  in  bankruptcy 
is  undoubtedly  entitled  to  the  assistance  of  counsel,  the  same  as  an  executor 
or  administrator,  and  upon  the  same  grounds;  and  a  reasonable  allowance 
therefor  will  be  made  him  in  the  settlement  of  his  accounts.  They  come  in, 
however  as  part,  of  the  expenses  of  administering  the  estate  and  not  other- 
wise;   and  there  is  no  place  for  anything  outside  of  this." 

The  attorney  for  the  trustee,  but  not  an  attorney  for  an  assignee  seeking 
allowance,  it  has  been  held  in  one  case,  is  entitled  to  be  heard  in  behalf 
of  his  fees. ^2 

But  the  better  rule  undoubtedly  is  that  he  has  no  independent  standing 
and  must  work  out  his  rights  through  the  trustee,  like  the  other  persons 
employed  by  the  trustee.  Undoubtedly,  in  cases  where  the  trustee  is  in- 
solvent and  not  responsible  in  damages,  any  employee  who  has  been  ren- 
dering assistance  to  the  trustee  may  be  heard  in  his  own  behalf,  but  this  is 
because  of  the  trustee's  individual  lack  of  responsibility.^^  g^t  in  any 
event  the  attorney  could  hardly  be  permitted  to  prosecute  appeal  or  error 
proceedings  in  his  own  name.^^  The  receiver  is  responsible  for  his  attor- 
ney's acts.^^ 

No  necessity  exists  for  the  trustee  to  pay  his  attorney  first  and  then  to 
seek  reimbursement.  He  should  get  an  order  first,  however,  before  paying 
his  attorney  from  the  estate's  funds.^*' 

91.  In  re  Erie  Lumber  Co.,  17  A.  B.  R.  702,  150  Fed.  817  (D.  C.  Ga.). 

92.  In  re  Byerly,  12  A.  B.  R.  186,  128  Fed.  637  (D.  C.  Penn.). 

93.  To  same  effect.  In  re  Young,  16  A.  B.  R.  108,  142  Fed.  891  (D.  C.  N.  Car.). 

94.  But  see  Gray  v.  Mercantile  Co.,  14  A.  B.  R.  780,  138  Fed.  344  (C.  C.  A.  N. 
Dak.),  where,  when  the  trustee  did  appeal  from  an  order  cutting  down  his 
expenses  and  commissions  the  circuit  court  held  he  was,  because  he  was  the 
representative  of  creditors,  opposed  to  his  own  claims — an  absurdity,  to  be  sure. 

95.  Mason  v.  Wolkowich,  17  A.  B.  R.  712,  721,  150  Fed.  699  (C.  C.  A.  Mass.). 

96.  In  re  McKenna,  15  A.  B.  R.  6,  137  Fed.  611  (D.  C.  N.  Y.). 


1278  REMINGTON  ON  BANKRUPTCY.  §  2055 

The  receiver  should  engage  only  counsel  that  stand  independent  of  the 
parties  of  the  litigation. ^^  The  trustee  must  exercise  reasonable  judgment 
in  employing  counsel.  It  has  been  held,  that  the  court  will  not  undertake 
to  give  any  direction,  but  will  pass  upon  the  propriety  of  the  employment 
and  the  reasonableness  of  the  fee  therefor,  after  the  services  have  been 
rendered  f^  but,  this  cannot  be  laid  down  as  a  hard  and  fast  rule.  Though 
the  trustee  should  not,  as  a  rule  employ  the  bankrupt's  attorney  as  his  own 
attorney,  yet  after  services  have  been  rendered  by  the  bankrupt's  attorney 
for  him,  the  attorney  should  not  be  refused  compensation  on  that  ground. ^^ 

§  2055.  Not  to  Employ  Attorney  to  Do  Ordinary  Business  Duties 
of  Trustee. — Trustees  should  not  be  allowed  reimbursement  .of  attorney's 
fees  for  doing  those  things  which  an  ordinary  business  man  is  supposed 
to  know  how  to  do.  Sometimes,  indeed,  attorney's  bills  are  presented  that 
provoke  the  query :  What  is  it  that  the  trustee  himself  did  in  this  case — 
was  he  a  mere  figurehead? 

Thus,  no  allowance  of  attorney's  fees  should  usually  be  made  for  selling 
property — that  is  one  of  the  very  duties  of  a  business  man  which  the  trus- 
tee, presumably,  is  elected  by  creditors  to  perform. 

In  re  Mercantile  Co.,  2  A.  B.  R.  419,  95  Fed.  123  (D.  C.  Mo.):  "It  is  further 
claimed  by  these  attorneys,  as  a  basis  of  their  compensation,  that  they  induced 
several  bidders  to  attend  the  sale  of  the  property  of  the  bankrupt,  'and  the 
property  yielded  in  cash  the  sum  of  $4,207.'  Presumptively  and  naturally 
enough,  interested  creditors  in  the  estate  would  either  attend  in  person,  or  be 
represented  at  such  sale,  to  see  that  the  property  be  not  sacrificed,  as  they 
are  the  especial  beneficiaries  in  the  product  of  the  sale.  No  provision  of  the 
Bankrupt  Act  even  squints  at  an  allowance  against  the  estate  for  such  service. 
^    ^    ^ 

"While  the  court  personally  would  be  pleased  to  exercise  a  spirit  of  large 
liberality  both  towards  the  attorneys  and  its  officers  assisting  in  the  adminis- 
tration of  bankrupt  estates,  it  must  be  understood  that  the  court  is  impressed 
with  a  sense  of  the  obligation  imposed  upon  it  by  the  Bankrupt  Act  to  so  ad- 
minister it  as  to  preserve  both  the  letter  and  the  spirit  of  the  statute,  and 
produce  the  best  results  in  behalf  of  creditors.  Any  other  course  taken  by  the 
courts  in  administering  this  statute  will  inevitabl)^  as  it  has  done  in  the  past, 
invit-e  additional  legislation  by  Congress  still  further  reducing  the  fees  both  of 
attorneys  and  of  the  officers  of  the  court." 

Mason  v.  Wolkowich,  17  A.  B.  R.  712,  150  Fed.  699  (D.  C.  Mass.):  "No 
necessity  whatever  appears  for  the  employment  of  counsel.  Upon  the  facts 
.  shown  the  court  would  not  have  sanctioned  any  such  employment,  at  least  so 
far  as  the  management  of  the  sale  was  concerned.  Employment  of  counsel 
to  perform  that  part  of  the  receiver's  duties  would  certainly  not  have  been  ap- 
proved by  the  court,  and  to  perform  them  was  no  part  of  the  proper  duties 
of  counsel,  however  employed.  A  sale  made  as  this  was,  by  persons  never 
authorized  to  make  it,  could  not  have  been  upheld  if  its  validity  had  been 
disputed  at  the  time." 

97.  In  re  Kelly  Drv  Goods  Co.,  4  A.  B.  R.  530,  102  Fed.  747  (D.  C.  Wis.). 

98.  In  re  Abram,  4  A.  B.  R.  575.  103  Fed.  272  (D.  C.  Calif.). 

99.  In  re  Dimm  &  Co.,  17  A.  B.  R.  119  (D.  C.  Pa.). 


§    2057  COSTS  AND  EXPENSES  OF  .\DMINISTRATI0N.  1279 

Frequently  attorney's  fees  for  procuring  insurance  are  asked  for.  Of 
course,  sometimes  legal  advice  and  legal  opinions  to  the  insurance  com- 
panies may  be  necessary,  but  usually  this  is  merely  a  business  man's 
duty.  100 

Compare,  In  re  Byerl3%  12  A.  B.  R.  186,  128  Fed.  6.37  (D.  C.  Penn.) :  "The 
estate  was  not  a  large  one,  the  whole  amount  passing  through  the  hands  of 
the  accountant  in  both  his  capacities  not  exceeding  $550,  exclusive  of  the  bank- 
rupt's exemption;  neither  does  it  seem  to  have  been  seriously  involved.  It 
presented  simply  the  ordinary  case  of  a  small  commercial  failure  in  which 
the  services  of  counsel  were  only  needed  to  a  limited  extent." 

It  is  not  proper  in  this  relation  to  apply  the  same  rule  applicable  to  ex- 
ecutors and  administrators,  nor  even  that  applicable  to  assignees  for  the 
benefit  of  creditors.  In  the  case  of  executors  and  administrators,  and  even 
cf  assignees,  there  is  no  presumption  of  any  special  fitness  on  the  part  of 
the  incumbent  nor  of  his  experience  in  business  afifairs ;  the  will  of  the  de- 
cedent or  assignor,  or  the  statutes  of  the  state,  throw  the  administration  in 
many  cases  into  the  hands  of  inexperienced  persons,  frequently  women 
totally  unacc[uainted  with  business  affairs,  who  must  of  necessity  employ 
some  one  more  experienced  to  perform  even  the  ordinary  business  duties 
of  the  office.  Therefore,  it  may  not  be  improper  to  allow  attorneys'  fees 
for  such  services  in  the  state  courts.  It  is  not  so,  however,  in  bankruptcy. 
The  trustee  is  the  choice  of  creditors  and  is  presumed  to  have  been  elected 
because  of  his  peculiar  fitness  to  perform  the  duties  of  his  office,  and  he 
certainly  should  be  qualified  to  perform  the  ordinary  business  duties  of  the 
office. 

§  2056.  Fees  Allowable  for  Investigating  and  Resisting  Improper 
Claims. — The  trustee  is  entitled  to  reimbursement  for  attorneys'  fees  and 
expenses  in  investigating  claims  of  creditors  and  resisting  those  he  deems 
improper. I'^i 

§  2057.  But  Creditors  Not  So  Entitled,  even  for  Successful  Objec- 
tions to  Claims,  before  Election  of  Trustee. — But  creditors  are  not  en- 
titled to  attorney's  fees  nor  to  reimbursement  for  stenographer's  fees  paid 
by  them  in  successfully  objecting  to  claims  of  other  creditor^  previously  to 
the  election  of  a  trustee.i"^ 

Inferentiall}^  In  re  ^Mercantile  Co.,  2  A.  B.  R.  419,  95  Fed.  123  (D.  C.  Mo.): 
"The  court  finds  no  warrant  in  any  provision  of  the  Act  for  compensating 
attorneys  of  petitioning  crWitors  for  their  service  in  attending  meetings  of 
the  creditors,  and  resisting  the  allowance  thereat  of  other  claims  against  the 
estate.  Thej^  are  supposed  in  such  .action  to  be  subserving  the  interests  of 
their  client,  whose  dividend  in  the  estate  would  be  augmented  in  the  proportion 

100.  Compare,  In  re  ^Mercantile  Co.,  2  A.  B.  R.  419,  95   Fed.  123   (D.  C.  :Mo.^. 

101.  In  re  Lewensohn,  9  A.  B.  R.  368,  121  Fed.  1  (C.  C.  A.  X.  Y.).  Obiter, 
In  re  Fletcher,  10  A.  B.  R.  398  (Ref.  X.  Y.). 

102.  In  re  Fletcher,  10  A.  B.  R.  398  (Ref.  X.  Y.).     See  post,  §  2071. 


1280  REMINGTON  ON  BANKRUPTCY.  §  2059 

of  the  disallowance  of  other  claims.  Each  creditor  of  the  estate  is  interested 
in  seeing  meritless  claims  defeated  and  preferential  claims  rejected.  And  one 
of  the  objects  of  creditors'  meetings  is  to  afford  each  creditor  an  opportunity 
to  object  before  the  referee  to  the  allowance  of  questionable  claims,  and  each 
creditor  has  the  right  to  object  and  make  contest.  Is  the  court  to  allow  a  fee 
to  the  attorney  of  each  objecting  and  contesting  creditor,  when  the  statute 
expressly  provides  that  'one  reasonable  attorney's  fee  for  professional  services 
actually  rendered,  irrespective  of  the  number  of  attorneys  employed,'  may  be 
allowed  by  the  court." 

§  2058.  No  Fees  for  Preparation  of  Papers  Where  Supreme 
Court's  Forms  Adequate. — Trustees  should  not  be  allowed  for  attorneys' 
fees  in  doing  these  things  for  which  the  Supreme  Court  has  already  pro- 
vided forms,  unless  the  circumstances  are  exceptional  and  the  forms  inad- 
equate. Thus,  a  trustee  sometimes  asks  allowance  for  attorneys'  fees  for 
legal  services  in  applying  for  the  appointment  of  appraisers  and  drawing 
the  journal  entry  for  the  same.  All  the  trustee  ought  to  do  is  to  call  upon 
the  referee  and  mention  his  dej>ires  and  get  the  blank  that  is  supplied  on 
demand.  So  with  trustee's  reports,  although,  of  course,  sometimes  trustee's 
reports  require  legal  assistance  in  their  preparation.  Perhaps  it  is  per- 
missible to  allow  for  legal  advice  as  to  whether  such  forms  exist  and  are  - 
applicable. 

§  2059.  Whether  Trustee  Allowed  Attorney's  Fees  for  Own  Pro- 
fessional Services. — It  has  been  held,  that  a  trustee  who  is  also  an  at- 
torney at  law  may  not  be  allowed  attorney's  fees  for  his  own  legal  services 
to  the  estate,  even  where  such  services  are  necessary. ^'^^ 

In  re  Halbert,  13  A.  B.  R.  399,  134  Fed.  236  (C.  C.  A.  N.  Y.) :  "In  support 
of  the  order  sought  to  be  reviewed,  reference  is  made  to  two  decisions:  In  re 
Mitchell,  1  Am.  B.  R.  687,  and  In  re  Welge  (D.  C),  1  Fed.  216.  Both  of  these 
were  under  the  Bankruptcy  Act  of  1867,  which  provides  that:  'In  addition  to 
all  expenses  necessarily  incurred  by  him  in  the  execution  of  his  trust  in  any 
case,  the  assignee  shall  be  entitled  to  an  allowance  for  his  services  in  such  case 
on  all  moneys  received  and  paid  out  by  him  thus:  [Giving  various  percent- 
ages].' It  must  be  assumed  that  Congress  was  advised  of  the  fact  that,  under 
the  language  above  cited,  there  had  been  occasions  when  trustees  in  bankruptcy 
who  happened  to  be  lawyers  were  allowed  compensation  for  legal  services  in 
addition  to  they  commissions,  contrary  to  the  almost  universal  practice,  which 
refuses  such  allowances  in  the  case  of  executors  or  of  trustees  generally.  Pre- 
sumably, it  was  to  provide  against  such  allowances  being  made  under  the  Bank- 
rupt Act  of  July  1,  1898,  that  Congress,  in  section  48  of  such  Act,  provided 
as  follows:  'Trustees  shall  receive  in  full  compensation  for  their  services, 
payable  after  they  are  rendered  [the  various  percentages  therein  stated].'  This 
language  is  so  precise,  so  unambiguous,  and  so  explicit  as  to  preclude  the  al- 
lowance of  additional  compensation  upon  any  theory  of  a  dual  personality. 

"The  order  of  the  District  Court  is  reversed,  and  the  claim  for  extra  services 
is  disallowed." 

103.  In  re  Felson,  15  A.  B.  R.  185,  139  Fed.  281  (D.  C.  N.  Y.) ;  In  re  Mc- 
Kenna,  15  A.  B.  R.  4,  137  Fed.  611  (D.  C.  N.  Y.);  compare,  In  re  Evans,  8  A.  B. 
R.  730,  116  Fed.  909  (D.  C.  N.  Car.);  contra,  In  re  Mitchell,  1  A.  B.  R.  687  (Ref. 
Pa.,  disapproved  in  In  re  Felson,  15  A.  B.  R.  185,  139  Fed.  281,  D.  C.  N.  Y.). 


§    2060  COSTS  AND  EXPENSES  OE  ADMINISTRATION.  1281 

But  this  rule  seems  unnecessarily  strict.  There  would  seem  no  good  rea- 
son for  prohibiting  such  allowance  altogether.  Certainly,  the  trustee's  in- 
timate acquaintance  with  the  affairs  of  the  estate  would  especially  fit  him 
to  approach  the  legal  questions  involved  with  better  appreciation  than  a 
stranger.  Undoubtedly  the  services  he  has  charged  for  should  be  scru- 
tinized with  particular  care  to  the  end  that  he  may  not  be  obtaining  extra 
compensation  for  the  performance  of  the  trustee's  duties,  under  the  guise 
of  allowances  for  professional  services,  contrary  to  the  prohibition  of  §  72 
of  the  act.  Yet  careful  scrutiny  should  not  be  converted  into  an  absolute 
prohibition  altogether  under  any  and  all  circumstances. ^^^ 

§  2060.  Attorneys  for  Creditors  Co- Operating  with  Trustee's  or 
Receiver's  Attorney  Not  Entitled. — AVhere  the  trustee  or  receiver  has 
an  attorney,  no  compensation  is  allowable  out  of  the  estate  to  attorneys 
for  creditors  assisting  him  or  co-operating  with  him,  even  though  the  serv- 
ices be  valuable. 

In  re  Kelson,  15  A.  B.  R.  185,  139  Fed.  275  (D.  C.  N.  Y.) :  "Let  the  div- 
idends go  to  the  creditors,  and  let  the  creditors  pay  their  attorneys.  It  is  not 
for  the  court  or  referee  to  undertake,  by  'allowances',  to  see  that  the  attorneys 
for  creditors  are  taken  care  of.  It  is  the  duty  of  the  court  to  take  care  of  the 
creditors,  and  the  duty  of  the  creditors  to  take  care  of  their  attorneys,  except 
in  cases  where  allowances  are  directly  authorized  and  permitted.  The  Bank- 
ruptcy Act  of  1898  was  framed  and  must  be  administered  in  the  interest  of 
creditors.  This  is  a  case  where  the  transactions  and  conduct  of  the  bankrupt 
justly  aroused  the  indignation  of  the  whole  jewelry  trade.  The  association 
took  up  the  matter,  and  have  pressed  it  honestly  and  sincerely  in  aid  of  the 

104.  No  charge  (it  is  held  in  one  case)  should  be  made  against  the  estate  for 
services  rendered  to  the  receiver  by  an  attorney  who  represents  any  of  the 
parties  to  the  litigation,  so  long  as  he  continues  to  occupy  that  relation:  the 
receiver's  attorney  should  stand  independent. 

In  re  Kelly  Dry  Goods  Co.,  4  A.  B.  R.  530,  102  Fed.  747  (D.  C.  Wis.):  "It  is 
the  well-recognized  rule  in  equity  that  the  receiver  shall  engage  counsel  who 
stands  independent  of  the  parties  to  the  litigation  (Beach,  Rec,  §  262),  and  the 
estate  is  not  chargeable  for  services  which  may  be  given  to  the  receiver  by  the 
attorney  for  either  party  during  the  continuance  of  such  relation.  So,  in  the 
case  at  bar,  unless  the  service  for  which  the  charge  was  allowed  was  both 
necessary  and  independent  in  the  sense  of  the  rule  referred  to,  it  is  not  allow- 
able as  an  expense  of  the  receivership.  The  purpose  of  the  appointment  of  a 
receiver  in  bankruptcy  is  one  of  mere  temporary  custody,  and  the  duties  are 
generally  of  the  utmost  simplicity.  If  complications  arise  in  which  the  parties 
before  the  court  have  opposing  interests,  he  should  not  take  counsel  of  either; 
and,  if  under  any  circumstances  the  attorney  of  either  party  is  engaged  by  him, 
there  must  at  least  be  complete  severance  of  all  service  and  duty  to  the  litigant 
party.  Otherwise,  any  service  rendered  must  be  deemed  either  gratuitous  or 
in  the  interest  of  the  original  client.  Here  the  attorneys  for  whom  the  charge 
is  made  appear  both  of  record  and  in  fact  for  the  petitioning  creditors  before 
and  after  the  receivership,  are  on  the  petition  for  adjudication  of  bankruptcy, 
on  the  application  for  a  receiver,  and  subsequently  appear  for  the  creditors  at 
the  meetings  held  during  the  continuance  and  after  the  close  of  the  receivership. 
Under  such  conditions,  any  service  rendered  must  be  referable  to  their  engage- 
ment for  their  clients,  and,  if  chargeable  to  the  estate  for  any  amount,  are  in 
that  relation  only  and  upon  special  order  of  the  court.  The  objection  to  the 
allowance  must  therefore  be  sustained.     So  ordered." 

2  Rem  B-6 


1282  REMINGTON  ON  BANKRUPTCY.  §  2065 

trustee;  but  this  court  cannot  find,  and  indeed  there  has  been  no  suggestion, 
that  the  trustee  failed  in  his  duty,  so  as  to  warrant  allowances  from  the 
estate  to 'creditors  and  associations  who  generously  came  to  his  aid  because  of 
the  general  desire  and  determination  to  vindicate  the  law." 

§  2061.  Exhausting  Entire  Estate  in  Attorney's  Fees  in  Efforts  to 
Discover  Assets. — The  expense  of  general  administration,  including  rea- 
sonable attorney's  and  stenographer's  fees  for  conducting  an  examination, 
are  chargeable  against  the  estate  even  if  they  absorb  funds  that  would  have 
been  sufficient  at  any  rate,  to  pay  priority  claimants.  The  priority  claimants 
are  not  like  secured  creditors,  the  owners  of  specific  property  holding  de- 
feasible title,  but  are  simply  entitled  to  be  paid  first  after  the  expenses  nec- 
essary to  a  due  administration  of  the  estate  have  been  taken  care  of,  in- 
cluding such  expenses  as  are  proper  in  the  discovery  of  assets. ^"^^ 

§  2062.  Fee  Bills,  Properly,  Should  Be  Itemized. — The  attorney's 
fee  bill  must  be  itemized — each  item  of  work  done  should  be  set  forth  in 
detail,  with  the  date. 

§  2063.  Petitioning  Creditors'  Attorney's  Fees. — Petitioning*  cred- 
itors in  involuntary  cases  are  entitled  to  an  allowance  out  of  the  estate, 
of  one  reasonable  attorney's  fee  for  professional  services  actually  ren- 
dered.ioe 

§  2064.  Is  Matter  of  Right. — Petitioning  creditors  are  entitled  to  their 
reasonable  attorney's  fee  as  of  right. ^^" 

In  re  Curtis,  4  A.  B.  R.  17,  100  Fed.  784  (C.  C.  A.  Ills.):  "The  attorney  for 
the  petitioning  creditors  is  entitled  to  this  reasonable  fee  as  of  right.  Its  al- 
lowance or  disallowance  is  not  a  matter  of  discretion." 

And  the  right  is  that  of  the  petitioning  creditors  themselves  and  the 
attorneys  have  no  independent  standing  but  must  seek  their  compensation 
through  the  petitioning  creditors. ^^^ 

§  2065.  Only  One  Fee,  Irrespective  of  Number  of  Attorneys.— 
Only  one  fee  may  be  allowed,  irrespective  of  the  number  of  attorneys  em- 
ployed.i<J» 

Thus,  where  an  involuntary  partnership  petition  was  filed,  and  after- 
wards the  individual  petition  of  one  of  the  partners  was  also  filed,  and  the 
two  proceedings  were  consolidated,  and  allowance  was  made  to  the  at- 
torneys of  the  other  partner  for  filing  schedules,  a  later  application  by  the 

105.  Contra,  In  re  Rozinsky,  3  A.  B.  R.  830,  101  Fed.  229  (D.  C.  N.  Y.). 

106.  Bankr.  Act.  §  64  (b)   (3). 

107.  Smith  v.  Cooper,  9  A.  B.  R.  755,  120  Fed.  230  (C.  C.  A.  Ga.);  In  re  Erie 
Lumber  Co.,  17  A.  B.  R.  700,  150  Fed.  817  (D.  C.  Ga.). 

108.  In  re  .Young,  16  A.  B.  R.  108,  142  Fed.  891  (D.  C.  X.  Car.). 

109.  Bankr.  Act,  §  64  (b)   (3). 


§    2068  COSTS    AND    EXPENSES    OE    ADMINISTRATION.  1283 

voluntary  bankrupt  for  attorney's  services  in  procuring  consolidation  of 
the  two  proceedings  will  be  refused.^ ^'^ 

The  term  "one  reasonable  attorney's  fee  irrespective  of  the  number  of 
attorneys  employed"  is  meant  obviously  to  exclude  compensation  to  differ- 
ent attorneys  for  traversing  the  same  ground  in  preparation  for  trial  and 
for  more  than  what  would  be  reasonable  if  one  attorney  alone  conducted 
the  trial.  In  so  far  as  the  compensation  does  not  involve  duplication  of 
services,  it  would  seem  not  improper  for  more  than  one  attorney  to  be 
employed.  The  statute  is  not  directed  against  the  employment  of  more 
than  one  attorney,  but  against  the  allowance  of  more  than  one  reasonable 
attorney  fee.  Thus,  the  investigation  of  facts  and  law  and  other  prepara- 
tion necessary  to  place  the  other  attorney  in  the  same  position,  should  not 
be  allowed  for ;  and,  in  case  more  than  one  attorney  participate  in  the  trial 
on  behalf  of  the  petitioning  creditors,  no  more  should  be  allowed  for  all 
than  if  there  had  been  but  one.^^^ 

§   2066.   Apportionment   Where   Intervening   Creditors   Assist. — 

Allowance  to  intervening  creditors,  joining  in  the  petition  may  be  made 
by  apportioning  the  one  fee  allowable,  where  the  services  rendered  were 
valuable  to  the  estate. ^^^ 

§  2067.  Apportionment  in  Cases  of  Consolidation. — Upon  the  con- 
solidation of  two  proceedings,  the  one  attorney's  fee  should  be  equitably 
divided  among  the  attorneys  for  the  respective  petitions. ^^^ 

§  2068.   For  "What  Services  Allowable  to  Petitioning  Creditors. — 

Petitioning  creditors'  attorneys'  fees  should  be  allowed  only  for  the  actual 
and  necessary  legal  work  in  procuring  the  adjudication  and  in  performing 
such  duties  as  may  thereafter  devolve  upon  them  beneficial  to  the  estate. ^^^ 

110.  Analogously  (bankrupt's  attorney  fee):  In  re  Eschwege  &  Cohn,  8  A.  B. 
R.  282  (Ref.  N.  Y.). 

111.  As  to  practice  when,  after  allowance  of  one  fee  to  the  attorney's  for  one 
partner,  the  other  partner  applies  for  a  similar  allowance,  see  In  re  Eschwege 
&  Cohn,  8  A.  B.  R.  282  (Ref.  N.  Y.).  It  would  seem  the  better  practice  for  the 
court  to  ascertain  first  whether  the  partnership  had  employed  counsel  and  to 
allow  the  fee  solely  to  the  partnership  counsel;  or,  in  case  of  dissension  between 
the  members,  to.  settle  first  who  shall  be  entitled  to  the  fee  on  notice  to  all 
partners. 

112.  But  compare,  although  not  contra,  Frank  v.  Dickey,  15  A.  B.  R.  155,  139 
Fed.  74-4  (C.  C.  A.  ]\Io.),  in  which  case  allowance  was  refused  for  filing  a  second 
petitioil,  not  acted  on,  although  by  demurring  to  the  first  petition  the  second 
petitioners  caused  amendment  in  a  vital  point. 

113.  In  re  McCracken  &  McLead,  13  A.  B.  R.  95,  129  Fed.  621  (D.  C.  La.). 
Upon    consolidation   of   two    petitions   before   the    adjudication    and    reference 

the  referee  is  not  authorized  to  pass  upon  the  necessity  of  filing  the  second  peti- 
tion.    In  re  McCracken  &  McLead,  12  A.  B.  R.  95,  129  Fed.  621  (D.  C.  La.). 

But  compare,  Frank  v.  Dickey,  15  A.  B.  R.  155,  139  Fed.  744  (C.  C.  A.  Mo.), 
where  an  allowance  to  the  attorneys  for  the  second  petition  was  refused;  other 
facts  appearing,  however,  in  this  case,  that  undoubtedly  had  bearing  on  their 
refusal. 

114.  Inferentially,  In  re  Curtis,  4  A.  B.  R.  17,  100  Fed.  784  (C.  C.  A.  Ills.); 
Frank  v.  Dickey,  15  A.  B.  R.  155,  139  Fed.  744  (C.  C.  A.  Mo.). 


1284  REMINGTON  ON   BANKRUPTCY.  §  2070 

In  re  Hart  &  Co.  L't'd.,  16  A.  B.  R.  725  (D.  C.  Hawaii) :  "The  petitioners  ap- 
peared for  creditors  of  the  bankrupt  and  during  the  course  of  the  proceedings 
were  ordered  by  the  court,  there  being  no  contest  by  the  bankrupt,  to  assist 
in  the  preparation  of  the  schedules  of  the  said  estate. 

"I  find  that  they  are  entitled  to  fees  for  professional  services  in  preparing 
petition  for  adjudication,  attendance  at  court,  return  day  and  the  day  set  for 
hearing,  at  which  time  adjudication  was  granted;  also  for  advising  in  the 
matter  of  continuance  of  business  pending  adjudication,  interview  with  cred- 
itors after  proceedings  begun,  and  attending  first  meeting  of  creditors  for 
appointment  of  trustee  and  examination  of  bankrupt.  They  are  also  entitled 
to  fees  for  assisting  the  bankrupt  in  the  preparation  of  the  schedules." 

Thus,  attorney's  fees  should  not  be  allowed  for  filing  a  second  petition 
in  bankruptcy  which  was  ignored  and  never  acted  upon;^^^  even  though 
the  second  attorney,  by  demurring  to  the  first  petition,  causes  an  amend- 
ment of  the  first  petition  in  a  vital  point.^^^  Nor  should  attorney's  fees 
be  allowed  to  petitioning  creditors  for  consultation  and  investigations  be- 
fore it  was  finally  determined  to  institute  bankruptcy  proceedings.  Such 
services  are  for  the  clients  themselves  to  take  care  of  and  are  not  charge- 
able against  the  estate. ^^' 

§  2069.  Allowance  Not  to  Be  on  Basis  of  Plaintiffs'  in  Creditors' 
Bills. — The  allowance  is  not  to  be  made  on  the  basis  of  what  woitld  be 
a  reasonable  fee  for  the  attorneys  of  the  plaintift'  in  a  creditor's  bill.^^'^ 

In  re  Mercantile  Co.,  2  A.  B.  R.  419,  95  Fed.  123  (D.  C.  Mo.):  "This  court 
discovered,  after  administering  this  act  for  a  season,  that  it  was  to  be  plagued 
and  perplexed  with  what  it  conceived  to  be  demands  enormous  in  their  extent 
for  attorney's  fees,  both  in  involuntary  and  voluntary  cases.  The  impression 
among  lawyers  in  this  particular  seems  to  be  that  the  proceedings  in  invol- 
untary cases  should  be  likened  to  the  practice  in  chancery,  and  that,  where  a 
creditor  files  a  bill  in  equity  to  reach  the  assets  of  an  insolvent  debtor  for  the 
benefit  of  creditors  generally,  an  allowance  for  the  attorney  of  the  petition- 
ing creditors  should  not  only  be  made  a  charge  upon  the  general  fund,  but  its 
extent  should  be  the  largest  liberality  of  the  chancellor." 

§  2070.  "Amount  Involved,"  Not  Entire  Estate  but  Only  Surplus 
over  Valid  Liens. — And  in  considering  the  element  of  "amount  involved," 
the  allowance  to  petitioning  creditors  should  be  based  on  the  amount  real- 
ized for  creditors  over  and  above  good  and  valid  liens;  for  the  adjudica- 
tion is  of  no  interest  nor  benefit  to  the  lienholders — their  liens  are  unaf- 
fected. It  is  only  of  benefit  to  general  creditors,  to  create  a  fund  for 
them;  and  the  limits  of  that  fund  measure  the  "amount  involved. "^^^ 

115.  Frank  v.  Dickey,  15  A.  B.  R.  155,  139  Fed.  744  (C.  C.  A.  Mo.). 

116.  Frank  v.  Dickey,  15  A.  B.  R.  155,  139  Fed.  744  (C.  C.  A.  Mo.). 

117.  In  re  Hart  &  Co.,  Ltd.,  16  A.  B.  R.  725   (D.  C.   Hawaii). 

118.  In  re  Goldville  Mfg.  Co.,  10  A.  B.  R.  554,  123  Fed.  579  (D.  C.  S.  Car.). 

119.  Apparently  contra,  In  re  Erie  Lumber  Co.,  17  A.  B.  R.  700,  150  Fed.  817 
(D.  C.  Ga.). 


§    2075  COSTS    AND    EXPENSES    OF    ADMINISTRATION.  1285 

Nevertheless,  if  the  petitioning  creditors'  attorney's  fees  were  partly 
incnfred  in  preserving  the  mortgaged  property,  such  part  might  properly 
be  assessed  against  the  mortgaged  property,  in  accordance  with  the  usual 
rules  relative  to  the  priority  of  the  expense  of  preserving  a  fund  over  the 
rights  of  lienholders  therein.^i^ 

^  2071.  No  Fees  to  Petitioning  Creditors  for  Objecting  to  Claims 
at  Election  of  Trustee. — Petitioning  creditors  are  not  entitled  to  at- 
torney's fees,  nor  to  reimbursement  of  stenographer's  fees,  paid  by  them 
in  successfully  objecting  to  claims  of  other  creditors  previously  to  the 
election  of  a  trustee. ^^"^  , 

§  2072.  Nor  for  Examination  of  Bankrupt  after  Appointment  of 
Trustee. — After  the  appointment  of  a  trustee,  no  allowance  to  the  pe- 
titioning creditors  may  be  made  for  an  attorney  or  counsel  at  the  examina- 
tion of  the  bankrupt,  inasmuch  as  such  services  are  either  for  the  trustee 
or  for  the  creditors  individually.^^i 

§  2073.  But  Allowable  for  Pursuing  Property  before  Adjudica- 
tion.— Attorney's  fees  may  be  allowed  to  the  petitioning  creditors,  how- 
ever, for  pursuing  property  before  the  adjudication. ^-2 

§  2074.  None  for  Services  after  Election  of  Trustee. — No  allow- 
ance should  be  made  to  the  petitioning  creditors  for  services  after  the  elec- 
tion of  trustee. 

In  re  Felson,  15  A.  B.  R.  191,  139  Fed.  275  (D.  C.  N.  Y.) :  "His  compensa- 
tion, however,  must  be  confined  to  services  rendered  prior  to  the  appointment 
of  the  trustee.  Up  to  that  time  the  petitioning  creditors  are  the  moving  parties 
in  behalf  of  creditors.     Thereafter  the  trustee  represents  these  interests." 

§  2075.  No  Allowance  in  General  Out  of  Mortgaged  Property  Sold. 

— In  general,  no  allowance   should  be  made   to  petitioning  creditors  out 
of  a  fund  derived  from  the  sale  of  mortgaged  property.     They  are  con- 


119.  See  post,  §§  2075,  2084. 

120.  In  re  Fletcher,  10  A.  B.  R.  398  (D.  C.  N.  Y.) ;  inferentially.  In  re  Mer- 
cantile Co.,  2  A.  B.  R.  419,  95  Fed.  123  (D.  C.  Mo.). 

Compare,  to  same  effect,  In  re  Worth,  12  A.  B.  R.  572,  130  Fed.  927  (D.  C. 
Iowa) :  "In  the  matter  of  costs  the  contest  was  wholly  between  creditors  of  the 
estate,  and,  while  it  is  claimed  in  behalf  of  the  objecting  creditors  that  they 
were  waging  it  in  the  interest  of  the  estate,  it  clearly  appears  that  it  was  in 
fact  waged  for  the  purpose  of  controlling  the  election  of  the  trustee.  No  reason 
appears  why  the  estate  should  bear  the  cost  of  such  a  contest." 

See  ante,  §  2057. 

121.  In  re  Silverman  &  Schoor,  3  A.  B.  R.  227  (D.  C.  N.  Y.).  But  compare, 
In  re  Hart  &  Co.,  16  A.  B.  R.  725  (D.  C.  Hawaii). 

122.  But  see  In  re  Evans,  8  A.  B.  R.  730,  116  Fed.  909  (D.  C.  N.  Car.) :  But 
on  rehearing  it  appears  there  was  a  misunderstanding  of  the  facts  originally. 


1286  re;mington  on  bankruptcy.  §  2077 

cerned  with  the  adjudication  and  only  incidentally  with  the  assets, .and 
then  only  for  the  mere  protection  of  them.^^-^ 

But,  as  said,  ante,  §  2070,  whatever  part,  if  any,  of  the  petitioning  cred- 
itors' attorneys'  fees  was  incurred  in  preserving  the  mortgaged  property 
may  be  properly  charged  against  the  mortgage  fund. 

§  2076.  Review  of  Allowance  of  Petitioning  Creditor's  Fees  by- 
Appeal. — The  allowance  of  the  petitioning  creditor's  attorney's  fees  by 
the  district  court  is  reviewable  by  appeal  to  the  circuit  court  of  appeals 
under  §  25  (a)  (3),  as  being  the  allowing  or  rejecting  of  a  claim  or  de- 
mand against  the  estate  in  excess  of  $500.^--^ 

§  2077.  Bankrupt's  Attorney's  Fees. — The  bankrupt,  in  involuntary 
cases,  is  entitled  to  the  allowance  of  one  reasonable  attorney's  fee,  irrespec- 
tive of  the  number  of  attorneys  employed,  for  professional  services  ac- 
tually rendered  to  him' while  performing  the  statutory  duties  of  the  bank- 
lupt;  and  in  voluntary  cases  he  may  be  allowed  such  attorney's  fees  as 
may  seem  proper  in  the  court's  discretion. ^^5 

In  re  Rosenthal  &  Lehman,  9  A.  B.  R.  627,  120  Fed.  848  (D.  C.  Mo.):  "This 
is  an  involuntary  case,  and  therefore  one  reasonable  attorney's  fee,  such  as  the 
court  may  allow  for  professional  services  actually  rendered  to  the  bankrupt 
while  performing  the  duties  prescribed  by  the  act,  should  be  included  in  and 
paid  out  of  the  estate  as  a  part  of  the  costs  of  administration. 

"By  the  provisions  of  §  7  of  the  act  (U.  S.  Comp.  St.  1901,  p.  3425)  it  is  made 
the  duty  of  the  bankrupt  in  all  cases  to  attend  the  first  meeting  of  creditors,  if 
directed  by  the  court  so  to  do;  and  when  there,  and  at  such  other  times  as  the  court 
may  order,  'to  submit  to  an  examination  concerning  the  conducting  of  his  busi- 
ness, the  cause  of  his  bankruptcy,  his  dealings  with  his  creditors  and  other  persons, 
the  amount,  kind  and  whereabouts  of  his  property,  and  in  addition  all  matters 
which  may  affect  the  administration  and  settlement  of  his  estate.'  The  same 
section  imposes  other  duties  upon  the  bankrupt,  some  of  which  (like  prepar- 
ing schedules  of  property  and  list  of  creditors)  from  their  nature  justify  and  re- 
quire the  aid  of  professional  counsel;  while  others  (like  complying  with 
specific  orders  of  court,  or  informing  the  trustee  of  any  attempt  known  to 
him  of  creditors  or  other  person* to  evade  the  provisions  of  the  act),  from  their 
essential  nature,  do  not  require,  and  would  not  justify,  the  employment  of  pro- 
fessional counsel  to  aid  the  bankrupt  in  their  performance.  And  there  are 
still  other  duties  of  the  bankrupt  (like  attending  the  hearing  upon  his  applica- 
tion for  discharge  from  his  debts)  which  may  or  may  not  require  the  aid  of 
professional  counsel  in  their  performance. 

"From  these  observations,  as  well  as  from,  the  language  employed  in  §  64b 
(U.  S.  Comp.  St.  1901,  p.  3447),  it  seems  clear  that  Congress  did  not  intend  by 

123.  See  post,  §  208'4.  In  re  Goldville  Mfg.  Co.,  10  A.  B.  R.  554,118  Fed. 
892  (D.  C.  S.  Car.);  analogously  (bankrupt's  attorney),  Liddon  v.  Smith,  14  A. 
B.  R.  204,  135  Fed.  43  (C.  C.  A.  Fla.) ;  inferentially,  In  re  Utt,  5  A.  B.  R.  383, 
105  Fed.  758  (C.  C.  A.  Ills.);  contra.  In  re  Erie  Lumber  Co.,  17  A.  B.  R.  700, 
150  Fed.  817  (D.  C.  Ga.) ;  contra,  In  re  Meis.  18  A.  B.  R.  104  (Ref.  Ky.). 

124.  In  re  Curtis,  4  A.  B.  R.  17  (C.  C.  A.  Ills.).  See  post,  subject  of  "Appeal 
and  Review." 

125.  Bankr.  Act,  §  64  (b)  (3). 


§    2078  COSTS   AND    EXPENSES    OF    ADMINISTRATION.  1287 

the  provisions  of  the  last-mentioned  section  to  lay  down  a  fixed  rule  authoriz- 
ing a  bankrupt  to  employ,  at  the  expense  of  the  estate,  counsel  to  defend  him 
in  the  performance  of  every  duty  prescribed  by  the  act.  Only  such  a  reason- 
able attorney's  fee  as  the  court  may  allow  in  each  individual  case,  and  only 
such  professional  aid  as  the  nature,  exigency,  and  difficulty  of  the  duty  to  be 
performed  in  each  individual  case  reasonably  require,  seem  to  have  been  within 
the  contemplation  of  Congress,  as  shown  by  a  consideration  of  all  the  pro- 
visions of  both  sections  in  question. 

"The  test  laid  down  in  some  cases,  and  which  was  applied  by  the  referee 
in  this  case,  is  that  legal  services  in  aid  of  the  administration  of  the  estate 
should  be  paid  for  out  of  the  funds  of  the  estate,  while  those  for  the  personal 
benefit  or  protection  of  the  bankrupt  should  not  be  so  paid.  This  may  or-  may 
not  be  a  correct  test,  but  the  difficulty  arises  in  determining  what  services  are 
purely  personal,  as  distinguished  from  those  which  are  incidental  to  the  admin- 
istration of  the  estate  under  the  Bankruptcy  Act.  The  act  of  1898,  like 
its  predecessors,  has,  broadly  speaking,  two  fundamental  purposes — one  to 
relieve  an  honest  debtor  from  the  incubus  of  overwhelming  debt,  and  re- 
store him  to  the  activities  of  business  life;  another  is  to  make  a  just  and 
equitable  distribution  of  the  bankrupt's  estate  among  his  creditors.  The 
true  administration  of  an  estate  in  bankruptcy  is  concerned  as  much  with 
securing  a  discharge  to  the  debtor  as  with  the  distribution  of  his  assets, 
and  to  that  end  it  is  frequently  essential  for  the  bankrupt  to  make  a 
full  showing  with  relation  to  his  property  and  business  methods.  He  is  ordered 
to  appear  before  the  referee  for  an  examination  touching  'the  conducting  of 
his  business,  the  cause  of  his  bankruptcy,  his  dealings  with,  his  creditors  and 
other  persons,  the  amount,  kind  and  whereabouts  of  his  property,  and  in  ad- 
dition all  matters  which  may  afifect  the  administration  and  settlement  of  his 
estate.'  The  scope  of  this  examination  may,  ancf  frequently  does,  involve  in- 
quiries relative  to  matters  about  which  the  bankrupt  has  made  oath,  and  other 
matters  which,  by  §  14b,  preclude  discharge.  Obviously  the  personal  benefit  and 
protection  of  the  bankrupt  at  such  an  examination  is  involved,  and  so,  also, 
the  accomplishment  of  one  of  the  main  purposes  of  the  act — to  secure  the 
discharge  of  an  honest  debtor — is  involved.  Thus  it  appears  that  what  is  for  the 
personal  benefit  and  protection  of  the  bankrupt  may  also  be  of  commanding 
importance  in  the  just  and  impartial  administration  of  the  bankruptcy  law." 

§  2078.    In  Involuntary  Cases,   Confined  to  Services  Rendered 
While  Bankrupt  in  Performance  of  Duties  Prescribed  by  Law. — 

The  bankrupt's  attorney's  fee  out  of  the  estate  in  involuntary  cases  is  con- 
fined to  professional  services  in  assisting  the  bankrupt  to  pertonn  the  du- 
ties imposed  upon  him  in  §  7  of  the  act  and  elsewhere  in  the  law.^^^ 

In  re  Payne,  18  A.  B.  R.  193  (D.  C.  N.  Y.) :  "Under  this  it  would  seem  that 
the  basis  of  compensation  is  not  payment  for  all  services  which  the  bankrupt 
may  request  of  his  attorney,  but  for  the  services  to  the  bankrupt,  in  involun- 
tary  cases,  while   performing  the   duties  prescribed  upon   the   bankrupt   by  the 

126.  Bankr.  Act,  §  64  (b)  (3);  In  re  Stratemeyer,  14  A.  B.  R.  120  (D.  C. 
Hawaii);  In  re  Goldville  Mfg.  Co.,  10  A.  B.  R.  552,  123  Fed.  579  (D.  C.  S.  C.) ; 
In  re  Michel,  1  A.  B.  R.  665.  95  Fed.  803  (D.  C.  Wis.);  In  re  Connell  &  Sons, 
9  A.  B.  R.  474,  120  Fed.  846  (D.  C.  Pennrf.) ;  In  re  Anderson,  4  A.  B.  R.  640,  103 
Fed.  854  (D.  C.  S.  C). 


1288  REMINGTON  ON  BANKRUPTCY.  §  2082 

bankruptcy  law.  Most  of  the  work  covered  by  the  application  for  this  allowance 
was  apparently  work  done  at  the  request  of  the  bankrupt,  and  not  work  required 
from  the'  bankrupt's  attorney  by  the  provisions  of  the  statute." 

In  re  Mayer,  4  A.  B.  R.  241,  101  Fed.  695  (D.  C.  Wis.):  "The  test  for  com- 
pensation out  of  the  estate  is  whether  the  service  is  rendered  in  the  performance 
of  the  bankrupt's  duty  in  aid  of  the  estate  and  its  administration,  and  not 
whether  the  bankrupt  stands  in  need  of  the  service  of  counsel  for  his  per- 
sonal benefit  and  protection  in  any  of  the  proceedings." 

§  2079.  Actual  Benefit  to  Estate  Not  Test,  However.— Actual  bene- 
fit to  the  estate  is  not,  however,  essential.  The  attorney  for  the  bankrupt 
i?  not  hired  by  the  estate.  His  fees  are  for  services  rendered  primarily  to 
the  bankrupt,  but  which  are  in  many  instances,  equally  beneficial  to  cred- 
itors by  putting  the  estate  in  the  course  of  an  equal  distribution  in  bank- 
ruptcy.^2" 

§  2080.  Services  Must  Be  Reasonably  Necessary  and  Actually 
Rendered. — In  the  absence  of  proof  that  the  employment  of  counsel  in  a 
given  case  is  reasonably  necessary  and  that  the  services  were  secured  and 
actually  rendered  in  good  faith  to  promote  the  purposes  of  the  Bankrupt 
Act,  a  claim  therefor  must  be  disallowed. ^^s 

§  2081.  Must  Be  Professional  Legal  Services,  and  Not  Merely  Cler- 
ical or  Business. — Neithea  clerical  work,  such  as  that  of  posting  the  bank- 
rupt's books,  €0  that  the  information  therein  contained  would  be  available 
in  making  up  the  schedules  ;  nor  the  making  of"extra  copies  of  the  schedules, 
after  the  first  one  was  made,  may  be  charged  for  at  professional  rates. ^^9 
Nor  may  purely  business  assistance  be  so  charged  for. 

And  the  attorney  must  disclose  his  financial  dealings  with  his  client  that 
the  court  may  act  intelligently. ^^"^ 

§  2082.  Legal  Assistance  in  Preparing  Schedules,  Examining 
Claims  at  First  Meeting,  etc.,  Proper. — Thus  the  bankrupt  may  have 
fees  allowed  to  his  attorney  for  helping  him  prepare  his  schedules,  for  help- 
ing him  examine  claims  so  as  to  be  able  to  report  to  the  creditors  whether 
the  claims  are  correct  or  not,  etc.,  etc. ;  for  these  are  necessary  services  ren- 
dered him  while  he  is  engaged  in  the  performance  of  his  statutory  duties. ^^^ 

127.  Tn  re  Kross,  3  A.  B.  R.  187,  96  Fed.  819  (D.  C.  N.  Y.).  But  compare,  In 
re  Covington,  13  A.  B.  R.  1.50,  132  Fed.  884  (D.  C.  N.  C). 

128.  In  re  Rosenthal  &  Lehman,  9  A.  B.  R.  626,  120  Fed.  848  (D.  C.  Mo.). 

129.  In  re  Connell  &  Sons,  9  A.  B.  R.  474.  120  Fed.  846  (D.  C.  Penna.). 

130.  In  re  Carr.  9  A.  B.  R.  58,  117  Fed.  572  (D.  C.  N.  Car.);  In  re  Smith,  5 
A.  B.  R.  563,  108  Fed.  39  (D.  C.  N.  Car.). 

131.  In  re  Kross,  3  A.  B.  R.  187,  96  Fed.  816  (D.  C.  N.  Y.);  In  re.Stratemeyer, 
14  A.  B.  R.  121  (D.  C.  Hawaii);  In  re  Anderson,  4  A.  B.  R.  645  (D.  C.  S.  C). 
Obiter,  In  re  Lewin,  4  A.  B.  R.  632,  103  Fed.  884  (D.  C.  Vt.);  (voluntary)  In  re 
Hitchcock,  17  A.  B.  R.  664  (D.  C.  Hawaii). 


§    2085  COSTS    AND    EXPENSES    OF   ADMINISTRATION.  1289 

§  2083.  "Amount  Involved"  Not  Entire  Estate  but  Only  Surplus 
over  Valid  Liens. — In  estimating  the  element  of  "amount  involved"  in 
arriving  at  the  reasonableness  of  the  bankrupt's  attorney  fee,  not  the  amount 
of  the  entire  estate  is  to  be  taken  but  only  the  amount  left  outside  of  the 
valid  liens, ^^-  as  in  cases  of  allowance  to  petitioning  creditors  for  attor- 
ney's  fees. 

§  2084.  No  Allowance  Out  of  Mortgaged  Property,  except  for 
Mere  Preservation. — No  allowance  should  be  made  to  the  bankrupt's  at- 
torney out  of  the  proceeds  of  mortgaged  property,  except  where  necessarily 
incurred  in  its  mere  preservation. ^^^ 

§  2085.  And  None  for  Services  in  Opposing  Bankruptcy  Proceed- 
ings.— Bankrupt's  attorney  fees  should  not  be  allowed  where  they  are  in- 
curred in  opposing  the  progress  of  the  bankruptcy  proceedings  rather  than 
in  assisting  it.^^-* 

In  re  Woodard,  2  A.  B.  R.  692,  95  -Fed.  955  (D.  C.  N.  Car.):  "There  is 
no  evidence  before  the  court  that  the  bankrupt  has  performed  the  duties  pre- 
scribed. He  made  an  assignment  with  preferences — the  act  of  bankruptcy- 
complained  of — and  has  been  actively  engaged  in  trying  to  defeat  or  delay 
the  proceedings  at  every  stage,  and  making  the  proceedings  as  expensive  as 
possible.  To  make  the  allowance  for  the  services  of  an  attorney  in  this  behalf 
does  not  seem  to  be  contemplated  in  the  act.  The  court  has  seen  and  heard 
nothing  to  warrant  the  exercise  of  the  discretion  in  this  behalf." 

Obiter,  In  re  Rosenthal  &  Lehman,  9  A.  B.  R.  626,  120  Fed.  848  (D.  C.  Mo.): 
■"It  goes  without  sajnng  that,  if  the  services  of  counsel  are  secured,  or,  when 
secured,  are  employed  for  the  purpose  of  screening  the  bankrupt  from  the  con- 
sequences of  his  own  wrongful  conduct,  or  for  the  purpose  of  suppressing  the 
truth,  or  otherwise  thwarting  the  operation  of  the  act,  no  compensation  can 
reasonably  be  allowed  by  the  court  to  be  paid  out  of  the  assets  of  the  estate. 
The  test,  in  my  opinion,  is  whether  the  employment  is  necessarily  made,  and 
the  services  necessarily  rendered  in  good  faith  for  the  real  purpose  of  so  ad- 
ministering the  act  in  a  given  case  as  to  accomplish  the  purposes  of  its  enact- 
ment. If  the  employment  is  reasonably  necessary  to  aid  either  in  the  discovery 
■of  assets,  or  securing  the  bankrupt's  discharge,  or  protecting  the  bankrupt 
from  unjust  charges  or  imputations  or  wrong,  such  as  would  subject  him  to 
the  penalties  of  the  act,  a  reasonable  allowance  should  be  made  therefor.  If, 
on  the  other  hand,  there  is  no  reasonable  necessit}'-  for  the  employment  for 
either  of  the  foregoing  purposes,  or  if  the  employment  is  not  in  good  faith  to 
protect  an  innocent  debtor  in  the  assertion  of  his  rights  under  the  act,  then  no 
allowance  should  be  made  therefor." 

Pratt  V.  Bothe,  12  A.  B.  R.  533,  130  Fed.  670  (C.  C.  A.  Mich.):  "By  §  64b, 
the  law  provides  for  compensation  to  an  attorney  who  assists  the  bankrupt  in 

132.  See  ante,  §  2070.  In  re  Goldville  Mfg.  Co.,  10  A.  B.  R.  552,  123  Fed.  579 
(D.  C.  S.  C). 

.  133.  Liddon  &  Bro.  v.  Smith,  14  A.  B.  R.  204,  135  Fed.  43  (C.  C.  A.  Fla.) ; 
analogously.  In  re  Goldville  Mfg.  Co.,  10  A.  B.  R.  556,  118  Fed.  892  (D.  C.  S. 
C).     See  ante,  §  2075. 

134.  In  re  Lewin,  4  A.  B.  R.  632,  103  Fed.  850  (D.  C.  Vt.);  In  re  Anderson, 
4  A.  B.  R.  640,  103  Fed.  854  (D.  C.  S.  C);  In  re  Felson,  15  A.  B.  R.  185,  139 
Fed.  275  (D.  C.  S.  C). 


1290  REMINGTON  ON  BANKRUPTCY.  §2086 

performing  the  duties  imposed  upon  him.  But  this  is  done  for  the  purpose  of 
facilitating  the  proceedings,  and  for  the  benefit  of  the  estate.  It  is  not  done 
in  recognition  of  any  contract  obligation  of  the  bankrupt.  Many  cases  have 
been  cited  to  us — mostly  cases  arising  upon  the  last  preceding  act — in  which 
the  bankruptcy  courts  have  given  some  countenance  to  the  appellant's  conten- 
tion that  the  debtor  may  employ  counsel  to  resist  the  petition  of  his  creditors 
for  an  order  adjudicating  him  a  bankrupt,  and  charge  his  assets,  with  the  pay- 
ment thereof,  and  in  one  case  that  doctrine  seems  to  have  been  quite  pointedly 
held.  In  re  Comstock,  6  Fed.  Cas.  239,  No.  3,074.  The  idea  which  pervades 
the  allowance  of  such  a  charge  seems  to  have  been  grounded  upon  a  disposi- 
tion to  be  merciful  to  the  debtor,  who,  it  is  said,  has  given  up  all  his  property, 
and  is  without  other  means  of  repelling  an  unjust  prosecution.  But  it  is  by  no 
means  a  new  thing — indeed,  it  is  a  situation  constantly  recurring — where  a  man, 
whether  by  his  fault  or  his  misfortune,  is  without  means  to  make  full  defense 
of  his  property  rights.  It  is  unfortunate  often,  but  it  has  never  been  thought 
that  property  belonging  to  others,  or  which  might  be  adjudged  to  them,  should 
be  drawn  upon  to  enable  the  man  to  make  defense.  Many  cases  are  cited 
which  more  or  less  oppugn  the  doctrine  of  such  decisions  as  In  re  Comstock, 
supra." 

Obiter,  In  re  Kross,  3  A.  B.  R.  187,  96  Fed.  816  (D.  C.  N.  Y.) :  "And  the 
much  more  common  'service'  in  aiding  the  bankrupt  to  conceal,  justify  or  ex- 
tenuate questionable  acts  or  transactions,  must  be  equally  excluded,  since 
it  is  not  'reasonable'  under  §  60  or  §  64  to  charge  the  estate,  to  the  detriment 
of  creditors,  for  services  in  extricating  or  endeavoring  to  extricate  or  shield 
the  bankrupt  from   difficulties   caused  by  his   own   questionable   conduct." 

But  where  the  attorney  was  not  privy  to  the  bankrupt's  misconduct,  he 
should  not  be  denied  a  reasonable  fee  for  services  not  aiding  in  the  mis- 
conduct. ^^^ 

And  whether,  if  the  bankrupt  is  in  contempt,  his  attorney's  fees  should 
be  allowed  him,  the  application  therefor  being  in  his  own  right,  has  not 
been  decided,  but  it  has  been  decided  that  if  the  application  were  made  prior 
to  the  misconduct,  the  attorney's  fees  may  be  allowed,  the  attorney  in  no 
wise  participating  in  the  misconduct. 

In  re  Mayer,  4  A.  B.  R.  239,  101  Fed.  695  (D.  C.  Wis.):  "The  bankrupt  is 
in  contempt,  and  clearly  cannot  move  the  court  for  any  matter  of  indulgence 
until  he  has  cleared  his  contempt.  Hovey  v.  Elliott,  167  U.  S.  409,  436,  17  Sup. 
Ct.  841,  42  L.  Ed.  215.  Whether  this  general  rule  would  exclude  him  from 
invoking  subsequently  the  benefits  secured  by  statute  of  an  allowance  for  his 
attorney  is  a  question  not  presented  on  this  record,  for  the  reason  that  the 
application  was  made  and  the  attorney's  services  were  rendered  before  the 
occurrence  of  the  contempt;  and  it  is  undoubted,  both  from  the  circumstances 
of  the  case  and  the  reputation  of  his  attorneys  at  this  bar,  that  they  were  in  no 
manner  privy  to  the  disobedience  of  the  final  order  of  the  court.  To  the 
extent  that  such  services  were  rendered  within  the  intent  of  the  statute,  the  sub- 
sequent misconduct  of  the  bankrupt,  without  fault  on  the  part  of  the  attorneys, 
cannot  serve  to  preclude  the  allowance  of  a  fee." 

§  2086.  For  Attendance  at  Bankrupt's  Examination  Allowable. — 
Bankrupt's  attorney  fees  for  attendance  on  the  bankrupt's  own  examination 

135.    In  re  Mayer,  4  A.  B.  R.  238,  101  Fed.  695  (D.  C.  Wis.). 


§    2087  COSTS    AND    EXPENSES    OE    ADMINISTRATION,  1291 

are  allowable.  It  has  been  contended  that  the  bankrupt  should  not  be 
entitled  to  reimbursement  of  his  attorney's  fees  for  the  attorney's  presence 
at  the  bankrupt's  general  examination,  on  the  theory  perhaps  that  all 
the  bankrupt  has  to  do  on  his  general  examination  is  to  testify  to  the 
truth  and  that  he  needs  no  attorney  to  help  him  do  that.  The  practice, 
however,  is  the  other  way;  and  attorney's  fees  for  attendance  at  the  bank- 
rupt's examination  are  customarily  allowed. ^^e 

§  2087.   Whether  Fees  Allowable  for  Petition  for  Discharge,  etc. 

— It  would  seem,  on  .reason,  perhaps,  that  no  attorney's  fees  should  be  al- 
lowed in  involuntary  cases  for  preparing  the  petition  for  discharge  nor  for 
defending  the  same,  if  it  be  attacked  by  creditors. ^2" 

Analogously  (voluntary  case),  In  re  Brundin,  7  A.  B.  R.  298  (D.  C.  Minn.): 
"It  will  be  observed  from  the  language  of  the  act  above  quoted  that  the  only 
allowance  of  attorney's  fees  is  as  part  of  'the  cost  of  administration.'  It  fol- 
lows that  services  of  an  attorney  not  connected  with  the  administration  of  the 
estate  are  not  to  be  paid  out  of  the  estate.  The  administration  of  the  estate 
includes  the  proceedings  from  the  petition  until  the  estate  is  reduced  to  money,' 
and  the  dividends  paid  and  the  estate  closed.  Then  the  administration  ends. 
In  involuntary  cases  it  will  be  observed  that  no  allowance  is  made  to  the  bank- 
rupt for  attorney's  services  in  resisting  the  petition,  but  only  while  performing 
the  duties  required  by  the  act.     *     *     * 

"The  discharge  of  the  bankrupt,  while  it  will  affect  his  personal  rights  and 
obligations,  and  the  rights  of  his  creditors,  does  not  in  any  way  affect  the  ad- 
ministration of  his  estate  in  the  court  of  bankruptcy.  It  can  neither  add  nor 
take  away  a  dollar  from  that  estate.  The  trustee,  who  administers  the  estate, 
and  the  referee,  under  whose  charge  and  direction  this  is  done,  have  nothing 
to  do  with  the  discharge  of  the  bankrupt.  The  bankrupt  may  apply  for  his 
discharge  at  the  end  of  one  month  after  the  adjudication,  and  before  the  ad- 
ministration has  passed  its  preliminar}^  stage,  or  postpone  that  matter  till  the 
lapse  of  nearly  a  year — perhaps  months  after  the  administratibn  is 
ended  and  the  estate  closed.  The  fact  that  the  act  requires  him  to  attend 
the  hearing  upon  his  application  for  discharge  is  a  regulation  concerning  the 
matter  of  discharge  alone,  which,  although  a  proceeding  in  bankruptcy,  is  for 
the  benefit  of  the  bankrupt  only,  and  has  nothing  to  do  with  the  administration 
of  the  estate. 

"If,  by  reason  of  the  opposition  of  some  creditor,  the  services  of  any  attorney 

136.  In  re  Stratemeyer,  14  A.  B.  R.  121  (D.  C.  Hawaii);  In  re  Mayer,  4  A.  B. 
R.  241,  101  Fed.  695  (D.  C.  Wis.);  In  re  ]\Jichel,  1  A.  B.  R.  665,  95  Fed.  803 
(D.  C.  Wis.);  In  re  Anderson,  4  A.  B.  R.  645,  103  Fed.  854  (D.  C.  S.  C). 

But  compare.  In  re  Kross,  3  A.  B.  R.  187,  96  Fed.  816  (D.  C.  N.  Y.) :  "Ordi- 
narily I  cannot  regard  attendance  by  counsel  for  the  bankrupt  at  all  the  various 
examinations  as  necessary.  The  restraints  on  discharge  being  confined  to  acts 
either  criminal  or  most  plainly  fraudulent  and  wrong,  the  honest  and  straight- 
forward debtor  has  rarely  need  of  'counsel,'  unless  falsely  attacked,  when  pro- 
fessional aid  may  become  proper  and  necessary,  and  should  then  be  compensated. 
There  is  often,  however,  too  much  interference  and  objection  by  the  bankrupt's 
attorney  in  the  ordinary  examination  in  behalf  of  creditors,  which  operates  in 
every  way  injuriously.     'Services'  of  this  kind  should,  of  course,  be  ignored." 

See  ante,  "Discovering  Assets,"  §§  1573,  1574. 

137.  In  re  Averill,  1  N.  B.  N.  544  (Ref.  Ohio,  affirmed  by  D.  C).  Compare, 
inferentially  contra.  In  re  Rosenthal  &  Lehman,  9  A.  B.  R.  628,  120  Fed.  848 
(D.  C.  Mo.).     Contra,  In  re  Hitchcock,  17  A.  B.  R.  664  (D.  C.  Hawaii). 


1292  REMINGTON  ON  BANKRUPTCY.  §  2087 

may  be  necessary  for  the  bankrupt,  that  is  his  individual  concern,  and  neither 
reason  nor  anything  in  the  act  suggests  that  the  estate  be  depleted  to  furnish 
him  counsel,  at  the.  cost  of  his  creditors.  Should  counsel  fees  be  allowed  for 
services  in  this  case,  it  must  be  for  the  reason  that  they  should  be  allowed 
in  every  case  where  employed,  and  would  lead  to  the  abuse  of  needless  employ- 
ment. They  would  also  have  to  be  paid  from  the  estate  as  well  where  the  bank- 
rupt has  committed  acts  which  will  prevent  his  discharge  as  in  the  cases  where 
discharge  is  granted." 

Inferentially,  In  re  Mayers,  4  A.  B.  R.  238,  1101  Fed.  695  (D.  C.  Wis.) :  "The 
test  for  compensation  out  of  the  estate  is  whether  the  service  is  rendered  in  the 
performance  of  the  bankrupt's  duty  in  aid  of  the  estate  and  its  administration, 
and  not  whether  the  bankrupt  stands  in  need  of  the  service  of  counsel  for  his 
personal  benefit  and  protection  in  any  of  the  proceedings.  No  sanction  appears 
in  any  of  the  provisions  for  an  allowance  in  the  last  mentioned  view,  and  its 
adoption  would  violate  the  general  consistency  of  the  act  for  securing  economy 
in  administration.  Indeed,  the  policy  of  compensating  counsel  assigned  by  the 
courts>  to  aid  needy  defendants  in  criminal  prosecutions  has  never  been 
adopted  by  Congress,  and  it  would  seem  anomalous  to  impose  the  burden  of 
such  defense  of  a  bankrupt  on  the  creditors.  The  opinion  recently  handed 
down  in  the  Circuit  Court  of  Appeals  for  this  circuit  (In  re  Curtis  [4  Am.  B. 
R.  17],  100  Fed.  784),  is  well  in  point,  both  for  a  general  rule  of  construction 
to  be  applied  to  the  act  in  reference  to  expenses  and  for  its  interpretation  of 
the  analogous  allowance  in  the  same  connection  of  an  attorney's  fee  to  the 
petitioning  creditors  in  involuntary  cases.  It  is  held  to  be  limited  strictly  'to 
the  service  rendered  in  procuring  the  adjudication.'  On  the  construction  indi- 
cated, the  services  rendered  in  preparing  the  schedules,  and  in  attendance  on 
the  examination  of  the  bankrupt  before  the  referee  pursuant  to  the  order,  are 
entitled  to  an  allowance.  All  other  claims  are  rejected,  including  that  for 
'retainer.'  " 

But  compare,  contra,  although  the  case  is  not  closely  reasoned  upon  this  par- 
ticular point.  In  re  Kross,  3  A.  B.  R.  187,  96  Fed.  816  (D.  C.  N.  Y.) :  "I  am  not 
prepared  to  say,  however,  that  services  as  counsel  in  aid  of  the  bankrupt  in 
litigations  over  his  discharge  are  to  be  wholly  excluded,  when  such  aid  has 
become  necessary  without  the  fault  or  misconduct  of  the  bankrupt  himself. 
Considering  that  all  attorneys  in  this  country  are  counselors  also,  and  that 
the  latter  term  is  used  in  §  60,  I  should  not  be  inclined  to  construe  the  words 
'attorney's  fee'  in  §  64  in  the  narrowest  and  strictest  sense,  so  as  to  exclude 
necessarily  such  services  by  counsel  as  were  reallj^  required.  But,  for  obvious 
reasons,  claims  on  this  ground  should  be  admitted  only  most  sparingly  and 
with  great  caution  and  they  should  be  confined  to  services  during  the  bank- 
ruptcy proceedings  itself,  excluding  previous  consultations  or  advice,  as  well 
as  all  unnecessary  attendance  as  'counsel'  in  the  course  of  the  proceedings." 
This  case  must  have  been  a  case  of  voluntary  bankruptcy,  bankrupt's  attorney's 
fees  in  which  are  allowable  "as  the  court  may  direct;"  for  certainly  in  involun- 
tary bankruptcies  the  words  of  the  statute  are  plain  enough  that  the  allowance 
must  be  refined  to  services  necessary  to  assist  the  bankrupt  to  perform  his 
statutory  duties — it  being  no  part  of  his  statutory  duties  to  file  his  petition  for 
discharge. 

It  would  seem  to  be  undoubtedly  improper  to  allow  attorney's  fees  for 
filing  or  defending  the  petition  for  discharge  in  involuntary  cases;  for 
it   is   not   one   of   the  bankrupt's   duties   to   file   such   petition   nor   to  de- 


8    2089  COSTS    AND   EXPENSES    OF   ADMINISTRATION.  1293 

fend  it.     The  law  simply  grants  him  the  privilege  of  a  discharge — it  is  not 
a  "duty."i38 

But,  perhaps  the  bankrupt  should  be  allowed  for  necessary  attorney's 
fees  while  in  attendance  at  the  hearing  upon  his  application  for  discharge, 
such  attendance  being  one  of  his  statutory  duties. ^-^^  What  services  would 
be  embraced  within  those  rendered  necessary  by  such  required  attendance 
does  not  seem  to  have  been  determined.  It  w^ould  be  strange,  indeed,  if 
creditors  should  have  to  pay  for  the  bankrupt's  attorney's  services  in  de- 
fending the  petition  for  discharge.  • 

§  2088.  No  Allowance  for  Bankrupt's  Admission  in  Writing  of  In- 
ability to  Pay  Debts,  etc.,  nor  for  Services  in  Aid  of  Adjudication; 
nor  in  Contests  over  Exemptions. — No  attorney's  fees  should  be  al- 
lowed for  services  pertaining  to  the  bankrupt's  admission  in  writing  of  his 
inability  to  pay  debts  ;^^*^  nor  for  services  pertaining  to  the  adjudication  ;^^^ 
nor  for  services  pertaining  to  the  trustee's  suits  to  set  side  conveyances 
made  by  the  bankrupt,  nor  pertaining  to  negotiations  for  compromises 
thereof;^"*-  nor  for  services  pertaining  to  an  order  of  sale  of  real  estate; 
nor  to  questions  of  the  bankrupt's  ownership  of  personal  property  ;^'*3 
nor  for  services  rendered  the  bankrupt  in  a  contest  over  his  exemptions. 

In  re  Castleberry,  16  A.  B.  R.  430,  143  Fed.  1021  (D.  C.  Ga.) :  "Legal  services 
to  a  bankrupt  in  having  his  exemptions  allowed  is  a  matter  between  the  bank- 
rupt and  his  attorneys." 

But  services  in  the  preparation  of  his  schedule  of  exempted  property  are 
to  be  allowed  for,  for  such  preparation  is  one  of  the  bankrupt's  duties. ^^^ 

§  2089.   Bankrupt's  Fee  Allowable  More  Discretionary  in  Volun-' 
tary  than  in  Involuntary  Cases. — The  fee  allowable  to  the  bankrupt's 
attorney    is    more    discretionary    in   voluntary   cases    tRan   in    involuntary 
cases. ^^^ 

In  purely  voluntary  cases  it  may  be  allowed  as  the  court  may  see  fit.^^^ 

In  re  Burrus,  3  A.  B.  R.  296,  97  Fed.  926  (D.  C.  Va.)  :  "The  only  provision  of 
the  Bankruptcy  Act  regulating  the  amount  to  be  allowed  and  paid  out  of  the  es- 
tate as  an  attorney's  fee  in  cases  of  voluntary  bankruptcy  is  found  in  §  64b,  which 

138.  Contra,  and  that  may  be  allowed  for  discharge  petition.  In  re  Strate- 
meyer,  14  A.  B.  R.  121  (D.  C.  Hawaii).  But  compare.  In  re  Kross,  3  A.  B.  R. 
187,  96  Fed.  819  (D.  C.  N.  Y.).  However,  it  is  evident  this  was  a  vohmtary 
bankruptcy,  not  an  involuntary  one. 

139.  In  re  Mayer,  4  A.  B.  R.  238.  101  Fed.  695  (D.  C.  Wis.);  In  re  Strate- 
meyer,  14  A.  B.  R.  121  (D.  C.  Hawaii). 

140.  In  re  Stratemeyer,  14  A.  B.  R.  120  (D.  C.  Hawaii). 

141.  In  re  Stratemeyer,  14  A.  B.  R.  120  (D.  C.   Hawaii). 

142.  In  re  Stratemeyer,  14  A.  B.  R.  120  (D.  C.  Hawaii).  , 

143.  In  re  Stratemeyer,  14  A.  B.  R.  120  (D.  C.  Hawaii). 

144.  See  ante,  §§  461,  477. 

145.  Contra,  In  re  Beck,  1  A.  B.  R.  535,  92  Fed.  889  (D.  C.  Iowa);  contra.  In 
re  Stotts,  1  A.  B.  R.  641,  93  Fed.  438  (D.  C  Iowa). 

146.  Bankr.  Act,  §  64  (b)  (3);  In  re  Smith,  5  A.  B.  R.  562,  108  Fed.  39  (D.  C. 
N.  Car.). 


1294  ri;mington  on  bankruptcy.  §  2090 

provides  for  one  'reasonable  fee,'  irrespective  of  the  number  of  attorneys  employed. 
This  section  evidently  intended  to  and  does  vest  solely  in  the  sound  discretion 
of  the  court  the  amount  to  be  allowed  under  the  circumstances  of  each  case." 
In  re  Morris,  11  A.  B.  R.  145,  125  Fed.  841  (D.  C  N.  Car.):  "This  court  has, 
by  rule,  fixed  the  maximum  fee  in  voluntary  proceedings,  where  there  is  no 
unforseen  litigation  or  extraordinary  services,  at  $50." 

§  2090.  Test  in  Voluntary  Cases,  in  General. — The  test,  in  voluntary 
cases,  in  general  is  that  the  services  be  rendered  in  assisting  the  bankrupt 
to  perform  his  statutory  duties  and,  in  addition,  such  other  services  may 
be  allowed  for  as  are  beneficial  to  creditors,  rendered  before  any  receiver, 
trustee  or  marshal  is  in  charge.  Thus,  in  voluntary  cases,  the  bankrupt 
should  be  allowed  for  legal  services  rendered  to  him  while  he  is  in  the 
performance  of  his  statutory  duties,  as  in  involuntary  cases. 

In  re  Terrill,  4  A.  B.  R.  625,  103  Fed.  781  (D.  C.  Vt.) :  "This  is  a  voluntary 
case,  and  the  law  refers  to  what  services  are  actually  rendered  by  an  attorney 
for  the  bankrupt,  in  assisting  him  about  what  the  law  requires  him  to  do,  such 
as  preparing  the  petition  and  schedules." 

Attorney's  fees  are  allowable  for  preparing  the  voluntary  petition  for 
adjudication  and  schedules  and  for  attendance  in  procuring  adjudication. i'*" 

And  in  addition  thereto,  he  should  be  allowed  for  such  other  services 
as  are  beneficial  to  the  estate,  rendered  before  any  receiver  or  trustee  or 
other  officer  is  placed  in  charge  of  the  estate. 

In  re  Kross,  3  A.  B.  R.  190,  96  Fed.  819  (D.  C.  N.  Y.) :  "I  have  already  stated 
the  general  nature  of  the  services  which  I  think  are  designed  to  be  covered  by  the 
allowance.  In  voluntary  cases  they  are  such  as  are  indispensable  to  enable  the  bank- 
rupt properly  to  bring  his  case  into  bankruptcy,  surrender  his  estate  and  perform 
his  duties  for  the  benefit  of  creditors  on  the  one  hand,  and  to  receive  his  discharge, 
if  entitled  to  it,  on  the  other.  Section  64  speaks  only  of  an  attorney's  fee; 
while  §  60,  subd.  d,  uses  the  word  'counselor'  also.  The  services  contemplated 
by  both  are  doubtless  for  the  most  part  those  of  an  attorney  only,  as  dis- 
tinguished from  the  services  of  'counsel.'  They  include  the  preparation  of  the 
necessary  legal  papers,  procuring  the  adjudication  and  reference,  bringing  the 
debtor  before  the  referee  for  such  subsequent  proceedings  as  may  be  required, 
making  in  due  time  the  application  for  discharge,  attendance  before  the  judge 
and  referee,  as  may  be  needful,  and  throughout  the  proceedings  keeping  himself 
informed  of  their  progress  and  giving  such  attention  to  the  essential  steps 
in  the  bankrupt's  behalf  as  will  secure  to  him  a  regular  and  valid  discharge. 
These  are  the  ordinary  attorney's  duties." 

Probably,  though  the  cases  are  not  in  harmony  on  the  point,  the  bank- 
rupt estate  ought  not  to  pay  the  expense,  in  a  voluntary  case,  of  the  bank- 
rupt's getting  his  discharge,  inasmuch  as  the  estate  is  in  no  wise  benefited 
thereby  and  as  the  bankrupt,  at  the  time  of  applying  for  discharge,  has 
presumably  gathered  enough  of  a  new  estate  to  enable  him  to  defray  the 
expense  of  procuring  his  discharge. ^^^ 

147.  In  re  Hitchcock,  17  A.  B.  R.  664  (D.  C.  Hawaii).  Contra,  In  re  Beck, 
1  A.  B.  R.  535,  92  Fed.  889  (D.  C.  Iowa). 

148.  In  re  Averill,  1  N.  B.  N.  544  (Ref.  Ohio,  affirmed  by  D.  C.) ;  In  re 
Brundin,  7  A.  B.  R.  296,  112  Fed.  306  (D.  C.  Minn.).  But  compare,  contra.  In  re 
Kross,  3  A.  B.  R.  187,  96  Fed.  819  (D.  C.  X.  Y.). 


§    2093  COSTS    AND    EXPENSES    OF    ADMINISTRATION.  1295 

And  services  really  rendered  in  the  interests  of  a  preferred  creditor, 
especially  those  rendered  after  the  bankrupt's  death,  should  not  be 
charged  against  the  estate  as  part  of  the  bankrupt's  allowance  for  attorney's 
fees.1^9 

§  2091.  Preliminary  Consultations  May  Be  Charged  for,  in  Vol- 
untary Cases. — Consultations  in  reference  to  the  filing  of  the  bankruptcy 
petition  and  the  preparation  of  the  schedules  may  be  charged  for,  in  vol- 
untary cases. 1^^ 

In  re  Kross,  3  A.  B.  R.  187,  96  Fed.  819  (D.  C.  N.  Y.) :  "In  voluntary  cases, 
the  same  schedules  are  required  to  accompany  the  petition,  and  ordinarily 
bankrupts  are  unable  to  prepare  such  papers  properly,  or  to  comply  with  the 
rules  and  orders  pertaining  thereto,  except  by  the  aid  of  a  professional  attorney. 
This  clause  of  paragraph  3,  therefore,  indicates  the  general  nature  of  the  serv- 
ices for  which  a  fee  is  designated  to  be  allowed,  viz.,  those  professional  services 
which  presumably  are  necessary  and  indispensable  to  the  bankrupt  to  enable 
him  to  perform  the  duties  required  of  him  by  the  act  for  the  benefit  of  creditors 
on  the  one  hand,  or  to  secure  his  own  correlative  right  to  discharge  on  the 
other." 

§  2092.  Application  for  Receiver  or  Other  Provisional  Remedy 
Allowed  for. — Applications  for  the  appointment  of  a  receiver,  or  injiui- 
tion,  and  other  legal  steps  necessary  to  be  taken  before  a  trustee  is  elected 
by  creditors,  in  caring  for  the  estate,  may  be  allowed  for.^^^ 

However,  one  case  holds  that  the  attorney's  fees  should  not  as  a  rule 
be  allowed  for  mere  consultations — that  they  are  to  be  allowed  for  services 
as  attorney  rather  than  as  counsel,  although  in  some  instances  counsel 
fees  might  be  allowed. ^^^  And  another  case  holds  it  discretionary  with 
the  court  in  vohmtary  cases  to  refuse  to  allow  bankrupt's  attorney's  fees 
to  be  paid  out  of  fraudulently  conveyed  property  that  has  been  recovered 
by  the  trustee. ^-^-^ 

§  2093.  Only  One  Fee  to  Be  Allowed. — Only  one  reasonable  attor- 
ney's fee  shall  be  allowed  ;^-^^  even  though  it  be  in  a  partnership  case  and 
each  partner  have  his  own  attorney. ^^-^ 

149.  In  re  Terrill,  4  A.  B.  R.  625,  103  Fed.  781  (D.  C.  Vt.).  But  compare, 
In  re  Beck,  1  A.  B.  R.  535,  92  Fed.  889  (D.  C.  Iowa),  in  which  the  court  held 
the  bankrupt,  in  voluntary,  cases,  to  be  entitled  to  attorney's  fees  only  for  pre- 
serving the  estate  before  the  appointment  of  trustee. 

150.  In  re  Averill,  1  N.  B.  News  544  (Ref.  Ohio,  affirmed  by  D.  C.) ;  contra, 
In  re  Beck,  1  A.  B.  R.  535,  92  Fed.  889  (D.  C.  Iowa);  contra,  In  re  Stotts,  1  A. 
B.  R.  641,  93  Fed.  438  (D.  C.  Iowa). 

151.  In  re  Burrus,  3  A.  B.  R.  297,  97  Fed.  926  (D.  C  Va.). 

152.  In  re  Kross,  3  A.  B.  R.  187,  96  Fed.  816  (D.  C.  N.  Y.),  quoted  ante,  § 
2087. 

153.  In  re  O'Connell,  3  A.  B.  R.  422,  98  Fed.  Rep.  83  (D.  C.  N.  Y.). 

154.  Bankr.  Act,  §  64  (b).  In  re  Eschwege  &  Cohn,  8  A.  B.  R.  282  (Ref. 
N.  Y.). 

155.  Tn  re  Eschwege  &  Cohn,  8  A.  B.  R.  282  (Ref.  N.  Y.). 


1296  REMIXGTOX  OX  BANKRUPTCY.  §  2097 

§  2094.  Bankrupt  Paying  Attorney  in  Advance. — ^The  bankrupt, 
both  in  voluntary  and  involuntary  bankruptcies,  may  pay  his  attorney  in 
advance  of  the  filing  of  the  bankruptcy  petition,  for  services  rendered  or 
to  be  rendered  in  the  proposed  bankruptcy.  ^^*^ 

§  2095.  All  Payments  tor  Attorney  in  Contemplation  of  Bank- 
ruptcy Governed  by  §  60  (d). — All  payments  made  before  bankruptcy 
to  the  attorney  in  contemplation  of  the  ii>stitution  of  bankruptcy  pro- 
ceedings are  to  be  governed  by  the  provisions  of  §  60  (d).^^^ 

§  2096.  Whether  Different  Principles  Govern  from  Those  Where 
Allowed  Out  of  Estate. — Whether  the  prepayment,  or  security,  of  at- 
torney's fees  previous  to  bankruptcy  is  to  be  regulated  by  different  prin- 
ciples from  those  governing  the  allowance  of  the  bankrupt's  attorney's 
fees  out  of  the  estate  is  not  clear.  Some  cases  seem  to  hold  that  they 
are  not  on  the  same  basis  and  that  such  prepayments  are  governed  by 
§  60  (d)  and  are  not  limited  by  §  64  (b)  ;^^^  while  others  hold  that  both 
are  virtually  on  the  same  basis. ^^^  •  • 

In  re  Kross,  3  A.  B.  R.  187,  96  Fed.  816  (D.  C.  N.  Y.) :  "The  charges  to  be 
'approved'  are,  I  cannot  doubt,  for  the  same  services  which  the  'fee'  is  de- 
signed to  be  allowed  for  under  §  64  (b)  par.  3." 

§  2097.  Under  §  60  (d)  Must  Be  for  Benefit  of  Estate  or  in 
Furtherance  of  Administration. — The  kind  of  legal  services  to  be  per- 
formed for  which  an  insolvent  debtor  contemplating  bankruptcy  proceed- 
ings may  contract  and  make  payment  in  money  or  by  a  transfer  of  prop- 
erty under  the  provisions  of  §  60.  (d)  are  such  services  as  are  rendered 
in  aid  of  the  purpose  sought  to  be  accomplished  by  the  act  to  conserve  and 
benefit  the  estate  of  the  bankrupt,  and  thus  enure  to  the  benefit  of  cred- 
itors, or  are  such  legal  services  as  are  contemplated  by  the  act  in  bringing 
the  bankrupt  estate  before  the  court,  its  subsequent  administration  and 
distribution  to  creditors,  and  the  like.^^^ 


156.  Impliedly,  Bankr.  Act,  §  60  (d).     Impliedly,  Schedule  B  (4). 

157.  Impliedly,  In  re  Habegger,  15  A.  B.  R.  198,  139  Fed.  623  (C.  C.  A. 
Minn.).  , 

158.  Furth  V.  Stahl,  10  A.  B.  R.  442,  205  Pa.  439,  rejected  in  In  re  Habegger, 
15  A.  B.  R.  208,  139  Fed.  623  (C.  C.  A.  Minn.);  Pratt  v.  Bothe,  12  A.  B.  R.  529. 
130  Fed.  670  (C.  C.  A.  Mich.). 

159.  Obiter,  In  re  Kross,  3  A.  B.  R.  187,  96  Fed.  816  (D.  C.  N.  Y.);  In  re 
Lewin,  4  A.  B.  R.  634,  103  Fed.  852  (D.  C.  Vt.). 

160.  In  re  Kross,  3  A.  B.  R.  187,  96  Fed.  816  (D.  C.  N.  Y.);  In  re  Lewin,  4 
A.  B.  R.  634,  103  Fed.  852  (D.  C.  Vt.).  To  same  effect,  compare,  In  re  Smith, 
5  A.  B.  R.  559,  108  Fed.  39  (D.  C.  N.  Car.).  To  same  effect,  compare.  In  re 
Rosenthal  &  Lehman,  9  A.  B.  R.  626,  120  Fed.  848  (D.  C.  Mo.).  To  same  effect, 
Pratt  V.  Bothe,  12  A.  B.  R.  535,  130  Fed.  670  (C.  C.  A.  Mich.). 

Compare,  In  re  Corbett,  5  A.  B.  R.  224,  104  Fed.  872  (D.  C.  Wis.),  where  it  is 
inferable  that  payment  after  the  filing  of  the  petition  but  before  adjudication, 
or  rather  before  the  court  has  obtained  actual  custody  of  the  property  used  in 
the  payment,  might  have  been  held  v^lid  if  actually  made. 


§    2097  COSTS   AND   EXPENSES   OE   ADMINISTRATION.  1297 

In  re  Habeggfar,  15  A.  B.  R.  199,  139  Fed.  623  (C.  C.  A.  Minn.)  :  "Such  pay- 
ments or  transfers  to  an  attorney  by  one  contemplating  bankruptcy  as  tend  to 
conserve  the  estate  and  bring  it  before  the  bankruptcy  court  for  settlement,  or 
other  services  required  by  the  bankruptcy  act  to  be  performed  by  the  bankrupt, 
are  made  valid  as  a  preference  under  that  section,  to  the  extent  they  are  found 
upon'examination  to  be  reasonable  and  equitable;  such  claims  being  in  principle 
entitled  to  equitable  priority,  as  are  claims  for  services  performed  or  property 
furnished  in  the  preservation  and  betterment  of  an  estate  controlled  and  ad- 
ministered bj^  a  court  of  equity.  *  *  *  jf  J^,-^  insolvent  contemplating  bank- 
ruptcy transfers  his  property,  in  payment  of  future  legal  services  to  be 
performed,  not  beneficial  to  his  estate  and  which  do  not  inure  to  the  benefit  of 
his  creditors,  why  is  such  a  transfer  not  a  voidable  preference  or  a  fraudulent 
transfer  under  other  provisions  of  the  Act,  to  the  same  extent  as  are  other 
transfers  of  his  property  without  present  consideration?" 

Thus,  services  rendered  the  bankrupt  in  opposition  to  the  creditors' 
petition  are  not  within  §  60  (d).  Whether  the  fee  thus  permitted  to  be 
prepaid  to  the  bankrupt's  attorney  must  relate  only  to  services  to  be  ren- 
dered while  the  debtor  is  in  contemplation  of  bankruptcy  or  may  also 
relate  to  services  to  be  rendered  after  bankruptcy  proceedings  are  com- 
menced, is  not  clear. 

Pratt  T'.  Bothe,  12  A.  B.  R.  535,  130  Fed.  G70  (C.  C.  A.  Mich.,  criticised 
In  re  Habegger,  supra) :  "We  are  of  the  opinion  that  §  60  (d) :  relates 
to  services  to  be  renderd  while  the  debtor  is  'in  contemplation  of  bank- 
ruptcy,' and  not  to  services  to  be  rendered  after  bankruptcy  proceed- 
ings are  commenced.  *  *  *  fhe  language  of  the  paragraph  *  *  * 
includes  services  rendered  not  only  by  an  attorney,  but  also  those  rendered 
by  a  'solicitor  in  equity  or  a  proctor  in  admiralty.'  This  generalization 
seems  to  indicate  that  the  services  contemplated  were  such  as  might 
be  required  in  general  litigation  or  in  the  course  of  the  debtor's  business,  and 
one  cannot  help  greatly  doubting  whether  Congress  had  in  mind  the  purpose 
to  include  those  special  services  which  an  attorney  would  render  to  the  bank- 
rupt while  in  the  discharge  of  his  duties,  payment  for  which  was  provided  by 
another  section  of  the  act.  It  would  rather  seem  that  Congress,  engaged,  as 
many  signs  indicate,  in  guarding  the  assets  of  those  in  ccrntemplation  of  bank- 
ruptcy, to  the  end  that  they  might  be  brought  without  unnecessary  expendi- 
ture to  the  hands  of  the  trustee  for  distribution  to  creditors,  while  it  would 
not  deny  to  the  debtor  the  right  to  employ  and  pay  for  legal  assistance  in  his 
affairs  during  that  critical  period,  yet  proposed  a  restraint  upon  that  privilege 
by  requiring  that  such  payment  should  be  reasonable  in  amount — in  short, 
proposed  to  apply  to  the  incipient  stage  of  bankruptcy  the  provident  economy 
which  it  sought  to  apply  to  the  administration  of  the  bankrupt  estate.  It  may 
have  been  thought  that  there  was  the  same  reason  for  such  restraint  at  that 
stage  of  afifairs  as  subsequently.  And  it  is  to  be  observed  that  the  transaction 
would  not  become  the  subject  of  revision  unless  bankruptcy  ensued.  It  put 
attorneys,  solicitors  and  proctors  in  no  worse  position  than  it  did  some  classes 
of  those  having  business  with  the  debtor." 

Obiter,  In  re  Kross,  3  A.  B.  R.  187,  96  Fed.  816  (D.  C.  N.  Y.)  :  "The  charges 
to  be  'approved'  are,  I  cannot  doubt,  for  the  same  services  which  the  'fee'  is 
designed  to  be  allowed  for  under  §  64,  subd.  b,  par.  3.  Both  paragraphs  are 
to  be  construed  together,  so  that  it  becomes  immaterial  in  the  result  whether 
the  attorney  obtains  his  compensation  in  the  first  instance  from  the  bankrupt 

2  Rem  B-  7 


1298  REMINGTON  ON  BANKRUPTCY.  §  2101 

under  §  64,  subd.  b,  par  3.  Both  paragraphs  are  to  be  construed  together,  so 
that  it  becomes  immaterial  in  the  result  whether  the  attorney  obtains  his  com- 
pensation in  the  first  instance  from  the  bankrupt  under  §  60,  refunding  what, 
if  anything,  is  disallowed  by  the  court,  or  whether  he  waits  for  an  allowance 
by  the  court  under  §  64.  The  latter  is  evidently  the  more  convenient  and  de- 
sirable practice;  and  considering  that  prior  payment  for  an  attorney's  services 
to  the  bankrupt  is  expressly  allowed  by  §  60,  I  cannot  agree  to  any  such  con- 
struction of  the  act  as  would  deprive  the  attorney  of  a  proper  compensation 
for  a  necessary  service,  merely  because  he  did  not  take  it  out  of  the  estate  at 
his  own  estimate  in  advance."  Approved  in  In  re  Habegger,  supra;  disap- 
proved in  Pratt  v.  Bothe,  supra. 

§  2098.  Prepaid  Fee,  to  Be  "Reasonable"  and  Subject  to  Re- 
Examination. — The  fee  thus  prepaid  to  the  bankrupt's  attorney  must  be 
reasonable  in  amount,  and  the  prepayment  is  subject  to  re-examination  and 
disapproval  by  the  court.^^^ 

'§  2099.  Summary  Jurisdiction  over  Attorney  to  Require  Repay- 
ment of  Excess. — The  court  has  jurisdiction  over  the  attorney  to  require 
repayment  by  him.  Such  jurisdiction  may  be  exercised  in  the  bank- 
ruptcy proceedings  themselves ;  and  its  exercise  is  not  violative  of  the 
rules  regarding  the  forum  for  suits  against  adverse  claimants ;  more- 
over, it  is  provided  for  by  a  special  clause  of  the  Bankrupt  Act  itself.^^^ 
Such  re-examination  should  be  had,  however,  only  on  due  notice  to  the 
attorney  concerned. ^^^ 

§  2100.  Prepayment  before  Filing  Petition,  or  at  Any  Time  be- 
fore Adjudication.^ — The  bankrupt  may  make  such  payment  before  the 
filing  of  the  petition;  or,  at  any  time  before  adjudication,  unless  the  bank- 
rupt's property  be  sequestrated  by  a  receiver  or  marshal,  or  he  be  pro- 
hibited by  an  injunction  from  interfering  with  it.^^^ 

§  2101.  Prepayment  Effected  by  Giving  Security. — The  bankrupt 
may  give  security  uJDon  his  property  for  his  attorney's  fees  instead  of  mak- 
ing actual  prepayment  in  cash.i*'^ 

161.  In  re  Lewin,  4  A.  B.  R.  634,  103  Fed.  852  (D.  C.  Vt.);  In  re  Morris,  11 
A.  B.  R.  145,  125  Fed.  841  (D.  C.  N.  Car.);  obiter.  In  re  Kross,  3  A.  B.  R.  187, 
96  Fed.  816  (D.  C.  N.  Y.) ;  Pratt  v.  Bothe,  12  A.  B.  R.  535,  130  Fed.  670  (C.  C. 
A.  Mich.). 

Where  the  bankrupt  and  his  attorney  have  scheduled  the  unpaid  fee  of  the 
attorney  as  an  unsecured  claim  and  have  failed  to  schedule  it  amongst  priority 
claims,  it  will  be  denied  priority.  In  re  Morris,  11  A.  B.  R.  145,  125  Fed.  841 
(D.  C.  N.  Car.).  But  this  decision  is  not  to  be  regarded  as  sound.  Either  the 
fee  was  proper  or  it  was  not:  the  mistake  of  the  parties  ought  not  to  be  ir- 
remediable. 

162.  In  re  Lewin,  4  A.  B.  R.  634,  103  Fed.  852   (D.  C.  Vt.). 

163.  Impliedly,  In  re  Lewin,  4  A.  B.  R.  624,  103  Fed.  852  (D.  C.  Vt.). 

164.  Inferentially,  In  re  Corbett,  5  A.  B.  R.  224,  104  Fed.  872  (D.  C.  Wis.): 
In  tliis  case  the  transfer  was  held  not  to  have  passed  the  title  to  the  attorney 
because  there  was  no  change  of  possession.  The  property  was  not  taken  into 
possession  by  the  attorney  until  after  adjudication.  The  court  summarily  or- 
dered return. 

165.  Inferentially,  In  re  Corbett,  5  A.  B.  R.  224,  104  Fed.  872   (D.  C.  Wis.). 


§    2103  COSTS    AND    EXPENSES    OE   ADMINISTRATION.  1299 

SUBDIVISION    "d." 

Compensation   of   Referee,   Trustee  and   Receiver. 

§  2102.  Referee's  Compensation. — The  referee  receives  out  of  the 
estate,  1st,  twenty-five  cents  for  each  claim  filed  for  allowance,  and, 
2nd,  one  per  cent,  commission  on  all  disbursements  made  by  the  trustee 
to  creditors,*  if  the  estate  is  administered  before  the  referee,  or  one  half 
of  .one  per  cent,  on  the  amount  to  be  paid  to  creditors,  if  a  composition 
is  effected. i^^*^ 

§  2103.  Referee's  Commissions  Computed  on  Disbursements  to 
"Creditors." — The  commissions  of  the  referee  are  to  be  computed  only 
on  moneys  disbursed  to  creditors. i*^~ 

In  re  Iowa  Falls  Mfg.  Co.,  15  A.  B.  R.  384,  140  Fed.  527  (D.  C.  Iowa):  "The 
proceeds  of  the  mortgaged  property  arising  from  the  sale  thereof  by  the  sheriff 
should  be  excluded  from  the  amount  upon  which  the  referee  may  compute  his 
commissions,  and  the  amount  actually  disbursed  by  the  trustee  to  creditors  will 
form  the  basis  of  such  computation." 

In  re  Abbey  Press,  13  A.  B.  R.  15,  134  Fed.  51  (C.  C.  A.  N.  Y.) :  "The  referee's 
commission  is  upon  the  amount  paid  creditors,  not  necessarily  upon  the  amount 
collected,   which   might   be   largel}^   disbursed   in   making   the    collection." 

According  to  the  strict  words  of  the  statute,  commissions  of  the  referee 
are  not  to  be  computed  on  the  gross  amount  received  by  the  trustee,  nor 
on  all  the  money  paid  out  by  him,  but  only  upon  the  amounts  disbursed 
by  him  to  creditors,  although  there  seems  no  reason  for  making  a  different 
rule  for  the  referee  from  that  governing  the  trustee,  whose  commissions 
are  computed  on  the  gross  disbursements,  whether  made  to  creditors  or 
others.     There  is  some  force  in  the  contention,  moreover,  that  the  word 

166.  Bankr.  Act,  §  40  (a) :  "Referees  shall  receive  as  full  compensation  for 
their  services,  payable  after  they  are  rendered,  a  fee  of  fifteen  dollars  deposited 
with  the  clerk  at  the  time  the  petition  is  filed  in  each  case,  except  when  a  fee 
is  not  required  from  a  voluntary  bankrupt,  and  twenty-five  cents  for  every 
proof  of  claim  filed  for  allowance,  to  be  paid  from  the  estate,  if  any,  as  a  part 
of  the  cost  of  administration,  and  from  estates  which  have  been,  administered 
before  them  one  per  centum  commissions  on  all  moneys  disbursed  to  creditors 
by  the  trustee,  or  one-half  of  one  per  centum  on  the  amount  to  be  paid  to  cred- 
itors upon  the  confirmation  of  a   composition." 

167.  Commissions  Only  on  "Dividends"  before  Amendment  of  1903. — Before 
the  Amendment  of  1903,  his  commissions  were  computed  onlj^  on  "dividends" 
paid  to  creditors.  In  re  Utt,  5  A.  B.  R.  383.  105  Fed.  754  (C.  C.  A.  Ills.);  In  re 
Hinckel  Brewing  Co.,  10  A.  B.  R.  692,  124  Fed.  702  (D.  C.  N.  Y.);  In  re  Gold- 
ville  Mfg.  Co.,  10  A.  B.  R.  552,  123  Fed.  579  (D.  C.  S.  C.) ;  In  re  Mammoth  Pine 
Lumber  Co.,  8  A.  B.  R.  651,  116  Fed.  731  (D.  C.  Ark.);  In  re  Ft.  Wayne  Elec- 
tric Corp.,  1  A.  B.  R.  707,  94  Fed.  109  (D.  C.  Ind.);  In  re  Fielding,  3  A.  B.  R. 
135,  96  Fed.  800  (D.  C.  Mo.);  In  re  Barber,  3  A.  B.  R.  306,  97  Fed.  547  (D.  C. 
Minn.);  In  re  Mulhauser  Co.,  9  A.  B.  R.  80  (Ref.  Ohio);  In  re  Sabine,  1  A.  B. 
R.  322  (Ref.  N.  Y.);  In  re  Coffin,  2  A.  B.  R.  344  (Ref.  Tex.);  In  re  Gerson,  2 
A.  B.  R.  352  (Ref.  Pa.).  Compare,  In  re  Gardner,  4  A.  B.  R.  420  (Ref.  Va.); 
compare,  In  re  Anders  Push  Button  Tel.  Co.,  13  A.  B.  R.  643,  136  Fed.  995  (D.  C. 
N.  Y.). 


1300  REMINGTON  ON  BANKRUPTCY.  §  2106 

•'creditors,"  as  used  in  §  40,  is  the  correlative  of  "debts,"  as  used  in 
§  64  (b),  referring  to  costs  of  administration  as  "debts"  of  the  estate. ^^^ 

Since  the  amendment  of  1903  to  §§  40  and  48,  a  referee  is  entitled  to 
commissions  on  all  sums,  which,  but  for  outside  agreement,  would  be 
paid  through  the  trustee. ^'^^ 

* 

§  2104.    Thus,   Commissions  on  Disbursements  to  Priority  and 

Secured  Creditors. — Thus,  commissions  are  to  be  computed  on  taxes, 

en  the  priority  wages  of  workmen,  clerks  and  servants,  and  in  short  upon 

all  amounts  paid  to  all  kinds  of  creditors, ^■^'^*  including  secured  creditors. ^'''^ 

♦  §   2105.    Property   Sold   Free    of   Liens   When   Lienholder   Pur- 

chaser.— The  referee  is  entitled  to  commissions  upon  the  full  amount  of 
the  purchase  price  disbursed  to  creditors,  even  when  a  lienholding  creditor 
is  the  purchaser  and  applies  his  lien  on  the  purchase  price,  such  method 
being  considered  a  "disbursement"  to  a  "creditor"  notwithstanding  the 
actual  money  does  not  pass  through  the  trustee's  hands. ^'^^ 

§  2106.  In  Composition  Cases  Referee  to  Receive  One-Half  of 
One  per  Cent.-^In  cases  of  composition,  where  the  estate  is  taken  away 
from  the  trustee  and  given  back  to  the  bankrupt  on  his  paying  an  agreed 

168.  Compare,  Gray  v.  Mercantile  Co.,  14  A.  B.  R.  784,  138  Fed.  344  (C.  C.  A. 
N.  Dak.):  "Counsel  have  proceeded  on  the  assumption  that  a  claim  which 
represents  expenses  or  costs  of  adhiinistration  is  a  'debt  or  claim'  within  the 
meaning  of  the  provision  before  quoted  granting  and  restricting  the  right  of 
appeal.  The  assumption  appears  to  be  sustained  by  the  Bankruptcy  Act,  nota- 
bly by  §  64b;  but,  if  it  were  not,  that  would  be  another  reason  why  there 
would  be  no  right  of  appeal  from  the  allowance  or  rejection  of  any  of  the 
claims  other  than  that  of  Carroll,  which  is  not  of  that  character." 

Compare,  inferentially.  In  re  Curtis,  4  A.  B.  R.  17,  100  Fed.  784  (C.  C.  A.  Ills.). 

169.  In  re  Sanford  Furn.  Mfg.  Co.,  11  A.  B.  R.  414,  126  Fed.  888  (D.  C.  N. 
Car.).  But  see  Anders  Push  Button  Tel.  Co.,  13  A.  B.  R.  643,  136  Fed.  995  (D. 
C.  N.  Y.).  And  see.  In  re  Iowa  Falls  M'f'g  Co.,  15  A.  B.  R.  384,  140  Fed.  527  (D. 
C.  Iowa). 

"Disbursements." — As  to  meaning  of  word  "disbursements,"  see  In  re  Cam- 
bridge, 14  A.  B.  R.  168,  136  Fed.  983  (D.  C.  Mass.). 

170.  In  re  Cramond,  17  A.  B.  R.  30  (D.  C.  N.  Y.);  In  re  Coffin,  2  A.  B.  R. 
344  (Ref.  Tex.);  In  re  Gerson,  2  A.  B.  R.  352  (Ref.  N.  Y.);  In  re  Force,  4  A.  B. 
R.  114,  118  (Ref.  Mass.);  obiter,  In  re  Allison  Lumber  Co.,  14  A.  B.  R.  78,  137 
Fed.  643  (D.  C.  Ga.);  contra,  In  re  Anders  Push  Button  Telephone  Co.,  13  A.  B. 
R.  643,  136  Fed.  995   (D.  C.  N.  Y.). 

171.  In  re  Cramond,  17  A.  B.  R.  22  (D.  C.  N.  Y.) :  Mechanics  and  material- 
men holding  liens.  Obiter,  In  re  Erie  Lumber  Co.,  17  A.  B.  R.  701,  150  Fed. 
817  (D.  C.  Ga.). 

However,  it  must  not  be  forgotten,  in  cases  of  sales  of  property  free  from 
encumbrances  that  each  fund  is  to  bear  its  own  burden  of  the  costs,  its  own 
burden  of  the  commissions  and  expenses;  and  that  the  commissions  on  the 
amounts  paid  to  secured -creditors,  as  such,  are  to  come  out  of  the  particular 
fund  on  which  the  security  is  held. 

172.  In  re  Sanford  Furn.  Mfg.  Co.,  11  A.  B.  R.  414,  126  Fed.  888  (D.  C.  N.  C). 
But  see  In  re  Anders  Push  Button  Telephone  Co.,  13  A.  B.  R.  643,  136  Fed. 
995  (D.  C.  N.  Y.);  and  see,  In  re  Iowa  Falls  Mfg.  Co.,  15  A.  B.  R.  384,  140  Fed. 
527  (D.  C.  Iowa). 


§   2109  COSTS    AND    EXPENSES    OE    ADMINISTRATION.  1301 

compensation   therefor,    the    referee    and    the    trustee    alike    each    receive 
merely  one-half  of  one  per  cent,  commission. ^"^ 

§  2107.  "Twenty- Five  Cents  for  Each  Claim  Filed,"  Part  of 
"Compensation." — The  25  cents  for  each  claim  filed  is  part  of  the  ref- 
eree's compensation  and  is  not  to  be  considered  as  having  been  added  by 
the  amendment  of  1903  by  way  of  reimbursement  of  expenses.  Referees 
are  entitled  further  to  reimbursement  of  their  expenses.  The  25  cents  for 
each  claim  filed  is  to  be  paid  out  of  the  estate,  if  there  be  any  estate,  as 
part  of  the  cost  of  administration.  Owing  to  the  ambiguity  of  the  amend- 
ment to  the  statute  in  this  regard,  it  is  not  certain  whether  there  can  be 
any  charge  of  25  cents  for  each  claim  filed  where  there  is  no  estate.  It 
would  seem  that  where  there  is  no  estate,  there  could  be  no  such  compen- 
sation any  more  than  there  could  be  commissions. 

§  2108.  Trustee's  Compensation. — The  trustee  receives  out  of  the 
estate  a  commission  not  to  exceed  six  per  cent,  on  the  first  five  hundred 
dollars  disbursed  by  him ;  of  four  per  cent,  on  the  next  thousand  dollars ; 
two  per  cent,  on  the  amounts  thereafter  up  to  ten  thousand  dollars,  and 
one  per  cent,  on  the  balance  above  ten  thousand  dollars ;  but  if  a  compo- 
sition be  made  and  confirmed,  he  receives  merely  one-half  of  one  per  cent, 
on  amounts  paid  to  creditors.  The  trustee  also  receives  a  fee  of  50  cents 
out  of  the  estate  for  the  filing  of  a  certificate  with  the  county  recorder 
v/here  the  bankrupt  owns  real  estate  not  exempt. ^"^ 

§  2109.  Commissions  Computed  on  Disbursements  for  Expenses 
and  to    Creditors. — These   commissions   are  figured   upon  all   amounts 

173.  Bankr.  Act,  §  40  (a). 

174.  Bankr.  Act,  §  48  (a) :  "Trustees  shall  receive  for  their  services,  payable 
after  they  are  rendered,  a  fee  of  five  dollars  deposited  with  the  clerk  at  the 
time  the  petition  is  filed  in  each  case,  except  when  a  fee  is  not  required  from  a 
vokintary  bankrupt,  and  from  estates  which  they  have  administered  such  com- 
missions on  all  moneys  disbursed  by  them  as  may  be  allowed  by  the  courts,  not 
to  exceed  six  per  centum  the  first  five  hundred  dollars  or  less,  four  per  centum 
on  moneys  in  excess  of  five  hundred  dollars  and  less  than  fifteen  hundred  dol- 
lars, two  per  centum  on  moneys  in  excess  of  fifteen  hundred  dollars  and  less 
than  ten  thousand  dollars,  and  one  per  centum  on  moneys  in  excess  of  ten 
thousand  dollars.  And  in  case  of  the  confirmation  of  a  composition  after  the 
trustee  has  qualified  the  court  may  allow  him,  as  compensation,  not  to  exceed 
one-half  of  one  per  centum  of  the  amount  to  be  paid  the  creditors  on  such 
composition." 

(b)  "In  the  event  of  an  estate. beings  administered  by  three  trustees  instead  of 
one  trustee  or  by  successive  trustees,  the  court  shall  apportion  the  fees  and 
commissions  between  them  according  to  the  services  actually  rendered,  so  that 
there  shall  not  be  paid  to  trustees  for  the  administering  of  any  estate  a  greater 
amount  than  one  trustee  would  be  entitled  to." 

Bankr.  Act,  §  47  (c) :  "The  trustee  shall,  within  thirty  days  after  the  adjudica- 
tion, file  a  certified  copy  of  the  decree  of  adjudication  in  the  office  where  con- 
veyances of  real  estate  are  recorded  in  every  county  where  the  bankrupt  owns 
real  estate  not  exempt  from  execution,  and  pay  the  fee  for  such  filing,  and  he 
shall  receive  a  compensation  of  fifty  cents  for  each  copy  so  filed,  which,  together 
with  the  filing  fee,  shall  be  paid  out  of  the  estate  of  the  bankrupt  as  a  part  of 
the  cost  and  disbursements  of  the  proceedings." 


1302  REMINGTON  ON  BANKRUPTCY.  f^  2112 

disbursed  by  the  trustee,  whether  to  unsecured,  priority  or  secured  cred- 
itors, or  in  payment  of  expenses. ^'^^ 

In  re  Cramond,  17  A.  B.  R.  29  (D.  C.  N.  Y.) :  "The  language  covers,  and 
evidently  was  intended  to  include,  all  monej-^s  lawfully  disbursed  by  the  trustee, 
and  held  by  him  as  such,  whether  to  creditors,  secured  or  unsecured  or  having 
priority,  or  to  other  persons.  If  to  creditors  it  is  immaterial  whether  the 
amounts  lawfully  paid  them  from  the  funds  in  court  are  paid  as  dividends 
or  in  satisfaction  of  a  lien  or  liens  on  the  fund.  By  section  1  of  the  Act  'cred- 
itor shall  include  anyone  who  owns  a  demand  or  claim  provable  in  bankruptcy.' 
Secured  claims  are  provable  in  bankruptcy,  although  allowable  only  to  a 
certain  amount." 

§  2110.  Except  That  in  Composition  Cases  Computed  Only  on 
Disbursements  to  Creditors. — But  in  composition  cases,  the  trustee  is 
entitled  to  commissions  only  on  disbursements  to  creditors,  and  then  only 
at  the  rate  of  one-half  of  one  per  cent,  and  only  in  case  he  shall  have 
quahfied  as  trustee  before  confirmation  of  the  composition. ^"^ 

§  2111.  Whether  "Disbursement"  Includes  Proceeds  of  Property 
and  Trust  Funds  Surrendered  to  Adverse  Claimants,  and  Exempt 
Property  Sold  by  Trustee. — Perhaps  "disbursement"  may  include  the 
proceeds  of  the  sale  of  property  surrendered  to  adverse  claimants  in  lieu 
of  the  specific  property  itself  and  triist  funds  traced  into  the  trustee's 
hands  and  surrendered.^"''' 

And  perhaps  the  trustee  is  entitled  to  commissions  on  the  amount  set 
off  to  the  bankrupt  in  lieu  of  exemptions,  where  the  exempt  property  has 
been  sold  by  consent, ^'^^  although  it  is  very  doubtful. 

§  2112.  Entitled  Even' Where  Outside  Agreement  to  "Credit" 
Exists  and  Actual  Money  Does  Not  Pass. — And  the  trustee,  sim- 
ilarly to  the  referee  [ante,  §  2105],  is  entitled  to  commissions  upon 
all  amounts  that  would  be  disbursed  by  him  but  for  outside  agreement 
between  the  parties,  as,  for  instance,  where  a  lienholder  buys  in  the  prop- 
erty and  applies  his  debt  on  the  purchase  price,  etc.^'^ 

175.  Obiter,  In  re  Erie  Lumber  Co.,  17  A.  B.  R.  701,  150  Fed.  817  (D.  C.  Ga.). 

176.  Bankr.  Act.  §  48  (a). 

177.  Inferentially,  In  re  Cambridge,  14  A.  B.  R.  168,  136  Fed.  983  (D.  C. 
Mass.). 

178.  Inferentially.  In  re  Castleberry,  16  A.  B.  R.  431,  133  Fed.  821  (D.  C.  Ga.). 

179.  In  re  Sanford  Furn.  Mfg.  Co.,  11  A.  B.  R.  414,  126  Fed.  888  (D.  C.  N.  C). 
Compare,  contra,  before  .Amendment  of  1903,  In  re  Kaiser,  8  A.  B.  R.  108  (D. 

C.  Mont.),  where  the  rule  is  laid  down  that  he  is  not  entitled  to  commissions 
unless  it  actually  does  pass  through  his  hands.  This  case,  however,  was  de- 
cided before  the  amendment  of  1903.  In  this  instance  a  great  hardship  was 
suffered  by  the  trustee.  He  had  at  the  instance  of  creditors  instituted  su^t 
against  third  parties  for  the  recovery  of  certain  assets.  The  creditors  then  sold 
out  their  claims  to  a  third  party  and  the  case  was  dismissed.  The  purchase 
price  was  probably  the  result  of  the  trustee's  suit  and  it  seems  highly  unfair  that 
the  trustee  should  be  deprived  of  his  commissions  through  this  outside  settle- 
ment. 

Apparently  contra,  and  that  he  is  not  entitled  to  require  a  secured  creditor 


§    2115  COSTS    AND   EXPENSES    OF    ADMINISTRATION.  1303 

§  2113.  No  Absolute  Right  to  Full  Commissions:  Less  May  Be 
Allowed  or  All  Allowance  Withheld. — The  trustee  has  not  the  absohite 
right  to  the  full  commission :  the  court  may  allow  him  less.  Tlie  only  limi- 
tation prescribed  by  the  statute  is  a  maximum  limit :  the  court  shall  not 
allow  him  more  then  six  per  cent,  on  the  first  five  hundred  dollars,  nor 
more  than  four  per  cent,  on  the  next  thousand,  etc. 

The  court  may,  in  its  discretion,  witbhold  all  compensation  from  any 
trustee  who  has  been  removed  for  cause. ^^"^ 

By  this  provision  of  clause  (c)  it  should  not  be  inferred  that  the  court 
may  not  withhold  all  compensation  to  the  trustee  for  other  causes  than 
bis  removal.  It  is  not  a  place  for  the  application  of  the  rule  "Inclusio 
unius,  exclusio  alterius."  Circumstances  may  be  such  as  to  warrant  re- 
fusal of  compensation  altogether,  even  though  the  trustee  be  not  removed. 
The  discretion  not  to  grant  the  maximum  compensation  is  the  discretion  to 
refuse  compensation  altogether,  for  cause. 

§  2114.  Apportionment,  Where  Three  Trustees  or  Successive 
Trustees. — In  the  event  of  any  estate  being  administered  by  three  trustees 
instead  of  one  trustee,  or  by  successive  trustees,  the  court  will  apportion 
the  fees  and  commissions  between  them  according  to  the  services  actually 
rendered,  so  that  there  shall  not  be  paid  to  trustees  for  the  administering 
of  any  estate  a  greater  amount  than  one  trustee  would  be  entitled  to.^^^, 

§  2115.  Extra  Compensation  for  Conducting  Business. ^ — Trustees 
and  receivers  are  entitled  to  extra  compensation  for  continuing  the  business 
of  the  bankrupt. ^^- 

Before  the  amendment  of  1903  a  great  injustice  was  done  to  trustees 
who  were  required  to  continue  the  business.  It  was  repeatedly  held,  and 
entirely  in  accordance  with  the  law,  that  no  extra  compensation  could  be 
allowed  for  such  additional  services. ^'^•''' 

The  framers  of  the  Amendatory  Act  of  1903,  although  in  a  somewhat 
ineffective  way,  endeavored  to  remedy  this  defect.  They  provided  by 
amendment  to  clause  5  of  §  2  that  courts  of  bankruptcy  should  have  power 

whose  lien  was  created  more  than  four  months  prior  to  bankruptcy  and  has 
been  satisfied  in  full,  to  pay  such  commissions  on  the  amount  received  by  him, 
In  re  Anders  Push  Button  Telephone  Co.,  13  A.  B.  R.  643,  136  Fed.  995  (D.  C. 
N.  Y.).  With  regard  to  this  case  of  In  re  Anders,  two  things  are  to  be  ob- 
served, first,  that  the  secured  creditor  had  already  been  paid  his  claim  in  full 
and  this  was  an  effort  to  make  him  pay  commissions  afterwards.  While  this 
fact  would  not  alter  the  principles  involved  yet  it  would  nevertheless  tend  to 
confuse  the  issue,  and,  second,  that  it  appears  there  was  enough  in  the  fund 
thus  covered  by  the  lien  to  pay  the  costs,  without  touching  the  lien.  Manifestly, 
the  costs  should  first  be  paid,  then  the  liens  in  full,  in  the  order  of  priority. 

180.  Bankr.  Act,  §  48  (c). 

181.  Bankr.  Act,  §  48  (b). 

182.  Bankr.  Act,  §  2  (5). 

183.  In  re  Epstein,  6  A.  B.  R.  191,  109  Fed.  878  (D.  C.  Ark.).  Contra,  In  re 
Plummer,  3  A.  B.  R.  320  (Ref.  N.  Y.),  criticised  and  disapproved  in  In  re  Ep- 
stein, 6  A.  B.  R.  191,  109  Fed.  878  (D.  C.  Ark.). 


1304  REMINGTON  ON  BANKRUPTCY.  §  2116 

to  "authorize  the  business  of  bankrupts  to  be  conducted  for  limited  periods 
by  receivers,  the  marshal  or  trustees,  if  necessary  in  the  best  interests  of 
the  estate,  arid  allow  such  officers  additional  compensation  for  such  services, 
but  not  at  a  greater  rate  than  in  this  Act  is  allowed  trustees  for  similar 
services. "^^"* 

§  2116.  But  Not  to  Exceed  Rate  for  Trustee's  Ordinary  Services. — 

The  statutory  words  "for  similar  services"  is  ambiguous  and  indefinite. 
There  are  no  "similar  services"  for  which  compensation  is  prescribed  by 
the  act. 

The  additional  compensation  allowed  for  continuing  the  bankrupt's  busi- 
ness doubtless  must  not  exceed  the  same  rate  allowed  trustees  as  com- 
missions for  performing  their  other  usual  duties.  This  would  seem  to  be 
a  rational  construction  of  the  words  of  this  well-meant  amendment,  al- 
though the  broad  construction  is  also  possible  that  the  whole  matter  of 
compensation  for  continuing  the  business,  both  in  cases  of  receivers  and 
also  of  trustees,  is  entirely  without  limitation  as»  to  amount  and  is  in  the 
discretion  of  the  court. ^^^ 

It  has  been  held  though  the  construction  seems  unnecessarily  narrow, 
that  the  provision  for  additional  compensation  does  not  authorize  double 
commissions,  nor  any  additional  commissions  to  those  prescribed  in  §  48 
(a)  :  that  the  "additional  compensation"  for  conducting  the  business  as  a 
going  concern  is  realized  by  the  allowance  of  commissions  on  disburse- 
ments and  expenses  in  the  conducting  of  the  business  as  well  as  on  other 
disbursements. ^^^ 

Obiter,  In  re  Kirkpatrick,  Rec'r.,  17  A.  B.  R.  597,  148  Fed.  811  (C.  C.  A. 
Mich.) :  "It  is  urged  by  counsel  for  the  creditors  that  unless  the  amendment 
to  clause  5  of  §  2  is  construed  to  limit  the  compensation  which  can  be  allowed 
to  receivers  and  marshals,  it  has  no  effect  whatsoever.  We  do  not  say  that  it 
does  not  limit  the  compensation  to  those  officers  for  services  mentioned  in 
clause  5  of  §  2,  because  that  was  done  by  the  new  section  (72)  added  by  the  Act 
of  February  5,  1903.  The  Bankrupt  Act  while  providing  that  compensation 
for  the  other  services,  provided,  not  that  the  trustee  should  have  therefor  the 
rate  of  percentage  mentioned,  but  only' not  to  exceed  that.  If,  therefore,  in 
a  given  case,  the  court  should  allow  for  the  trustee's  other  services  a  less  rate 
than  the  maximum  prescribed  for  them,  it  could  under  this  amendment  allow 
a  further  sum  for  these  special  services  so  as  to  make  the  entire  compensation 
for  all  services  come  up  to  the  maximum.  The  purpose  to  keep  down  the  com- 
pensation of  the  trustee  to  the  maximum  prescribed  is  emphasized  by  the 
language  of  subsec.  72,  which  is:  'That  neither  the  referee  nor  the  trustee  shall 
in   any  form   or  guise   receive,   nor   shall   the   court   allow  them,    any   other   or 

184.  In  re  Dimm  &  Co.,  17  A.  B.  R.  119  (D.  C.  Pa.):  Daily  auction  sales  held 
to  be  within  the  amendment.  Obiter,  In  re  Kirkpatrick,  17  A.  B.  R.  594,  148 
Fed.  811  (C.  C.  A.  Mich.).  • 

185.  Compare,  In  re  Cambridge,  14  A.  B.  R.  198,  136  Fed.  983  (D.  C.  Mass.); 
■compare,  as  to  receiver's  compensation,  In  re  Richards,  11  A.  B.  R.  581,  127 
Fed.  772  (D.  C.  Mass.).  Also,  In  re  Sully,  13  A.  B.  R.  22,  133  Fed.  997  (D.  C. 
N.  Y.). 

186.  In  re  Hart  &  Co.,  17  A.  B.  R.  480  (D.  .C.  Hawaii). 


§    2117  COSTS   AND    EXPENSES    OE   ADMINISTRATION.  1305 

further  compensation  for  their  services  than  that  expressly  authorized  and 
prescribed  in  this  Act.'  As  is  seen,  this  relates  to  referees  and  trustee.  It 
is  not  improbable  that  Congress  intended  that  the  provisions  made  for  continu- 
ing the  business  of  the  bankrupt  should  not  be  allowed  to  enlarge  the  maximum 
prescribed  as  the  compensation  of  the  trustee,  and  have  considered  that  the 
trustee  should  find  in  the  enhancement  of  the  assets  a  larger  basis  on  which 
to  compute  his  compensation,  and  have  further  considered  that  it  was  desir- 
able not  to  encourage  the  continuance  of  the  business  unless  the  prospect  was 
such  as  to  make  it  probable  that  there  would  be  an  increase  of  assets  which  would 
sufficiently  reward  the  trustee  for  his  trouble." 

§  2117.  No  Additional  Compensation  Allowable  "in  Any  Form  or 
Guise." — The  statute  provides  that  neither  the  referee  nor  the  trustee  shall, 
in  any  form  or  guise,  receive,  nor  shall  the  court  allow  them,  any  other 
or  further  compensation  for  their  services  than  that  expressly  authorized 
s.nd  prescribed  in  the  act.^^' 

In  re  Halbert,  13  A.  B.  R.  399,  134  Fed.  236  (C.  C.  A.  N.  Y.) :  "This  language 
is  so  precise,  so  unambiguous  and  so  explicit  as  to  preclude  the  allowance  of 
additional  compensation  upon  any  theory  of  a  dual  personality." 

And  a  contract  to  give  extra  compensation  is  void  on  the  ground  of 
public  policy. 

DeVries  v.  Orem,  17  A.  B.  R.  879,  65  Atl.  430  (Md.  Ct.  App.) :  "So  it  appears 
from  a  review  of  the  acts  of  Congress  on  this  subject,  and  from  the  authorities 
construing  them,  that  it  would  manifestly  be  in  violation  of  the  spirit  and 
intent,  as  well  as  the  plain  language  of  the  acts,  to  allow  extra  compensation 

187.  See  ante.  §  2011;  "Policy  of  Act  That  of  Strictest  Economy  in  Expenses 
and  Costs  of  Administration." 

Bankr.  Act,  §  72:  "That  neither  the  referee  nor  the  trustee  shall  in  any  form 
or  guise  receive,  nor  shall  the  court  allow  them,  any  other  or  further  comperi- 
sation  for  their  services  than  that  expressly  authorized  and  prescribed  in  this 
act." 

DeVries  v.  Orem,  17  A.  B.  R.  876,  65  Atl.  430  (Md.  Ct.  App.);  In  re  Screws, 

17  A.  B.  R.  269,  147  Fed.  989  (D.  C.  Ga.) ;  In  re  Epstein,  6  A.  B.  R..  191,  10^  Fed. 
878  (D.  C.  Ark.). 

In  re  Pierce,  6  A.  B.  R.  747,  111  Fed.  516  (D.  C.  Colo.):  Referee  allowed  him- 
self per  diems  for  taking  testimony,  also  fees  for  subpoenas,  orders,  etc.:  Court 
disapproved. 

In  re  Carolina  Cooperage  Co.,  3  A.  B.  R.  154,  96  Fed.  950  (D.  C.  N.  C.) ;  In  re 
Troth,  4  A.  B.  R.  780  (D.  C.  Ohio);  In  re  Kaiser,  8  A.  B.  R.  108,  112  Fed.  955 
<D.  C.  Mont.);  In  re  Barker,  7  A.  B.  R.  132,  111  Fed.  501  (D.  C.  Iowa). 

But  compare  instance  of  clear  violation  of  this  provision.   In  re   Hart  &  Co., 

18  A.  B.  R.  137  (D.  C.  Hawaii),  in  which  the  referee  was  allowed  "extra"  com- 
pensation for  attending  to  the  trustee's  inquiries  in  conducting  the  business. 
Appointing  referee  as  special  master  to  hear  an  application  for  an  order  upon 
the  bankrupt  to  surrender  assets:  In  re  Herskovitz,  18  A.  B.  R.  247  (D.  C. 
N.  Y.). 

Clerk  cannot  charge  for  issuing  subpoenas:  In  re  Pierce,  6  A.  B.  R.  747,  111 
Fed.  516  (D.  C.  Colo.). 

But  the  clerk  is  entitled  to  reimbursement  for  his  expenses  necessarilj''  in- 
curred in  publishing  and  mailing  notices  where  he  performs  such  duty.  In  re 
Hardware  &  Furn.  Co.,  14  A.  B.  R.  186,  134  Fed.  997  (D.  C.  N.  Car.). 

And  may  charge  so  much  for  each  notice,  not  as  a  fee,  but  to  cover  such 
expense:  In  re  Hardware  &  Furn.  Co.,  14  A.  B.  R.  186,  134  Fed.  997  (D.  C. 
N.  Car.). 


1306  REMINGTON  ON  BANKRUPTCY.  §  2119 

to  a  trustee  for  his  services  in  bankruptcy  cases.  But,  independent  of  the 
acts  of  Congress  relating  to  bankrupt  estates,  we  are  of  the  opinion  that  con- 
tracts of  this  character  should  not  be  enforced,  and  are  void  as  against  public 
policy. 

"In  this  case  the  appellee  was  an  unsecured  creditor  of  the  estate  to  an  ex- 
tent of  $200,000,  and  owning  more  than  over  90  per  cent,  of  the  unsecured 
claims.  The  unsecured  indebtedness  amounted  to  about  the  sum  of  $217,000. 
The  dividend  she  was  to  receive  on  account  of  her  claims  was  pledged  to  the 
appellant  for  the  payment  of  a  commission  of  five  per  cent,  on  the  entire 
proceeds  of  the  sales  of  the  assets  of  the  estate.  In  other  words,  she  agreed 
to  pay  him  for  his  services  as  trustee  an  additional  sum  to  the  compensation 
he  would  receive  under  the  Bankrupt  Acts  that  would  equal  a  commission  of 
five  per  cent,  on  the  entire  sales.  And  this  commission  was  to  be  paid  on  the 
entire  proceeds  of  sales  including  the  mortgaged  property,  and  also  the  amount 
to  be  allowed  the  secured  creditors.  A  trustee  is  an  officer  of  the  court  and  is 
appointed  for  the  purpose  of  acting  for  the  interests  of  all  the  creditors,  without 
favor  or  partiality.  And  no  contract  between  him  and  a  creditor  should  be  up- 
held which  is  calculated  to  improperly  influence  his  action,  or  which  would 
tend  to  make  it  to  his  interest  to  favor  one  creditor  over  another.  The  prin- 
ciple is  well  settled  that  no  man  should  be  allowed  to  have  an  interest  in  con- 
flict with  or  against  his  duty.  He  certainly  should  not  be  allowed  by  his  own 
act  voluntarily  to  create  such  an  interest.  *  *  *  The  authorities  sustain 
the  proposition  in  cases  similar  to  the  one  at  bar,  that  contracts  of  this  char- 
acter are  illegal  and  against  sound  public  policy.  In  Cowing  v.  Altman,  1 
Thomp.  &  Cook  (N.  Y.)  494,  where  the  consideration  for  a  check  was  an  al- 
lowance or  promise  agreed  to  be  paid  the  payee  thereof  for  his  services  as 
an  assignee  in  bankruptcy  over  and  above  the  fees  and  commissions  allowed 
by  law,  and  in  express  violation  of  the  United  States  Bankrupt  Act,  it  was  held 
that  the  consideration  was  illegal  and  the  check  void." 

§  2118.  Receiver's  Compensation. — The  receiver,  of  course,  is  al- 
lowed compensation.  ^^^ 

§  2119.  Receiver's  Maximum  Allowance  Properly  Not  to  Exceed 
Trustee's. — The  receiver's  maximum  allowance  ought  properly  not  to 
exceed  that  of  the  trustee. 

There  is  no  express  provision  governing  the  amount  of  his  compensa- 
tion, but  it  is  held  in  some  cases,  and  properly,  that  the  maximum  allow- 
ance (at  any  rate  for  conducting  the  business)  is  not  to  exceed  that  of 
the  trustee.is9 

In  re  Cambridge,  14  A.  B.  R.  168,  136  Fed.  983  (D.  C.  Mass.):  "The  amend- 
ment is  intended  to  provide  that  receivers  shall  not  be  more  highly  paid  than 
trustees.  The  receiver's  maximum  allowance,  therefore,  is  that  stated  per- 
centage upon  disbursements  which  is  fixed  as  the  maximum  compensation  of 
the  trustee." 

188.  In  re  Scott,  3  A.  B.  R.  625,  99  Fed.  404  (D.  C.  N.  Car.);  In  re  Kirk- 
patrick,  Rec'r.,  17  A.  B.  R.  597,  148  Fed.  811  (C.  C  A.  Mich.).  Instance,  In  re 
Martin-Borgeson  Co.,  18  A.  B.  R.  178,  151  Fed.  780  (D.  C.  N.  Y.). 

189.  In  re  Richards,  11  A.  B.  R.  581,  127  Fed.  772  (D.  C.  Mass.). 


§   2119  COSTS    AND    EXPENSES    OF    ADMINISTRATION.  1307 

But,  it  is  held,  in  other  cases,  that  the  receiver's  compensation  is  to  be 
simply  whatever  is  found  in  the  court's  discretion  to  be  reasonable. ^^"^ 

In  re  Martin-Borgeson  Co.,  18  A.  B.  R.  178,  151  Fed.  780  (D.  C.  N.  Y.) : 
"From  an  examination  of  the  bankruptcy  law  the  question  of  compensation 
to  receivers  and  their  attorneys  seems  to  be  entirely  within  the  discretion  of  the 
court." 

At  any  rate,  it  is  left  to  the  discretion  of  the  court  for  services  other  than 
those  in  the  conducting  of  the  business. 

In  re  Kirkpatrick,  17  A.  B.  R.  595,  148  Fed.  811  (C.  C.  A.  Mich.)  :  "By  §  48 
a  maximum  compensation  to  the  trustee  was  provided  for.  But  the  exigencies 
of  some  cases  might  require  the  appointment  of  a  receiver  to  take  charge  of 
the  assets  until  in  due  course  a  trustee  should  be  appointed.  And  by  subsec. 
3  of  §  2  such  appointment  was  authorized.  By  subsec.  5  of  §  2  power  was  given 
to  authorize  the  business  of  the  bankrupt  to  be  conducted  for  limited  periods 
by  the  receiver,  trustee  or  marshal.  No  provision  was  made  for  the  compensa- 
tion of  receivers  for  performing  the  duties  required  by  subsec.  3  of  §  2.  That 
was  left  to  the  discretion  of  the  court,  as  in  ordinary  cases  in  courts  of  equity. 
But  by  the  Act  of  February  5,  1903,  subsec.  5,  of  §  2  was  amended  by  adding  these 
words,  'and  to  allow  such  officers  additional  compensation  for  such  services, 
but  not  at  a  greater  rate  than  in  this  Act  allowed  to  trustees  for  similar  serv- 
ices.' Evidently  this  provision  and  limitation  has  reference  to  services  rendered 
by  the  receiver,  marshal  or  trustee  in  conducting  the  business  of  the  bank- 
rupt, and  not  to  services  required  of  receivers  and  marshals  by  subsec.  3  of  § 
2  in  taking  charge  of  the  estate  pending  the  appointment  of  a  trustee;  and  i£ 
evidently  presupposes  that  some  compensation  is  allowable  for  services  ren- 
dered in  taking  charge  of  the  property." 

It  is  not  to  be  deducted  from  the  trustee's  compensation,  but  is  in  addition 
thereto. 

In  re  Richards,  11  A.  B.  R.  581,  127  Fed.  772  (D.  C.  Mass.):  "I  think,  there- 
fore, that  the  court  is  permitted  to  allow  as  maximum  compensation  to 
receivers  who  have  carried  on  the  business,  the  maximum  compensation  allowed 
to  trustees  by  §  48;  this  receivers'  allowance  not  necessarily  to  be  deducted 
from  the  trustees'  maximum,  but  in  some  cases  reckoned  in  addition  to  the 
latter.  Referees  will  understand  that  this  is  the  maximum,  not  the  minimum 
or  the  normal,  compensation  of  receivers.  Sometimes  the  receiver's  duties  are 
merely  formal  and  so  his  compensation  should  be  small.  Sometimes  he  has 
so  far  settled  the  bankrupt's  estate  that  the  trustee's  duties  are  little  more  than 
formal,  and  so  the  trustee's  compensation  should  be  small.  In  many  cases  the 
rule  hitherto  adopted  by  the  referee  may  well  be  proper,  but  I  do  not  think  it 
is  absolutely  binding  in  all  cases.  Its  universal  adoption  would  so  limit  the 
compensation  of  receivers  as  to  make  a  suitable  appointment  difficult  in  some 
cases.  An  efficient  administration  of  the  Bankrupt  Act  calls  for  a  reasonable 
liberality  in  this  matter.  The  opinion  just  expressed  applies  only  to  receivers 
who  have  carried  on  the  business.  The  compensation  allowable  to  other  re- 
ceivers is  not  here  in  question." 

While  it  is  true  that  the  strict  words  of  the  statute  do  not  limit  the  com- 
pensation of  the  receiver  to  that  allowable  to  the  trustee,  yet,  as  a  rule  for 

190.  In  re  Scott.  3  A.  B.  R.  365,  99  Fed.  404  (D.  C.  X.  Car.)  ;  inferentially.  In 
re  Sully,  13  A.  B.  R.  22,  142  Fed.  895  (D.  C.  N.  Y.,  affirming  13  A.  B.  R.  783). 


1308  REMINGTON  ON  BANKRUPTCY.  §  2123 

the  exercise  of  discretion,  such  Hmit  should  not  be  exceeded.  The  duties 
of  the  receiver  in  their  nature  are  no  more  arduous  nor  extensive  than  those 
which  a  trustee  might  be  called  upon  to  perform,  and  for  which,  when 
performed  by  a  trustee.  Congress  has  limited  the  compensation.  Indeed, 
as  a  rule,  the  receiver's  duties  are  far  less  exacting  and  usually  cover 
a  much  less  period  of  time,  the  statute  expressly  prohibiting  long-continued 
conducting  of  business  by  prescribing  that  such  conducting  of  the  business 
shall  be  only  "for  limited  periods."  The  receiver  in  bankruptcy  is  a  mere 
custodian,  without  title  to  assets  and  without  power  to  sue  therefor,  with- 
out right  to  object  to  claims  of  creditors;  also  without  power  to  distribute; 
while,  on  the  other  hand,  the  trustee  is  an  owner,  with  full  and  complete 
power  and  duty  to  sue  for,  collect  and  sell  assets  and  distribute  the  proceeds. 
Congress  twice  \:onsidered  the  trustee's  compensation,  once  in  1898  when 
the  original  act  was  passed ;  again  in  1903  when  the  amendment  was  under 
discussion.  If  Congress  has  thus  emphatically  set  the  limits  of  the  com- 
pensation of  the  more  important  officer,  it  would  ill  become  the  court  to 
exceed  the  maximum  for  the  lesser  officer.  To  do  so  has  the  appearance 
of  the  judiciary  attempting  to  correct  the  legislature  rather  than  endeavor- 
ing to  carry  out  the  latter's  will. 

§  2120.  Appeal  and  Review  of  Expenses,  and  Costs  of  Administra- 
tion.— The  question  of  the  appeal  and  review  of  costs  of  administration 
IS  taken  up  in  detail,  later,  under  the  general  subject  of  Appeal  and 
Error.191 

SUBDIVISION    "E." 

Fees  of  Appraisers,  Witnesses  and  jNIarshal. 

§  2121.  Appraisers'  Fees. — Appraisers  may  be  allowed  compensation 
out  of  the  estate.  Their  compensation  must  be  reasonable,  and,  in  its  al- 
lowance, the  manifest  spirit  of  economy  in  which  the  Bankrupt  Act  was 
framed  must  be  observed.  Thus,  minute  calculations  as  to  the  value  of 
each  article  in  detail  is  not  required ;  and  time  thus  spent  by  appraisers 
may  not  be  liberally  compensated  for.^^^ 

§  2122.  Witness  Fees  and  Mileage. — Witness  fees  and  mileage  are 
allowable  out  of  the  estate  as  part  of  the  costs  of  administration. ^^^ 

§  2123.  Bankrupt  Not  Entitled  to  Witness  Fees. — The  bankrupt  is 
not  entitled  to  witness  fees.  His  rights  in  this  regard  being  provided  for 
by  §  7  (a)  giving  him  reimbursement  for  certain  expenses,  it  will  be  pre- 

191.  See  post,  §  2839,  et  seq. 

192.  In  re  Gordon  Supply  &  Mfg.  Co.,  13  A.  B.  R.  352,  133  Fed.  798  (D.  C. 
Pa.). 

193.  As  to  witness  fees  allowed  as  costs  recoverable  by  alleged  bankrupt  upon 
dismissal  of  petition  against  him  where  property  was  seized,  see,  Hoffschlaeger 
Co.  V.  Young  Nap,  12  A.  B.  R.  526  (D.  C.  Hawaii). 


§    2128  COSTS    AND   EXPENSES    OE   ADMINISTRATION.  1309 

sumed  that  this  provision  is  exclusive  of  compensation  or  other  reiniburse- 
irient.193 

§  2124.  But  to  Reimbursement  of  Actual  Expenses  Where  At- 
tending.— The  bankrupt,  however,  is  entitled  to  reimbursement  out  of  the 
estate  for  his  actual  expenses  in  attending  the  sittings  of  the  bankruptcy 
court,  when  ordered  to  do  so,  at  a  place  other  than  the  city,  town  or  village 
of  his  residence. 1°^ 

§  2125.  But  None  Where  Voluntarily  Removing  Residence  after 
Bankruptcy  Instituted. — The  bankrupt  may  not  be  allowed  his  expenses 
where  he  voluntarily  removes  his  residence  to  another  place  or  into  another 
district  after  he  has  commenced  proceedings. ^^^  Otherwise  a  bankrupt 
could  remove  his  home  to  distant  parts  and  then  elude  examination  unless 
his  necessary  expenses  were  paid  to  him ;  and  thus  could  so  annoy  and  over- 
burden his  creditors  as  to  frustrate  them  entirely  in  making  a  proper  dis- 
cover}^ of  the  assets  they  are  entitled  to. 

§  2126.  Whether  Officers  and  Directors  of  Bankrupt  Corporation 
Entitled  to  Witness  Fees. — It  is  a  query  whether  officers  and  directors 
of  a  bankrupt  corporation  are  entitled  to  witness  fees  when  examined. 
There  is  considerable  force  in  the  contention  that  they  are  not  so  entitled; 
for  they  are  to  be  considered  "the  bankrupt"  in  similar  relations  of  duty, 
such  as  that  of  preparing  schedules,  etc.^^° 

§  2127.  Witness  Fees  for  Attendance  without  Subpoena  Equally 
Allowable. — Fees  paid  witnesses  attending  without  being  subpcenaed  are 
to  be  allowed  as  costs. ^^" 

§  2128.  Amount  of  Witness  Fee. — Witnesses  in  bankruptcy  are  entitled 
to  the  usual  fees  and  mileage  allowed  in  federal  courts,  namely,  $1.50  per 
diem  and  five  cents  per  mile  each  way. 

193.  See  ante,  §  1577. 

194.  Bankr.  Act,  §  7  (a).  _ 

The  bankrupt  cannot  be  required  to  attend  a  meeting-  of  his  creditors,  or  at 
or  for  an  examination  at  a  place  more  than  one  hundred  and  fifty  miles  distant 
from  his  home  or  principal  place  of  business,  or  to  examine  claims,  except  when 
presented  to  him,  unless  ordered  by  the  court  or  the  judge  thereof  for  cause 
shown.       Bankr.  Act,  §  7  (a)   (9). 

See  ante,  "Discovery,"  §  1577. 

195.  In  re  Groves,  6  A.  B.  R.  732  (Ref.  Ohio,  affirmed  by  D.  C),  quoted,  § 
1578. 

196.  Impliedly,  Bankr.  Act,  §  1  (a)  (19):  "'Persons'  shall  include  corpora- 
tions, except  where  otherwise  specified,  and  officers,  partnerships  and  women, 
and  when  used  with  reference  to  the  commission  of  acts  which  are  herein  for- 
bidden shall  include  persons  who  are  participants  in  the  forbidden  acts,  and  the 
agents,  officers,  and  members  of  the  board  of  directors  or  trustees,  or  other 
similar  controlling  bodies  of  corporations." 

Compare,  analogously.  In  re  Alphin  &  Lake  Cotton  Co.,  12  A.  B.  R.  653,  128 
Fed.  834  (D.  C.  Ark.). 

197.  Hofifschlaeger  Co.  v.  Young  Xap,  12  A.  B.  R.  526  (D.  C.  Hawaii). 


1310  REMINGTON  ON  BANKRUPTCY.  §  2132 

No  mileage  may  be  charged  for  the  travel  of  witnesses,  in  the  absence 
of  an  affidavit  showing  their  residence  or  place  of  business,  or  the  dis- 
tance necessarily  traveled. 

§  2129.  Marshal's  Fees. — The  marshal  is  entitled  to  his  customary 
fees.i^s 

Section  829,  Rev.  Stat.,  U.  S.,  prescribes  the  marshal's  fees. 

§  2130.  Marshal  May  Demand  Indemnity. — The  marshal  is  entitled 
to  demand  indemnity.^*^^ 

§  2131.  May  Charge  Reasonable  Fee  for  Services  on  Petition  to 
Show  Cause. — The  marshal  may  charge  a  reasonable  fee  for  service  of  a 
petition  accompanying  a  show  cause  order,  although  it  be  not  specifically 
mentioned  in  §  829,  U.  S.  Rev.  Stats.200 

§  2132.  Marshal  and  Receiver  Entitled  to  Reasonable  Compensa- 
tion, Besides  Expenses,  on  Seizures  under  §  2  (3). — The  marshal  is 
entitled  to  reasonable  compensation,  in  addition  to  his  disbursements,  when 
he  takes  possession  of  the  goods  of  the  bankrupt  on  the  order  of  the  bank- 
ruptcy court  tmder  §  2  (3). 

In  re  Adams  Sartorial  Co.,  4  A.  B.  R.  107,  101  Fed.  215  (D.  C.  Colo.):  "The 
question  arises  under  the  third  clause  of  §  2  of  the  Bankruptcy  Act,  by  which 
the  court  has  authority  to  appoint  a  receiver,  or  the  marshal,  upon  application 
of  parties  in  interest,  in  cases  where  it  shall  appear  to  be  necessary 
for  the  preservation  of  the  estate,  to  take  charge  of  the  property  of 
the  bankrupt,  and  after  the  filing  of  the  petition,  and  until  it  is  dismissed  or 
the  trustee  is  qualified.  If  a  receiver  should  be  appointed  under  this  clause 
of  the  act,  there  would  be  no  question  as  to  his  right  to  compensation  for  his 
services,  and  I  do  not  perceive  that  it  can  make  any  difference  if  the  marshal 
shall  act  in  that  capacity.  The  circumstances  that  he  receives  a  salary  for  all 
services  performed  by  him  is  not  controlling.  The  referee  seems  to  have  as- 
sumed that,  because  he  did  not  personally  get  the  compensation  allowed,  there- 
fore it  was  not  intended  that  he  should  have  it.  That  is  not  the  fact.  The 
marshal  does  get  personal  compensation  for  all  services  rendered  by  him,  in 
the  way  of  salary;  and  fees  which  were  allowed  him  as  compensation  before 
the  act  fixing  a  salary  are  still  collected  in  suits  of  all  kinds,  as  a  fund  out  of 
which     salaries     shall     be     paid.       So     that     the     fact     that     there     is     a     salary 

198.  Bankr.  Act,  §  52  (b) :  "Marshals  shall  respectively  receive  from  the 
estate  where  an  adjudication  in  bankruptcy  is  made,  except  as  herein  other- 
wise provided,  for  the  performance  of  their  service  in  proceedings  in  bankruptcy, 
the  same  fees,  and  account  for  them  in  the  same  way,  as  they  are  entitled  to 
receive  for  the  performance  of  the  same  or  similar  services  in  other  cases  in 
accordance  with  laws  now  in  force,  or  such  as  may  be  hereafter  enacted,  fixing 
the  compensation  of  marshal." 

199.  Gen.  Order  X. 

200.  In  re  Damon,  5  A.  B.  R.  133,  104  Fed.  775  (D.  C.  N.  Y.).  Compare,  to 
same  effect,  inferentially,  In  re  Scott,  3  A.  B.  R.  625,  99  Fed.  404  (D.  C.  N.  Car.). 


§    2132  COSTS    AND    EXPENSES    OE    ADMINISTRATION.  1311 

is  a  matter  of  no  weight.  I  think  the  marshal  is  as  much  entitled 
to  pay  for  his  services  in  keeping  the  property  as  a  receiver  vi^ould  be  if 
a  receiver  had  been  appointed.  The  pay  ought  to  be  in  amount  such  as  the  act 
requires  in  respect  to  other  services  which  may  be  rendered  by  officers,  and  the 
fees  allowed  to  all  officers  under  this  act  are  small — so  small  that  there  is  a 
good  deal  of  grumbling  about  them — but  still  the  officers  go  on  and  accept  what 
they  can  get." 

And  there  is  no  fixed  rule  for  his  compensation  in  such  cases. ^oi 
Likewise,  the  receiver  is  entitled  to  reasonable  compensation,  when  he 
makes  the  seizure.-*^- 

201.  In  re  Scott,  3  A.  B.  R.  625,  99  Fed.  404  (D.  C.  N.  Car.). 

202.  In   re   Kirkpatrick,    Receiver,   17   A.   B.    R.    594,   148    Fed.   811    (C.    C.   A. 
Mich.). 


CHAPTER  XLI. 

Distribution  to  Creditors. 

Synopsis  of  Chapter. 

§  2133.  Distribution. 

§  2134.   Order  of  Priority  in  Distribution  Prescribed  by  Act. 

§  2135.  Priority  Not  Lost  by  Taking  Judgment,  nor  by  Assignment  of  Claim. 

§  2136.  Not  Lost  Where  Claim  Also  a  Secured  Debt. 

§  2137.  Mere  Judgments  Not  Entitled  to  Priority  as  Such. 

§  2138.  "Proof"'  of  Priority  Claim  Requisite,  Except  for  Taxes,  etc. 

§  2139.  No  Special  Form  of  Proof  nor  Assertion  of  Demand  Requisite. 

§  2140.  "Dividends"    on    Priority    Claims    Where    Funds    Insufficient. 

DIVISION  1. 

§  2141.     Taxes. 

§  2142.  Assessed  before  Bankruptcy  Though  Not  Payable  until  after  Adjudica- 
tion, Nevertheless  "Due  and  Owing." 

§  2143.  Back  Taxes,   Omitted,  to  Be  Paid. 

§  2144.  Delinquent  Penalties  and  Interest. 

§  2145.  Taxes  to  Be  Paid  Whether  Property  Comes  into  Trustee's  Hands  or 
Not. 

§  2146.  Taxes  on  Exempt  S'roperty  to  Be  Paid. 

§  2147.  Taxes  to  Be  Paid  Out  of  General  Fund  Though  Only  One  Benefited 
Is  Mortgagee,  Purchaser,  etc. 

§  2148.  But  Such  Absolute  Priority  Belongs  Solely  to  State,  Municipality,  etc.. 
Not  to  One  Who  Has  Paid  or  Holds  Tax  Title. 

§  2149.  "Subrogation". to  Tax,  Lien  Sometimes  Proper. 

§  2150.  Must  Be  Owing  by  Bankrupt  and  Assessed  against  Him. 

§  2151.  Firm  Taxes  in  Individual  Bankruptcies. 

§  2852.  Funds  in  Hands  of  Trustee  Taxable,  Where  Taxable  if  Similarly  Seques- 
trated by  State  Legal  Proceedings. 

§  2153.  "Tax"  Includes  Assessment  for  Local  Improvements. 

§  2154.  Nature  of  Tax,  Whether  License,  Penalty  or  Tax,  Generally  Determined 
by  State  Law. 

§  2155.  But  Not  Always. 

§  2156.  Thus,  Franchise  Tax. 

§  2157.  But  Bankruptcy  Court,   Forum  as  to  Amount  and  Legality  of  Tax. 

§  2158.  And  Decision  of  State  Board  of  Assessment  Not  "Res  Judicata." 

§  2159.  Nor  Is   Failure  to  Pursue  Statutory  Appeal  or  Abatement  Fatal. 

§  2160.  Whether  Taxes  "Provable"  Debts. 

§  2161.  No   Formal  "Proof"   Required:    Trustee   Must  Search  for  Taxes. 

§  2162.  Year's  Limitation  for  "Proofs"  Not  .A.pplicable  to  Taxes. 

§  2163.  Tax  Not  Such  "Secured"  Claim  as  Requires  Exhaustion  of  Security. 

DIVISION  2. 

§  2164.  Wages  of  Workmen,  Clerks  and  Servants. 

§  2165.  Must  Be  "Wages"  and  Be  "Due"  and  "Earned." 

§  2166.  Thus,  No  Priority  for  Damages  for  Breach  of  Contract  of  Employment. 

§  2167.  Only  "Workmen,"  "Clerks"  or  "Servants"   Entitled. 


DISTRIBUTION  TO  CREDITORS.  1313 

§  2168.   Relationship  between  Parties   Governs  and  Not  Solely  Kind  of  Work. 
§  2169.  "Workmen,"   "Clerks"   and-  "Servants"    to    Be    Given    Ordinary,    Popular 

Meaning. 
§  2170.  "Traveling  Salesmen"  also   Entitled  to  Priority. 
§  2171.  Definition  of  "Wage  Earner"  in  §§  1  and  4  Not  Criterion  Here. 
§  2172.  Thus,  Independent  Contractors  Not  Entitled. 
§  2173.  Exclusive  Employment  by  One  Person  Not  Requisite. 
§  2174.  But  Employment  by  Several  Tends  to  Show  Independent  Contractor. 
'§  2175.  "Piece  Workers"  May  Be  Entitled. 
§  2176.  Idea  of  Subordination  Implied. 
§  2177.   Correlative  Obligations  to  Serve  Implied. 

§  2178.  Must  Be  Performed  within  Three  Months  before  Bankruptcy. 
§  2179.  Whether    May    Be    for    Services    Covering    Longer    Period    if    Priority 

Claimed    Not  under  §  64  (b)   (4)  but  under  §  64  (b)   (5). 
§  2180.   Not  to  Exceed  "Three  Hundred  Dollars." 
§  2181.  But  Perhaps  for  More  if  Priority  Claimed   Not  under  §  64   (b)    (4)   but 

under  §  64   (b)    (5). 
§  2182.  Reducing  Claim  to  Judgment,  Not  Such   Merger  as  to  Lose  Priority. 
§  2183.   Nor  Is  Priority  Lost  by  Assignment  of  Claim. 
§  2184.  Subrogation  of  Persons   Advancing  Money  to   Meet   Pay   Rolls. 
§  2185.  Due  "Proof"  to  Be  Made  of  Priority  Claim. 
§  2186.  Wages  Claims  "of  Workmen,  Clerks  and  Servants"^No  Precedence  over 

Valid  Prior  Liens. 

DIVISION  3. 

§  2187.  Priorities  Granted  by  State  and  Federal  Laws. 

§  2188.  "Priority"  to  Be  Distinguished  from  "Liens." 

§  2189.  Federal  and  State  Government  and  Municipality,  as  Priority  Claimants. 

§  2190.  Priority  Given  to  "Any  Person"  by  United  States  Law  Preserved. 

§  2191.  Government  Contracts. 

§  2192.  No  Proof  of  Claims   Requisite  by  Government  to   Secure  Priority. 

§  ,2193.  Year's  Limitation  for  Proving  Claims  Not  Applicable  to  Government. 

§  2194.  State  Law  Priorities  Adopted  Where  Claimants  Not  in  Classes  Already 
Covered  by  Express  Bankruptcy  Priorities. 

§  2195.  State  Priorities  to  Laborers,  Where  Different  from  Bankruptcy  Prior- 
ities. 

§  2196.  WMiether  State  Priorities  in  Cases  of  Assignments,  Receiverships,  etc., 
Preserved  When  Custody  Superseded  by  Bankruptcy. 

§  2197.  Whether  State  Priorities  Dependent  on  Resort  to  Particular  Remedies, 
Such  as  Insolvency  or  State  Bankruptcy  Proceedings,  to  Be  Recog- 
nized. 

§  2198.  Rule  Adopting  State  Priorities,  Not  to  Override  §  67  "f"  Annulling 
"Legal"  Liens. 

§  2199.  But  Claimant  Must  Comply  with  All  Regulations  and  Prerequisites  of 
State  Priority. 

§  2200.  Whether,  Where  Bankruptcy  Prevents,  Compliance  Dispensed  with,  or 
Levy  Permitted  and  Discharge  Stayed  to  Enable  Perfecting  of  Pri- 
ority. 

§  2201.  Trustee  Cannot  Perfect  Priority  Claims. 

§  2202.  Relative  Precedence  among  State  Priorities  Preserved. 

§  2203.  Where  Both  State  Law  and  Bankrupt  Act  Gives  Priority  to  Same 
Class,  Bankrupt  Act  Excludes  State   Law. 

2  Rem  B— 8 


1314  re;mington  on  bankruptcy. 

§  2204.   Landlord's  Priorities. 

§  2205.  Priorities  for  Furnishing  Supplies  and  Materials  for  Manufacturing  Es- 
tablishments: Fiduciary  Debts  as  Guardian:  Community  Property 
of  Husband  and  Wife,  etc. 

DIVISION  4. 

§  2206.  Dividends  to  General  Creditors. 

§  2207.  To  Be   Paid  in  Two   Dividends. 

§  2208.  Purpose  of  Two  Dividends  Protection  of  Dilatory  Creditors. 

§  2209.  First   Dividend. 

§  2210.  Dividend  within  Thirty  Days  after  Adjudication  Required  Only  Where 
Money  in  Estate. 

§  2211.  Subsequent   Dividends. 

§  2212.  Dividends  Need  Not  Be  Returned  because  of  Filing  of  Subsequent 
Claims. 

§  2213.  Claims  Subsequently  Filed,  to  Receive  Prior  Dividends  before  New  Divi- 
dend Declared. 

§  2114.  Need  Not  Retain  Funds  until  Expiration  of  Year's  Limitation  for  Prov- 
ing Claims. 

§  2215.  "Ten  Days   Notice"  of  "Dividends." 

§  2216.  "Dividend    Sheets." 

§  2217.  Unclaimed  Dividends. 

§  2218.  Contracting  to   Postpone   One's   Dividend   to   That  of   Other   Creditors. 

SUBDIVISION    'V. 

§  2219.  Adjusting  Equities  in  Dividends  among  Creditors. 

§  2220.  Postponing  Dividends  of  Some  Creditors  to  Others,  Because  of  Equi- 
ties. 

§  2221.  Thus,  Dividing  Fund,  on  Setting  Aside  Void  Transfer,  Solely  among 
"Subsequent"  Creditors. 

§  2222.  Requiring  Surrender  of  Illegal  Advantage  before  Allowing  to  Share  in 
Dividends. 

§  2223.  Requirement  of  Surrender  of  Preferences  before  Allowing  to  Share  in 
Dividends. 

SUBDIVISION    "b". 

§  2224.  Dividends  Not  to  Be  Subjected  by  Garnishment. 

§  2225.  But  Probably  May  Be  by  Equitable  Action. 

§  2226.  Bankruptcy  Court  No  Jurisdiction  to  Entertain  Such  Action. 

§  2227.  If  Bankrupt  Garnishee,  Trustee  to  Respond. 

SUBDIVISION    "C". 
S  2228.  Bankruptcy   Court   Has  Jurisdiction   over  Attorneys'    Lien   Claims. 
§  2229.  Attorney's  Right  to  Lien. 

DIVISION  5. 

SUBDIVISION    ''a".     ' 

§  2230.   In  General.. 

§  2231.  Where  Partnership  Bankrupt,  Individual  Estates  Brought  in  Though 
Individuals  Not  Adjudged  Bankrupt. 

§  2232.  And  "Consent"  Not  Necessary. 

§  2233.  Partnership  Trustee,  Trustee  Also  of  Individual   Estates. 

§  2234.  Separate  Accounts  to  Be  Kept  and  Joint  Expenses  Apportioned. 

§  ^235.  Property  Originally  Individual,  Becoming  Partnership,  to  Be  Admin- 
istered as  Such. 


DISTRIBUTION  TO  CREDITORS.  1315 

§  2236.  Agreement   Not  Necessarily  Express. 

§  2237.  Partnership  Debts  "Provable"  against  Individual  Both  in  Partnership 
and  in  Individual  Bankruptcy,  Likewise  Individual  Debts  against 
Partnership. 

§  2238.  Partnership  Creditors  to  Exhaust  Partnership  Assets,  Individual  Cred- 
itors  Individual   Assets;   Each   Sharing  in   Other   Only  in   Surplus. 

§  2239.  Section  5  Refers  Only  to  Actual  Partnerships,  Not  Those  by  "Holding 
Out." 

§  2240.  Obligations  Signed  by  Firm  in  Firm  Name,  Prima  Facie  Allowable  as 
Firm  Debts. 

§  2241.  Individual  Debt  Assumed  by  Firm  Provable  against  Partnership  if  Suf- 
ficient  Consideration. 

§  2242.  But  Assumption  Must  Be  Acquiesced  in  by  Creditors. 

§  2243.  Loan  to  Enable  Partner  to  Furnish  Contributory  Share  Not  Firm  Debt. 

§  2244.  Mere  Joint  Obligations,  Not  Amounting  to  Partnership  Debts,  Not  Al- 
lowable, on  Par  with  Firm  Debts. 

§  2245.  Parol  Evidence  Admissible  to  Show  Obligations  Apparently  Individual, 
to   Be    Firm   Debts. 

§  2246.  Partnership  Released  by  Creditor's  Acceptance  of  Individual  Obligation. 

§  2247.  Secret  Partner's   Claim,  Not  Debt  against  Partnership. 

SUBDIVISION    "b". 

§  2248.  Trustee  in  Individual  Bankruptcy  of  Partner  Not  to  Interfere  with  Firm 
Assets,  without  Consent. 

§  2249.  Member  Bankrupt,  but  Partnership  Not,  Remaining  Partners  to  Ac- 
count for  Bankrupt's  Share. 

§  2250.   In  What  Court  Trustee  to  Seek  Accounting. 

§  2251.  Partnership  Afifairs  Not  to  Be  Administered  in  Individual  Bankruptcy, 
Except  by  Consent. 

§  2252.  But  May  Be  So  Administered  if  Nonbankrupt  Partner  Consents. 

§  2253.  "Consent"  a  Question  of  Fact. 

§  2254.  Partnership  Property  Comes  into  Individual  Bankruptcy  Burdened  with 
Lien  in  Favor  of  Firm  Creditors. 

§\2255.  Individual  Creditors  Exhaust  Individual  Property,  Firm  Creditors,  Firm 
Property — Each  Sharing  Only  in  Any  Surplus  of  Other. 

§  2256.  Even  Where  No  Partnership  Assets. 

§  2257.  Even  Where  No  Partnership  Assets  and  All  Partners   Insolvent. 

§  2258.  Joint  and  Several  Obligations  for  Partnership  Debt,  Share  in  Indi- 
vidual Estate. 

§  2259.  Partner's  Right  of  Contribution  for  Paying  Firm  Debts,  Provable  in 
Other  Partner's  Bankruptcy. 

§  2260.  On  Marshaling  Partnership  and  Individual  Estates  Solvent  Partner's 
Excess   Contribution   Provable   against   Individual    Estate. 

§  2261.  Likewise,  Partner's  Right  of  Indemnity  (Where  Surety)  for  Paying 
Copartner's  Individual  Debt  Provable  against  Copartner's  Individual 
Estate,  Entitling  to  Subrogation  to   Creditor's  Claim. 

§  2262.  But  Claim  of  Retiring  Partner  for  Unpaid  Purchase  Price  of  Partner- 
ship Share,  Not  to  Share  with  Partnership  Creditors  in  Surplus  of 
Remaining  Partner's  Individual  Estate. 

§  2263.  Obligation  Signed  in  Individual  Name,  Prima  Facie  Individual  Debt. 

§  2264.  Firm  Debt  Assumed  by  Partner,  Provable  against  Partner's  Individual 
Estate. 


1316  REMINGTON  ON  BANKRUPTCY. 

SUBDIVISION    "C". 

§  2265.  "Preferences"  and  "Legal  Liens"  on  Individual  Property  Not  Nullified 
by  Firm  Bankruptcy;   and  Vice  Versa. 

§  2266.  Thus,  "Legal  Liens"  within  Four  Months,  on  Individual  Property,  Not 
Affected   bj'   Partnership    Bankruptcy. 

§  2267.  Nor  Are  Similar  Liens  on  Partnership  Property  Affected  by  Individual 
Bankruptcy. 

§  2268.  Nor  Are  "Transfers"  by  Partnership  Voidable  as  "Preferences,"  by 
Bankruptcy   of   Partner. 

SUBDIVISION    "n\ 

§  2269.  First,  Where  One  Partner  in  Insolvent  Firm  Sells  Out  to  Other  Who 
Thereafter   Becomes   Bankrupt. 

§  2270.  But  if  Partnership  Creditors  Assent  to  Assumption,  They  Become  In- 
dividual Creditors. 

§  2271.  Where  Sale  Made  to  Enable   Remaining  Partner  to  Claim   Exemptions. 

§  2272.  Retiring  Partner,  Surety  for  Remaining  Partner,  Entitled  to  Subroga- 
tion to  Debts  He  Pays. 

§  2273.  But  Retiring  Partner's  Claim  for  Purchase  Price  of  Share,  Not  to  Com- 
pete with  Firm  Creditors  in  Individual  Estate  of  Remaining  Partner. 

§  2274.  Whether  "Preferential"  Transfer  by  Partnership  Voidable  Where  Re- 
maining Partner  Alone  in  Bankruptcy. 

§  2275.  Second,  Where  One  Partner  of  Insolvent  Partnership  Sells  Out  to  Other 
and  Himself  Becomes  Bankrupt. 

§  2276.  Third,  Where  Partnership  Interest  Transferred  to  Third  Persons,  Part- 
ner  Becoming  Bankrupt. 

DIVISION   6. 

SUBDIVISION    "a". 

§  2277.  Subrogation  by  Assignment  of  Claims  after  Bankruptcy. 

SUBDIVISION    "b". 

§  2278.  Subrogation  by  Agreement  with  Bankrupt  or   Creditor. 

§  2279.  Whether  Subrogation  to  Workmen's  Priority  Claims  to  Compete  with 
Workmen's  Own  Later  Claims. 

§  2280.  Subrogation  of  Sureties  for  Bankrupt  to  Creditors'  Rights  and  of  Cred- 
itors to  Indemnity  Given  Sureties.  ' 

§  2281.  Subrogation  of  Interested  Party,  Paying  to  Preserve  Assets. 

§  2282.  Mere  Volunteers  Not   Entitled   to   Subrogation. 

§  2283.  No  Subrogation  of  Trustee  to  Liens  on  Exempt  Property  Paid  Off  on 
Eve  of   Bankruptcy. 

DIVISION  7. 
§  2284.  Distribution   to  Be   Based  on   Order  of  Court. 

SUBDIVISION    "a". 

§  2285.  Trustee's  Reports. 

§  2286.   Form   of  Trustee's   Reports. 

§  2287.  Review  of  Order  Approving  Trustee's   Report  and  Allowing   Expenses 

and.  Commissions. 
§  2288.  If    Meeting   Called    to    Consider    Report,    Ten    Days'    Notice     Requisite. 
§  2289.  Also,  If  Dividend  to  Be  Declared. 
§  2290.  Contents  of  Notice. 


§    2135  DISTRIBUTION  TO  CREDITORS.  1317 

§  2291.  Auditing  of  Accounts. 

§  2392.  At  Time  and  Place   Set,   Report   to   Be    Passed  on,    Expenses   Allowed, 

Dividends  Declared  and  Distribution  Ordered. 
§  2293.  Exceptions  to  Reports  and  Orders  of  Distribution. 
§  2294.  Exceptions  to  Accounts  to  Be  Filed  Promptly.     , 

§  2133.  Distribution. — In  the  orderly  development  of  the  treatise,  after 
consideration  of  the  subjects  of  the  separation  of  the  assets  belonging  to  the 
creditors  in  bankruptcy  from  those  belonging  to  others,  and  the  collecting 
and  converting  of  the  same  into  money,  and  the  payment  of  the  costs  and 
expenses  of  administration,  naturally  the  subject  is  reached  of  the  dis- 
tribution of  the  remaining  proceeds  among  the  creditors.  This  end,  in- 
deed, is  precisely  the  goal  towards  which  the  bankruptcy  proceedings  have 
been  directed  in  behalf  of  creditors. 

§  2134.  Order  of  Priority  in  Distribution  Prescribed  by  Act. — The 

I'ankruptcy  Act  prescribes  a  certain  order  of  priority  in  the  payment  of 
creditors  out  of  the  net  amount  of  the  fund  left  after  separation  of  the 
property  belonging  to  the  estate  from  that  belonging  to  adverse  claimants, 
secured  creditors  and  the  bankrupt,  and  after  the  payment  of  the  costs  and 
expenses  of  administration. ^ 

The  word  "preference"  is  frequently  used  when  "priority"  is  meant. 
"Preference,"  in  bankruptcy  law,  has  a  distinct  meaning  and  the  meaning 
is  invidious. - 

The  order  of  priority  is,  in  general,  first,  taxes ;  second,  certain  wages  of 
workmen,  clerks  and  servants ;  third,  priorities  given  by  state  and  federal 
laws ;  and  lastly,  dividends  to  general  creditors. 

§  2135.  Priority  Not  Lost  by  Taking  Judgment  or  Note;  nor  by  As- 
signment of  Claim. — Priority  is  not,  in  general,  lost  by  taking  judgment, 
by  acceptance  of  a  note,  or  by  assignment  of  the  claim.  Thus,  it  is  not  lost 
by  taking  judgment,  whether  the  priority  be  one  created  by  the  bankruptcy 
act,^  or  be  a  state  priority  adopted  in  bankruptcy  under  §  64  (b)  (5),  if 
rot  thereby  forfeited  by  state  law.^ 

It  is  not  lost  by  the  acceptance  of  a  note. 

In  re  Worcester  County,  4  A.  B.  R.  496,  102  Fed.  808  (C.  C.  A.  Mass.):  "Tak- 
ing a  note  does  not  discharge  an  original  debt  which  has  any  privileges,  and 
either  might  be  proved." 


1.  Smith  V.  Motley,  17  A.  B.  R.  865,  150  Fed.  266  (C.  C.  A.  Ohio). 

2.  Smith  v.  Motley,  17  A.  B.  R.  865  (C.  C.  A.  Ohio) ;  "*  *  *  But  even  in 
proceedings  in  bankruptcy  priorities  or  'preferences,'  as  they  are  sometimes 
called,  when  'priorities'  are  meant     *     *     *." 

■     3.    In  re  Anson,  4  A.  B.  R.  231,  101  Fed.  698   (D.  C.  Calif.).     Compare,  In  re 
McBryde,  3  A.  B.  R.  729,  99  Fed.  686  (D.  C.  N.  Car.). 
4.    Compare,  In  re  Johnson,  footnote  to  4  A.  B.  R.  231   (D.  C.  Calif.). 


1318  re;mington  on  bankruptcy.      •  §  2139 

Nor  by  the  assignment  of  the  claim  ;^  at  any  rate  not  where  the  priority 
has  become  fixed 'be  fore  the  assignment.  Nor  even  where  the  assignment 
occurred  before  the  commencement  of  the  bankruptcy  proceedings.*^ 

§  2136.  Not  Lost  Where  Claim  Also  a  Secured  Debt. — The  prior- 
ity is  not  lost  where  the  claim  is  also  a  secured  debt.'^ 

The  creditor  simply  has  two  sources  of  payment,  his  security  and  his  pri- 
ority. It  is  even  doubtful  whether  there  exists  any  right  to  require  the  ex- 
haustion of  the  security  first.^ 

§  2137.  Mere  Judgments  Not  Entitled  to  Priority  as  Such. — A 

merely  personal  judgment,  the  claim  on  which  it  is  founded  not  being  en- 
titled to  priority,  is  not  entitled  as  such  to  priority  of  payment  out  of  the 
general  funds,  nor  is  it  entitled  to  payment  from  the  proceeds  of  any  par- 
ticular part  of  the  property,  unless  it  is  a  lien  thereon  under  the  state  law.^ 

§  2138.  "Proof"  of  Priority  Claim  Requisite,  Except  for  Taxes, 

etc. — Due  proofs  of  claim  are  requisite  for  priority  claims,  precisely  as  for 
other  claims  of  creditors.  They  are  none  the  less  "provable"  debts  because 
entitled  to  priority  of  payment.  Thus,  claims  for  rent  must  be  proved  where 
certain  priority  is  given  to  the  landlord  by  state  law.  Taxes  are  provable 
debts  and  may  be  "proved"  even  though  in  general  they  must  be  taken  care 
of  without  any  prerequisite  filing  of  claims  by  the  sovereign. '^^ 

§  2139.  No  Special  Form  of  Proof  nor  Assertion  of  Demand  Requi- 
site.— No  special  form  of  proof  is  prescribed  for  priority  claims;  nor  is 
it  requisite  that  the  claimant  assert  his  right  to  the  priority  by  formal  de- 
mand in  the  affidavit. 

In  re  Worcester  Co.,  4  A.  B.  R.  502,  102  Fed.  808  (C.  C.  A.  Mass.):  "Nothing 
is  found  in  the  orders  giving  any  special  direction  with  reference  to  the  manner 
of  proving  claims  in  connection  with  which  a  priority  is  asserted.  Neither  do 
the  prescribed  forms  for  proofs  of  debts  contain  anything  of  that  character, 
although  the  form  of  the  proof  of  a  secured  debt  requires  that  it  shall  enumer- 
ate the  securities  held  by  the  creditor.  Neither  is  there  anything  in  the  statute 
giving  any  direction  as  to  the  method  of  proving  a  debt  in  reference  to  a 
priority.  The  topic  is  covered  by  §  57  (30  Stat.  560).  The  first  paragraph  of 
that  section  ("a")  gives  detailed  directions  for  the  proof,  but  it  omits  any  ref-  . 

5.  In  re  Worcester  County,  4  A.  B.  R.  496,  102  Fed.  808  (C.  C.  A.  Mass.); 
In  re  Harmon,  11  A.  B.  R.  64,  128  Fed.  170  (D.  C.  W.  Va.)  ;  (1867)  In  re  Brown, 
Fed.  Cas.  1,974;  contra,  In  re  Westlund,  3  A.  B.  R.  646,  99  Fed.  399  (D.  C. 
Minn.).  Also  contra,  obiter,  In  re  North  Carolina  Car  Co.,  11  A.  B.  R.  488,  127 
Fed.  178  (D.  C.  N.  Car.). 

6.  Shropshire,  Woodlifif  &  Co.  v.  Bush,  17  A.  B.  R.  78,  204  U.  S    186 

7.  Chattanooga  v.  Hill,  15  A.  B.  R.  197.  139  Fed..  600  (C.  C.  A.  Tenn.). 

8.  But  compare,  In  re  Barr  Pumping  Engine  Co.,  11  A.  B.  R.  313  (Ref.  Pa.). 

9.  In  re  Wood,  2  A.  B.  R.  695,  95  Fed.  946  (D.  C.  N.  Car.). 

10.  See,  as  to  taxes,  post,  §  2161.  See,  as  to  other  claims  of  the  government, 
post,  §  2191. 


§   2141  DISTRIBUTION  TO  CREDITORS.  1319 

erence  to  the  matter  of  priority,  although  it  is  express  about  proofs  by  creditors 
holding  securities.  Paragraph  "e"  provides  that  the  claims  of  secured  creditors 
and  of  those  who  have  priorities  may  be  allowed,  in  order  to  enable  such  cred- 
itors to  participate  at  meetings  held  prior  to  the  determination  of  the  value  of 
their  securities  or  priorities,  but  they  are  thus  to  be  allowed  for  such  sums  only 
as  to  the  court  seems  to  be  owing  over  and  above  the  value  of  their  securities 
or  priority.  This,  however,  concerns  only  the  preliminary  determination  in  a 
preliminary  way  of  the  franchise  rights  of  creditors.  *  *  *  There  is  nothing 
in  this  section  (64)  to  indicate  that  the  question  of  priority  is  essentially  in- 
volved in  the  mere  matter  of  proving  a,  debt,  or  even  that  a  claim  to  priority 
should  appear  in  the  formal  proof." 

However,  the  affidavit  for  proof  of  debt  should,  in  practice,  contain  al- 
legations sufficient  to  show  the  debt  is  one  of  those  enumerated  in  §  64  as 
entitled  to  priority  and  such  affidavit  should  be  sufficient  where  no  objec- 
tion is  made  to  establish  the  priority. 

§  2140.  "Dividends"  on  Priority  Claims  Where  Funds  Insufficient. 

— Of  course,  if  there  is  not  enough  to  pay  any  particular  class  of  the  prior- 
ity claimants  in  full,  a  dividend  of  a  per  cent,  should  be  declared  to  such 
priority  claimants.  There  can  be  a  dividend  to  priority  creditors  just  as 
well  as  to  general  creditors. ^^ 


Division  1. 
Taxes. 

§  2141.  Taxes. — The  first  creditor  to  be  taken  care  of,  is,  of  course,  the 
slate. 

The  act  prescribes  that  the  court  shall  order  the  trustee  to  pay  all  taxes 

legally  due  and  owing  by  the  bankrupt  to  the  United  States,  state,  county, 

district  or  municipality,  in  advance  of  the  payment  of  dividends  to  cred- 
itors.^2 

In  re  Prince  &  Walter,  12  A.  B.  R.  678,  131  Fed.  546  (D.  C.  Pa.):  "Taxes, 
as  a  class,  are  thus  put  at  the  head  of  everything — even  above  the  expense  of 
preserving  the  estate,  or  the  cost  of  administering  it." 

11.  In  re  Muhlhauser,  9  A.  B.  R.  81   (Ref.  Ohio). 

12.  The  Act  of  1898  differs  widely  from  the  Act  of  1867  in  relation  to  taxes: 
State  of  N.  J.  V.  Anderson,  17  A.  B.  R.  67,  203  U.  S.  483. 

Bankr.  Act,  §  64  (a).  State  of  N.  J.  v.  Anderson,  17  A.  B.  R.  65,  203  U.  S. 
483;  City  of  Waco  v.  Bryan,  11  A.  B.  R.  481,  127  Fed.  79  (C.  C.  A.  Tex.);  Chat- 
tanooga V.  Hill,  15  A.  B.  R.  195,  139  Fed.  600  (C.  C.  A.  Tenn.) ;  Cooper  Grocery 
Co.  V.  Bryan,  11  A.  B.  R.  734,  127  Fed.  815  (C.  C.  A.  Tex.);  In  re  Harvey,  10  A. 
B.  R.  567,  122  Fed.  745  (D.  C.  Pa.);  In  re  Flynn,  13  A.  B.  R.  720,  134  Fed.  145 
(D.  C.  Mass.);  In  re  Stalker,  10  A.  B.  R.  713,  123  Fed.  961  (D.  C.  N.  Y.) ;  In  re 
Tilden,  1  A.  B.  R.  301,  91  Fed.  501  (D.  C.  Iowa);  In  re  Conhaim,  4  A.  B.  R. 
58,  100  Fed.  268  (D.  C.  Wash.);  obiter.  Sellers  v.  Bell,  2  A.  B.  R.  542,  94  Fed. 
801  (C.  C.  A.  Ala.);  In  re  Hilbert,  6  A.  B.  R.  714  (Ref.  Penna.);  In  re  Cleanfast 
Hosiery  Co.,  4  A.  B.  R.  702  (Ref.  N.  Y.) ;  In  re  Force,  4  A.  B.  R.  117  (Ref. 
Mass.);  In  re  Wyoming  Valley  Ice  Co.,  16  A.  B.  R.  594,  145  Fed.  267  (D.  C. 
Pa.);  In  re  Fisher  &  Co.,  17  A.  B.  R.  412,  148  Fed.  90»  (D.  C  N.  J.). 


1320  REMINGTON  ON  BANKRUPTCY.  §  2141 

It  is  incorrect  to  say,  as  was  said  in  In  re  Veitch,  4  A.  B.  R.  112  (D.  C. 
Conn.),  that  taxes  come  under  §  64  (b)   (5)  in  the  order  of  priority. 

"Debts  owing  to  any  person  who  by  the  laws  of  the  State  or  United  States 
is  entitled  to  priority."i3 

On  the  contrary,  §  64  (a)  specifies  a  distinct  order  of  priority.  That 
section  of  the  statute  would  be  deprived  of  all  significance  if  taxes  were 
comprehended  within  §  64  (b)  (5).  ^Moreover,  the  other  paragraph  of 
§  64,  paragraph  (b),  refers  to  the  order  of  priority  "except  as  herein  other- 
wise provided,"  clearly  indicating  that  the  only  remaining  paragraph 
"herein"  was  meant  to  prescribe  a  priority.^^ 

Again,  taxes  from  their  nature  ought  to  come  next  to  costs  in  the  order 
of  priority,  for  without  taxes  the  general  government  would  fail ;  as,  also 
without  costs  the  particular  protection  of  the  state  in  the  immediate  prop- 
erty concerned  could  not  be  afforded.  The  state  riiust  not  be  delayed  nor 
hindered  in  its  collection  of  taxes  and  it  is  this  urgency  that  lies  at  the  basis 
of  the  priority  given,  to  taxes. ^^ 

City  of  Waco  v.  Bryan,  11  A.  B.  R.  481,  127  Fed.  79  (C.  C.  A.  Tex.):  "The 
sovereign  cannot  be  hindered  or  embarrassed  or  postponed  in  the  collection  of 
his  revenues.  This  policy  was  recognized  in  all  the  bankruptcy  laws  heretofore 
passed.  Section  62  of  the  Bankruptcy  Act  of  April  4,  1800,  ch.  19,  2  Stat.  36, 
provides  that  'nothing  contained  in  this  law  shall  in  any  manner  affect  the  right 
of  preference  to  prior  satisfaction  of  debts  due  the  United  States.'  Section 
5  of  the  Act  of  August  19,  1841,  ch.  9,  5  Stat.  444,  gives  priority  to  the  United 
States  (for  all  debts  due  by  such  bankrupt  to  the  United  States).  Section  28  of 
the  Act  of  March  3,  1867,  ch.  176,  14  Stat.  530,  gives  priority,  first,  'for  the  fees, 
costs  and  expenses  of  suit,'  etc.;  second,  'for  all  debts  due  the  United  States 
and  all  taxes  and  assessments  under  the  laws  thereof;'  third,  'for  all  debts  due 
to  the  State  in  which  the  proceedings  in  bankruptcy  are  pending,  and  all  taxes 
and  assessments  made  under  the  laws  of  such  State.'  The  present  Bankruptcy 
Law  gives  priority  for  all  taxes  legally  due  and  owing  by  the  bankrupt  to  the 
United  States,  the  State,  county,  district  or  municipality,  in  advance  of  the  pay- 
ment of  dividends  to  creditors.  In  short,  it  puts  taxes  due  the  State,  counties 
and  municipalities  upon  the  same  footing  as  taxes  due  the  United  States.  On 
the  plain  construction  of  §  64a  of  the  present  law,  and  particularly  in  the  light 
of  past  legislation  on  the  subject,  there  is  no  room  to  hold  that  it  makes  any 
difference  whatever,  as  to  the  right  of  priority,_whether  property  on  which 
taxes  were  assessed  ever  came  into  the  hands  of  the  trustee.  The  test  is  given 
in  the  statute:  Are  the  taxes  legally  due  and  owing  by  the  bankrupt  to  the 
United  States,  State,  county,  district  or  municipality  claiming  the  same?  If 
yea,  they  are  entitled  to  be  paid  in  advance  of  the  payment  of  dividends  to  cred- 
itors, for  thus  saith  the  law." 

In  re  Stalker,  10  A.  B.  R.  713,  123  Fed.  961  (D.  C.  N.  Y.) :  "The  significance 
of  §  64  (a)  *  *  *  is  that  a  claim  for  taxes  is  paramount  to  all  other  claims 
because  of  the  pecuniary  needs  and  requirements  of  the  municipality." 

13.  Chattanooga  v.  Hill,  15  A.  B.  R.  195,  139  Fed.  600  (C.  C.  A.  Tenn.). 

14.  Compare,  In  re  Cleanfast  Hosiery  Co.,  4  A.  B.  R.  702  (Ref    NY) 

15.  In  re  Tilden,  1  A.  B.  R.  301,  91  Fed.  501  (D.  C.  Iowa);  Chattanooga  v 
Hill,  15  A.  B.  R.  195,  139  Fed.  600  (C.  C.  A.  Tenn  )  «       • 


§    2144  DISTRIBUTION  TO  CREDITORS.  1321 

The  statute,  in  §  64  (b),  provides,  as  the  item  entitled  to  the  next  place  in 
the  order  of  distribution  after  costs  of  administration,  "wages  due  to  work- 
men, clerks  and  servants;"  nevertheless  §  64  (a)  provides  that  taxes  are  to 
be  paid  before  creditors.  So,  the  proper  order  of  priority  is  for  taxes  next 
after  costs  of  administration.^*'  And  it  seems  improper  in  theory  and 
unnecessary  from  the  point  of  view  of  statutory  construction  to  place  taxes 
in  advance  of  costs  of  administration. 

§  2142.  Assessed  before  Bankruptcy  Though  Not  Payable  until 
after  Adjudication,  Nevertheless  "Due  and  Owing." — Taxes  assessed 
against  the  bankrupt  before  bankruptcy,  although  not  payable  until  after 
adjudication,  are,  nevertheless,  "due  and  owing. "^'^ 

§  2143.  Back  Taxes,  Omitted,  to  Be  Paid. — Back  taxes,  omitted  from 
the  tax  lists  of  previous  years,  are  to  be  paid.^^ 

In  re  Conhaim,  4  A.  B.  R.  58,  100  Fed.  268  (D.  C.  Wash.) :  "The  bankruptcy 
law  very  justly  requires  the  trustee  of  a  bankrupt  estate  to  pay  all  taxes  legally 
due  and  owing  by  the  bankrupt,  and  the  court  will  not  favor  any  evasion  of 
this  law  by  giving  a  too  literal  construction  to  its  words  *  *  *  the  omission 
of  the  property  from  the  tax  list  for  any  year  does  not  exempt  it  from  taxation. 
On  the  contrary,  it  is  the  duty  of  the  taxpayer  to  have  the  property  listed  by 
the  tax  collector  and  to  pay  the  tax." 

§  2144.  Delinquent  Penalties  and  Interest. — The  taxes  are  to  be  paid 
in  full,  including  any  penalties  or  interest  for  delinquency  to  the  date  of 
j)ayment,  the  same  as  if  the  property  were  not  in  the  hands  of  the  court.^^ 

In  re  Kallak,  17  A.  B.  R.  414,  147  Fed.  276  (D.  C.  N.  Dak.):  "As  other 
claims  are  not  permitted  to  draw  interest  after  the  adjudication,  it  is  therefore 
contended  that  the  amount  of  the  public  demand  for  taxes  is  subject  to  the 
same  restriction.  The  fact  is,  however,  that  under  the  Bankruptcy  Law,  §  64a, 
and  other  provisions  dealing  with  the  same  subject,  public  taxes  do  not  consti- 
tute a  'claim'  in  bankruptcy.  It  is  not  necessary  for  the  public  authorities  to 
appear  in  a  court  of  bankruptcy  as  ordinary  claimants.  They  have  no  right  in 
the  administration  as  creditors  and  no  voice  in  the  selection  of  trustee,  and  the 
liability  for  taxes  is  in  no  way  affected  by  the  discharge  of  the  bankrupt.  On 
the  other  hand,  the  duty  of  the  affirmative  action  rests  upon  the  court  of  bank- 
ruptcy.    It  is  the  duty  of  the  trustee  to  ascertain  from  the  public  records  the 

16.  One  case,  indeed,  holds  that  taxes  are  to  be  paid  before  even  costs  of 
administration:  Obiter,  In  re  Prince  &  Walter,  12  A.  B.  R.  678,  131  Fed.  546 
(D.  C.  Pa.).  But  see  quaere,  Chattanooga  v.  Hill,  15  A.  B.  R.  195,  139  Fed.  600 
(C.  C.  A.  Tenn.). 

17.  In  re  Flynn,  13  A.  B.  R.  720,  134  Fed.  145  (D.  C.  Mass.);  In  re  Fisher  & 
'Co.,  17  A.  B.  R.  412,  148  Fed.  907  (D.  C.  N.  J.). 

And  the  funds  are  taxable  even  if  assessed  after  bankruptcy.  In  re  Fishsr 
&  Co.,  17  A.  B.  R.  412,  148  Fed.  907  (D.  C.  N.  J.).     See  also,  post,  §  2152. 

18.  Interest  on  taxes.  In  re  Cosmopolitan  Power  Co.,  14  A.  B.  R.  604,  137 
Fed:  858  (C.  C.  A.  Ills.). 

19.  Contra-,  but  point  apparently  not  discussed  in  argument,  In  re  Fisher  & 
•Co.,  17  A.  B.  R.  413  (D.  C.  N.  J.). 


1322  REMINGTON  ON  BANKRUPTCY.  §  2145 

amount  due  for  .taxes  and  briog  the  matter  to  the  attention  of  the  court,  and 
thereupon  it  is  the  duty  of  the  court  to  order  their  payment  if  there  are  suf- 
ficient funds  in  the  estate  for  that  purpose.  There  are  two  reasons  why  ordinary 
claims  of  creditors  are  not  permitted  to  draw  the  interest  subsequent  to  the 
adjudication;  first,  it  is  important  that  the  proportionate  interest  of  the  several 
creditors  in  the  estate  be  ascertained  and  fixed.  If  interest  were  to  accrue, 
however,  after  the  adjudication,  the  amount  of  the  several  claims  would  vary 
from  time  to  time,  according  to  their  respective  rates  of  interest  and  the  pro- 
portionate share  of  the  several  creditors  would  be  subject  to  constant  readjust- 
ment. The  second  reason  is  the  convenience  of  administration.  If,  at  the 
declaration  of  every  dividend,  a  new  basis  of  apportionment  were  required, 
depending  upon  varying  rates  of  interest,  the'  administration  of  the  estate 
would  be  seriously  complicated.  Chemical  National  Bank  v.  Armstrong,  59 
Fed.  372,  379;  White  v.  Knox,  111  U.  S.  784.  In  the  case  of  public  taxes,  neither 
of  these  reasons  has  any  application  because  they  do  not  share  the  estate  with 
the  claims  of  private  creditors.  On  the  contrary,  §  64a  expressly  provides  that 
before  anything  shall  be  paid  to  the  creditors  by  way  of  dividends,  all  taxes 
owing  by  the  bankrupt  shall  be  fully  discharged.  The  reason  for  claims  be- 
coming fixed  at  the  date  of  the  adjudication  so  that  interest  shall  not  subse- 
quently accrue  having  no  application  to  public  taxes,  the  rule  itself  should  not 
be  applied  in  such  cases." 

§  2145.  Taxes  to  Be  Paid  Whether  Property  Comes  into  Trustee's 
Hands  or  Not. — Taxes  must  be  paid  in  advance  of  payments  to  other  cred- 
itors, whether  or  not  the  property  on  which  the  taxes  were  assessed  ever 
came  into  the  hands  of  the  trustee. ^o 

City  of  Waco  v.  Bryan,  11  A.  B.  R.  481,  127  Fed.  79  (C.  C.  A.  Tex.):  "This 
section  is  perfectly  plain  and  seems  to  admit  of  very  little,  if  any,  construction. 
It  is  contended  that  it  is  inequitable  for  the  bankrupt's  estate  to  be  compelled 
to  pay,  by  prioritj%  taxes  originally  levied  on  property  which  does  not  come 
into  the  hands  of  the  trustee.  To  this  it  is  sufficient  answer  to  say  that  the 
priority  to  be  given  pajaiient  of  claims  against  the  bankrupt  is  within  the  con- 
trol of  the  lawmaker,  and  is  absolutely  fixed  by  the  statute,  and  the  rule  therein 
declared  cannot  be  varied  to  meet  ideas  of  what  equity  and  good  conscience 
may  require.  From  the  foundation  of  the  government,  it  has  been  the  policy 
of  the  United  States  to  exact  priority  in  favor  of  the  United  States  in  all  cases 
of  insolvency.  This  policy  is  declared  in  §  3466  of  the  revised  statutes,  as 
follows: 

"  "Priority  Established.  Whenever  any  person  indebted  to  the  United  States 
is  insolvent,  or  whenever  the  estate  of  any  deceased  debtor,  in  the  hands  of  the 
executors  or  administrators,  is  insufficient  to  pay  all  the  debts  due  from  the 
deceased,  the  debts  due  to  the  United  States  shall  be  first  satisfied;  and  the 
priority  hereby  established  shall  extend  as  well  to  cases  in  which  a  debtor,  not 
having  sufficient  property   to   pay   all   his   debts,   makes   a   voluntary   assignment 

20.  In  re  Prince  &  Walter,  12  A.  B.  R.  678,  131  Fed.  546  (D.  C.  Pa.):  This 
case  goes  even  too  far,  holding,  obiter,  that  taxes  come  ahead  of  costs  of  ad- 
ministration— a  holding  not  required  by  the  wording  of  the  statute  nor  by 
reason. 

But  a  city  is  not  entitled  to  a  lien  upon  the  assets  for  thfe  amount  of  taxes 
assessed  upon  property  that  never  came  into  its  hands  as  trustee.  Waco  v. 
Bryan,  11  A.  B.  R.  481,  127  Fed.  79  (C.  C.  A.  Tex.). 


§    2147  DISTRIBUTION  TO  CREDITORS.  1323 

thereof,  or  in  which  the  estate  and  effects  of  an  absconding,  concealed  or  ab- 
sent debtor  are  attached  by  process  of  law,  as  to  cases  in  which  an  act  of  bank- 
ruptcy is  committed.'  "' 

And  must  be  likewise  paid  though  the  property  was  abandoned  by  the 
trustee.-^ 

§  2146.  Taxes  on  Exempt  Property  to  Be  Paid. — Taxes  on  exempt 
property  must  be  paid  out  of  the  estate. ^^ 

In  re  Tilden,  1  A.  B.  R.  300,  91  Fed.  501  (D.  C.  Iowa):  "There  is  no  express 
exclusion  of  taxes  against  exempt  property.  The  trustee  is  to  pay  'all  taxes 
legally  due  and  owing  by  the  bankrupt.'  The  creditors,  however,  plead  what 
they  term  the  'injustice'  of  such  a  construction.  The  exempt  property  may  have 
a  large  amount  of  taxes  standing  against  it.  The  estate  receives  no  benefit 
whatever  from  the  "exempt  property.  Where,  as  here,  there  is  no  question  as  to 
the  property  being  exempt,  the  trustee,  if  he  can  in  any  wise  be  properly 
said  to  take  such  property  under  the  adjudication  of  bankruptcy,  takes  it 
only  for  the  purpose  of  at  once  passing  it  out  as  exempt  property.  So 
that,  if  received  by  him  affected  by  the  lien  of  the  taxes,  why  should  the  trus- 
tee pass  it  back  in  a  better  condition  than  he  received  it?  Wherein  is  his 
duty  to  lessen  the  general  estate  in  his  hands,  by  applying  a  part  of  the 
same  to  the  removal  of  said  tax  liens,  and  thus  lessening  the  amount 
otherwise  distributable  to  the  general  creditors?  If  a  machanic's  lien,  or 
other  like  lien,  existed  against  said  exempt  property  the  general  assets 
of  the  estate  would  not  ordinarily  be  thus  lessened  to  effect  the  removal  of  such 
lien.  And  the  creditors  call  attention  to  this  case  as  plainly  showing  the  un- 
just result,  as  they  term  it,  of  the  opposite  construction  of  the  statute.  The 
amount  in  the  hands  of  the, trustee,  if  applied  to  pay  these  taxes  on  this  exempt 
homestead,  will  be  substantially  exhausted,  leaving  barely  sufificient  to  pay  ex- 
penses of  administration  of  the  estate;  and  there  seems  much  force  in  the  argu- 
ment. On  the  other  hand,  the  bankrupt  calls  attention  to  the  letter  of  the  law — 
'all  taxes  legally  due  and  owing  by  the  bankrupt,' — without  any  qualifying 
terms.  And  he  properly  insists  that  the  burden  is  on  the  creditors  to  show 
why  the  statute  does  not  intend  what  its  terms  plainly  state.  He  also  insists 
that  this  paragraph  is  a  manifest  recognition  by  Congress  of  the  proposition 
that,  whether  any  other,  creditor  be  paid  or  not,  the  government — national,  State 
or  municipal — is  to  have  its  taxes  out  of  the  estate.  Again,  the  bankrupt  might 
have  paid  these  taxes  at  any  time  before  filing  his  petition  in  bankruptcy.  If, 
while  on  his  way  to  the  clerk's  office  to  file  such  petition,  he  had  stopped,  at  the 
taxpaying  office,  and  there  paid  these  taxes,  and  thereby  reduced  the  general 
assets  (actualjy  turned  into  the  estate  by  the  amiount  of  those  taxes),  no  one 
could  have  justly  complained.  He  very  effectively  inquires  why  is  the  general 
creditor  now  injured  by  payment  of  these  taxes  out  of  the  estate,  if  their  pay- 
ment, as  above  suggested,  could  not  have  been  complained  of  by  him?" 

§  2147.  Taxes  to  Be  Paid  Out  of  General  Fund  Though  Only  One 
Benefited  Is  Mortgagee,  Purchaser,  etc.— Taxes  upon  property  be- 
longing to  the  estate  will  be  ordered  paid  out  of  the  general  fund  to  the  state 

21.  Compare,  obiter,  in  dissenting  opinion,  City  of  Waco  v.  Bryan,  11  A.  B.  R. 
481,  127  Fed.  79  (C.  C.  A.  Tex.). 

22.  In  re  Baker,  1  A.  B.  R.  526  (Ref.  Tex.).  Compare,  In  re  Veitch,  4  A.  B. 
R.  112,  101  Fed.  251  (D.  C.  Conn.). 


1324  REMINGTON  ON  BANKRUPTCY.  §  2147 

or  municipality  or  federal  government  as  the  case  may  be,  although  the  only 
one  benefited  will  be  a  mortgagee,  or  some  particular  creditor,  or  a  pur- 
chaser of  the  assets.  The  taxes  must  be  paid  and  paid  out  of  the  general 
fund,  and  be  paid  first  before  all  other  claims  of  creditors,  regardless  of 
benefit  or  lack  of  benefit,  lien  or  lack  of  lien.^^ 

Chattanooga  v.  Hill,  15  A.  B.  R.  195,  139  Fed.  600  (C.  C.  A.  Tenn.) :  "But, 
irrespective  of  the  question  of  a  lien,  the  taxes  constituted  a  personal  debt 
against  the  taxpayer  which  can  be  enforced  by  proceedings  in  personam.  The 
Bankrupt  Act  says  that  'all  taxes  legally  due  and  owing  by  the  bankrupt'  shall  be 
paid  by  the  trustee  'in  advance  of  the  payment  of  dividends  to  creditors.'  This 
does  not  say  or  mean  that  such  payment  shall  be  dependent  upon  the  ques- 
tion as  to  whether  they  are  a  secured  debt.  *  *  *  Congress  evidently 
meant  that  the  sovereign  should  neither  be  postponed  nor  delayed  in  the 
collection  of  taxes,  and  therefore  provided  that  the  trustee  should  pay  all 
taxes  due  and  owing  by  the  bankrupt  in  advance  of  dividends.  The  bank- 
rupt might  have  paid  all  taxes  immediately  prior  to  the  filing  of  a  petition 
by  or  against  him.  This  would  not  have  been  a  preference.  The  law  means  that 
the  trustee  shall  do  what  the  bankrupt  might  have  done  and  what  good  citizen- 
ship required  him  to  do.  The  opinions  of  the  courts  are  not  agreed  about  this 
matter,  and  there  are  holdings  which  limit  this  direction  to  pay  'all  taxes  due 
and  owing  by  the  bankrupt'  to  such  taxes  as  constitute  a  lien  upon  the  bank- 
rupt's estate  in  the  hands  of  the  trustee  and  remit  the  sovereign  to  the  en- 
forcement of  any  lien  which  it  may  have  against  property  which  the  trustee 
relinquished  to  the  lien  creditors." 

But  compare,  In  re  Stalker,  10  A.  B.  R.  709,  123  Fed.  961  (D.  C.  N.  Y.) : 
"Some  seemingly  unjust  features  may  be  presented  by  the  application  of  the 
stringent  provisions  of  the  Bankrupt  Act  referred  to,  but,  as  the  law  is  plain 
and  singularly  free  from  ambiguity,  it  is  obvious  fhat  Congress  intended  that 
the  statute  should  be  strictly  construed  and  applied,  unless  the  facts  disclose 
unjust  or  prejudicial  results."  In  this  case  that  portion  of  the  taxes  which  was 
upon  the  real  estate  sold  "subject  to  taxes"  was  excepted. 

Compare  apparently  but  not  really  contra.  In  re  Brinker,  12  A.  B.  R.  122, 
128  Fed.  634  (D.  C.  N.  Y.) :  "Furthermore,  none  of  the  purchasers  of  the  tax 
certificates  are  parties  to  this  proceeding.  Evidently  they  do  not  rely  upon  the 
redemption  of  the  property  by  the  trustee  in  bankruptcy,  or  the  payment  of 
the  taxes  as  a  preferred  claim.  The  taxes  were  paid  by  them  in  full,  and  they 
hold  the  property  taxed  as  security.  What  further  interest  has  the  county  and 
city  in  the  real  estate  in  question?    No  other  or  different  taxes  are  due  and  ow- 

23.  In  re  City  of  Waco  v.  Bryan,  11  A.  B.  R.  481,  127  Fed.  79  (C.  C.  A.  Tex.), 
quoted  supra,  §  2145;  In  re  Prince  &  Walter,  12  A.  B.  R.  679,  131  Fed.  546  (D. 
C.  Pa.);  In  re  Conhaim,  4  A.  B.  R.  58,  100  Fed.  268  (D.  C  Wash.);  In  re  Harvey, 
10  A.  B.  R.  567,  122  Fed.  745  (D.  C.  Penn.);  In  re  Barr  Pumping  Engine  Co.,  11 
A.  B.  R.  312  (Ref.  Penn.);  compare,  In  re  Force,  4  A.  B.  R.  114  (Ref.  Mass.); 
contra,  In  re  Veitch,  4  A.  B.  R.  112,  101  Fed.  251  (D.  C.  Conn.). 

Compare,  contra.  In  re  Stalker,  10  A.  B.  R.  709,  123  Fed.  961  (D.  C.  N.  Y.), 
where  the  doctrine  seems  to  be  laid  down  that  where  injustice  will  be  done, 
the  taxes  will  not  be  ordered  paid  out  of  the  general  estate.  Also,  that  where 
sold  subject  to  taxes,  the  purchaser  will  have  to  pay  the  taxes. 

Compare,  contra.  In  re  Broom,  10  A.  B.  R.  427,  127  Fed.  639  (D.  C.  N.  Y.;. 
Compare  dissenting  opinion  in  City  of  Waco  v.  Bryan,  11  A.  B.  R.  481,  127 
Fed.  59  (C.  C.  A.  Tex.).  Compare,  contra,  where  property  sold  by  trustee  and 
taxes  deducted  from  price,  under  law  of  1867,  Foster  v.  Ingles,  13  N.  B.  Reg. 
239,  Fed.  Cas.  4973. 


§  2148  DISTRIBUTION  TO  cri;ditors.  1325 

ing  them  from  the  estate  of  the  bankrupt.  The  remedy  which  the  county  and 
city  have  elected  for  the  collection  of  the  tax  has  resulted  in  absolutely  wiping 
out  the  unpaid  liens  for  taxes,  and  in  securing,  if  not  absolutely  paying,  their 
claim.  There  is  no  sound  reason  why  the  county  and  city  should  longer  be 
regarded  as  creditors  entitled  to  a  priority  of  payment." 

But  in  the  case  In  re  Brinker,  it  will  be  observed,  it  was  a  purchaser,  not 
the  state  or  municipaHty  itself,  that  was  praying  priority  of  payment.^-' 

It  would  seem  that  the  true  rule  in  cases  of  mortgaged  property  would  be 
that  the  trustee  should  pay  to  the  state,  municipality  or  federal  government 
as  a  priority  claim,  the  taxes  due  it  from  the  bankrupt  out  of  the  general 
fund,  for  he  is  ordered  to  do  so  by  the  express  words  of  the  statute,  and  as 
between  the  state  and  the  bankrupt  estate,  the  bankrupt  estate  is  bound  to 
pay  the  bankrupt's  taxes  as  a  priority  claim,  no  matter  if  the  state  also  has 
a  lien  therefor  on  the  property  itself;  but,  having  done  so,  that  the  trustee 
then  should  be  subrogated  to  the  Hen  of  the  taxes  thus  paid  by  him,  if  there 
be  any  lien  therefor,  as  between  him  and  other  parties.  By  such  subroga- 
tion, the  state  would  get  its  taxes  without  delay ;  the  statute  be  obeyed ;  and 
yet  the  creditors  not  be  prejudiced  nor  mortgagees  unduly  favored.  The 
distinction  must  be  constantly  borne  in  mind  between  the  tax  as  a  priority 
claim  and  as  a  lien  on  property.  As  a  priority  claim  it  is  absolutely  to  be 
paid  first,  regardless  of  liens  or  benefits ;  but  it  is  to  be  paid  solely  to  the 
state  or  municipality  and  is  a  priority  claim  only  in  so  far  as  it  is  ozving  by 
the  bankrupt  himself  to  the  state  or  municipality.  As  a  lien,  on  the  other 
hand,  it  takes  its  place  (although  the  first  place)  among  other  liens;  and 
the  same  rules  and  doctrines  of  subrogation,  etc.,  apply  as  with  other  liens. 

The  court's  reasoning  in  In  re  Brinker,  12  A.  B.  R.  122,  128  Fed.  634 
(D.  C.  N.  Y.),  refusing  to  grant  subrogation  to  the  purchaser,  does  not 
militate  against,  btit  rather  strengthens,  the  above  position,  for  general  cred- 
itors are  forced  to  pay  the  taxes  to  save  their  assets  and  hence  come  within 
the  rules  as  to  subrogation. 

Nor  does  the  ruling  in  In  re  Hollenfeltz,  2  A.  B.  R.  499,  94  Fed.  629  (D. 
C.  Iowa),  refusing  reimbursement  out  of  rents  collected  by  the  trustee  to  a 
purchaser  at  foreclosure  sale  for  taxes 'paid  by  him.,  that  were  a  lien  at  the 
time  of  the  purchase,  militate  against  the  rule,  for  in  that  case,  it  was  not 
the  state  nor  municipality  that  was  claiming  priority,  but  the  purchaser  was 
claiming  subrogation. ^-^ 

§  2148.  But  Such  Absolute  Priority  Belongs  Solely  to  State,  Mu- 
nicipality, etc.,  Not  to  One  Who  Has  Paid,  or  Holds  Tax  Title. — But 

the  right  to  such  priority  of  payment  belongs  solely  to  the  state  or  munic- 

24.  To  same  efifect  as  In  re  Brinker,  see  In  re  Hollenfeltz,  2  A.  B.  R.  499,  94 
Fed.  629   (D.  C.  Iowa). 

25.  But  In  re  Force,  4  A.  B.  R.  114  (Ref.  IVIass.),  a  remainderman  furnishing 
money  for  the  paying  of  taxes  properly  payable  by  the  bank  life  tenant,  and  do- 
ing so  to  save  the  estate,  was  held  entitled  to  subrogation  to  the  lien  of  the 
taxes  thus  paid  off. 


1326  REMINGTON  ON  BANKRUPTCY.  §  2148 

ipality  and  does  not  inure  to  the  benefit  of  one  who  has  paid  the  taxes  to 
the  state  or  municipality  and  is  now  seeking  reimbursement  therefor,  ex- 
cept, perhaps,  where  equity  would  declare  the  right  of  subrogation  to  ex- 
ist.26 

In  re  Brinker,  12  A.  B.  R.  122,  128  Fed.  634  (D.  C.  N.  Y.) :  "Such  sales  were 
made  in  conformity  with  statutory  requirements  providing  for  the  collection 
of  taxes.  The  city  and  countj^  therefore  have  no  real  interest  in  the  contro- 
versy.    They  are  secure.     *     *     * 

"Such  being  the  law,  it  is  clear  that  third  parties,  bidders  at  a  tax  sale,  hold- 
ing tax  certificates  for  their  security,  are  not  entitled  to  relief  out  of  the  assets 
of  the  bankrupt,  much  less,  is  the  purchaser  at  a  foreclosure  sale,  having  full 
knowledge  of  the  tax  liens,  entitled  to  demand  relief  by  the  payment  of  taxes 
ostensibly  to  municipalities,  but  which  in  reality  inure  solely  to  his  benefit,  and 
when  it  may  fairly  be  assumed  that  he  bid  in  the  incumbered  property  subject 
to  existing  liens  for  unpaid  taxes  and  assessments." 

In  re  Wyoming  Valley  Ice  Co.,  16  A.  B.  R.  597  (D.  C.  Pa.):  "But  to  justify 
this,  the  tax  in  plain  terms  must  be  one  which  is  due  from  the  bankrupt,  and  not, 
as  here,  a  mere  liability  for  the  collection  of  it  from  another. 

"The  treasurer  of  every  corporation  doing  business  in  the  State  is  thus 
bound  to  collect,  in  the  manner  prescribed,  from  resident  bondholders,  the 
tax  which  is  so  imposed,  and,  upon  his  failure  to  do  so,  the  corporation  is,  no 
doubt,  liable.  But  the  cases,  one  and  all,  make  it  clear  that  the  obligation  of  the 
corporation  is   one   of  collection   only  and   does   not  make   the   tax  its   own." 

Such  person  must  rely  on  his  lien  if  he  have  any.  He  is  not  entitled  to 
priority  of  payment  out  of  the  general  funds,  except,  perhaps,  where  equity 
would  subrogate  him  thereto.  And  the  mortgagee,  himself  bidding  in  the 
property,  cannot  require  reimbursement  for  taxes  paid  by  him  that  were  a 
lien  at  the  time  he  bid  it  in  even  out  of  the  rent  of  the  mortgaged  property 
collected  meanwhile  by  the  trustee.^'  Similarly,  a  purchaser  at  a  fore- 
closure sale  in  the  state  court,  where  the  court  has  omitted  to  order  taxes 
paid  from  the  proceeds,  will  be  refused  subrogation,  although  he  relied  on 
the  theory  that  the  bankrupt  estate  must  pay  them.^s 

Again,  a  person  paying  taxes  on  real  estate,  bought  by  him  of  the  bank- 
rupt before  bankruptcy  under  covenant  against  encumbrances,  is  not  subro- 
gated to  the  right  of  the  state  to  priority  of  payment  of  taxes  that  the  bank- 
rupt thus  should  have  paid.^^^  Likewise,  where  the  taxes  are  assessed 
against  the  lessor  of  the  bankrupt  but  the  bankrupt  is  under  covenant  to 
pay  the  same,  the  tax  is  not  entitled  to  priority  out  of  the  bankrupt  estate — 
the  debt  of  the  estate  is  to  the  landlord  upon  the  covenant,  not  to  the  mimici- 
pality  or  state  upon  the  tax.^*^ 

26.  Cooper  Grocery  Co.  v.  Bryan,  11  A.  B.  R.  734,  127  Fed.  815  (C.  C.  A. 
Tex.);  compare,  to  same  effect.  In  re  Broom,  10  A.  B.  R.  427,  123  Fed.  639  (D. 
C.  N.  Y.). 

27.  In  re  Hollenfeltz,  2  A.  B.  R.  499.  94  Fed.  629  (D.  C.  Iowa). 

28.  In  re  Brinker,  12  A.  B.  R.  122,  128  Fed.  634  (D.  C.  N.  Y.). 

29.  Cooper  Grocery  Co.  v.  Bryan,  11  A.  B.  R.  734,  127  Fed.  815  (C.  C.  A. 
Tex.). 

30.  In  re  Broom,  10  A.  B.  R.  427,  123  Fed.  639   (D.  C.  N.  Y.). 


§    2149  DISTRIBUTION  TO  CREDITORS.  1327 

And  a  sale  "subject  to  encumbrances"  includes  a  lien  for  taxes ;  and  the 
purchaser  has  no  standing  to  apply  for  an  order  to  pay  the  taxes  out  of  the 
general  estate.^  ^  Much  less  would  such  a  purchaser  have  standing  to  apply 
for  reimbursement,  where  he  has  already  paid  the  taxes,  even  though  the 
court  might  have  ordered  payment  of  taxes  out  of  the  proceeds  of  sale  but 
did  not  do  so.^^ 

But,  where  a  sale  of  a  stock  of  goods  by  the  trustee  in  bulk  is  made  "free 
and  clear,"  there  being  no  provision  in  the  order  for  payment  of  taxes  from 
the  proceeds,  the  state  law  fixing  a  lien  therefor  on  the  goods  sold,  the  pur- 
chaser is  entitled  to  have  the  tax  lien  paid  out  of  the  proceeds.^-*^ 

Of  course,  such  payment  would  be  by  way  of  payment  of  the  tax  lien, 
not  by  way  of  payment  of  the  tax  as  a  priority  claim.  It  is  constantly  to  be 
borne  in  mind  that  a  tax  may  be  not  only  a  "priority"  claim;  but,  if  a  lien, 
also  a  "secured"  claim,  and  that  the  present  propositions  are  concerned  with 
it  simply  as  a  "priority"  claim. 

§  2149.  But  "Subrogation"  to  Tax  Lien  Sometimes  Proper. — But 

a  remainderman  or  other  party  in  interest,  paying  or  furnishing  money, 
for  the  paying  of  taxes,  that  ought  to  have  been  paid  by  the  bankrupt,  in 
order  to  save  the  estate,  may  be  entitled  tO  subrogation  to  the  amount  of  the 
tax  lien  so  paid. 

In  re  Force,  4  A.  B.  R.  114  (Ref.  Mass.):  "When  the  trustee  was  appointed, 
the  taxes  for  1898  were  due  and  unpaid,  and  I  think  it  was  his  duty  to  pay  them 
out  of  the  first  money  that  came  into  his  hands  to  a  sufficient  amount,  and  as 
the  taxes  for  1899  became  a  lien  upon  the  property  during  his  trusteeship,  I 
think  it  would  have  been  his  duty  to  pay  those  also,  if  lie  had  the  requisite 
funds.  Re  Tilden,  1  Am.  B.  R.  300;  .Re  Baker,  1  Am.  B.  R.  526.  Nothing  was 
paid  by  him,  however,  on  account  of  these  taxes,  but  they  have  been  paid  as 
above  stated,  and  the  amount  deducted  from  what  the  petitioning  heirs  would 
have  received  from  the  proceeds  of  the  sale  of  the  property  above  the  amount  of 
the  incumbrance  upon  it.  This,  I  think,  may  be  taken  to  be  so  far  a  pay- 
ment on  their  part  of  these  taxes  as  to  give  them  an  equitable  claim  upon  the 
funds  in  the  trustee's  hands,  according  to  the  doctrine  of  subrogation,  which 
is,  as  stated  in  Sheldon  on  the  Law  of  Subrogation,  §  11,  that  'one  who  has  been 
compelled  to  pay  a  debt  which  ought  to  have  been  paid  by  another,  is  entitled 
to  indemnity  from  the  funds  out  of  which  should  have  been  made  the  payment 
v/hich  he  has  made.'     It  is  true  that  these  petitioners  did  not  actually  pay  the 

31.  In  re  Hollenfeltz,  2  A.  B.  R.  499.  94  Fed.  629  (D.  C.  Iowa);  In  re  Stalker, 
10  A.  B.  R.  709,  123  Fed.  961   (D.  C.  N.  Y.). 

32.  In  re  Gerry,  7  A.  B.  R.  459,  112  Fed.  958  (D.  C.  Penn.);  In  re  Hollenfeltz, 
2  A.  B.  R.  499,  94  Fed.  629  (D.  C.  Iowa). 

Sale  of  several  parcels  for  lump  sum,  the  owner  of  the  lien  for  taxes  upon 
some  of  the  parcels  having  notice  and  not  objecting  thereto,  and  the  sale  being 
"subject  to  encumbrances,"  such  lienholder  is  not  entitled  to  payment  out  of 
the  proceeds,  it  being  impossible  to  identify  the  fund  derived  from  the  sale 
of  his  two  parcels  from  the  rest.  In  re  Gerry,  7  A.  B.  R.  461,  112  Fed.  958  (D. 
C.  Penn.). 

33.  In  re  Keller,  6  A.  B.  R.  351,  109  Fed.  131  (D.  C.  Iowa).  Compare,  to  same 
efifect,  In  re  Hilberg,  6  A.  B.  R.  714  (Ref.  Pa.). 


1328  REMINGTON  OX  BANKRUPTCY.  §  2150 

money,  but  the}'^  are  left  in  the  same  position  financially  as  if  they  had.  The 
life  tenant  should  have  paid  these  taxes  out  of  the  rents,  and  this  duty  devolved 
upon  the  trustee,  if  not  as  a  burden  attached  to  the  life  estate,  j^et  it  neverthe- 
less became  such  under  the  specific  terms  of  the  Bankrupt  Act,  and  if  they  were 
not  paid,  the  property  could  and  would  have  been  sold  by  the  city  at  the  ex- 
pense of  the  remaindermen.  Such  a  sale  was  not,  in  fact,  made,  but  in  ac- 
counting for  the  proceeds  of  the  foreclosure  sale,  the  mortgagee  deducted  the 
amount  of  the  taxes,  thus  giving  these  petitioners,  as  I  believe,  an  equitable 
standing." 

Or  a  mortgagee,  judgment  creditor  or  even  general  creditor,  may  like- 
wise be  entitled  to  subrogation  if  he  makes  the  payment  to  save  the  estate, 
or  otherwise  makes  it  under  circumstances  entitling  him  to  subrogation  in 
equity. 

Obiter,  inferentially.  In  re  Brinker,  12  A.  B.  R.  122,  128  Fed.  634  (D.  C.  X.  Y.) : 
"Nor  does  the  principle  of  the  right  of  equitable  subrogation  have  application 
here.  Acer  v.  Hotchkiss,  97  X.  Y.  396.  The  purchasers  of  the  tax  certificates 
were  not  obliged  to  bid  in  the  property  at  thetax  sale  in  order  to  protect 
themselves.  They  were  not  mortgagees  or  judgment  creditors,  or  even  cred- 
itors, of  the  bankrupt.  They  are  third  parties  to  the  transaction,  pure  and 
simple,  and  accordingly  cannot  invoke  the  aid  of  the  doctrine  of  subroga- 
tion. Furthermore,  none  of  the  purchasers  of  the  tax  certificates  are 
parties  to  this  proceeding.  Evidently  they  do  not  rely  upon  the  redemption 
of  the  property  by  the  trustee  in  bankruptcy,  or  the  paj^ment  of  the  taxes  as 
a  preferred  claim.  The  taxes  were  paid  by  them  in  full,  and  they  hold  the 
property  taxed  as  security." 

But  such  right  of  subrogation  would  not  exist,  of  course,  in  favor  of  a 
mere  purchaser,  though  he  bought  in  reliance  upon  the  estate  being  obliged 
to  pay  the  taxes.^^ 

§  2150.  Must  Be  Owing  by  Bankrupt  and  Assessed  against  Him. — • 

The  tax  must  be  owing  by  the  bankrupt  and  be  owing  by  him  to  the  mu- 
nicipal, state  or  federal  government;  and  a  mere  obligation  on  the  bank- 
rupt's part,  as  tenant  for  instance,  to  pay  the  tax  levied  upon  the  property 
in  the  landlord's  name,  does  not  entitle  the  tax  to  priority  of  payment  oiit 
of  the  tenant's  estate,  the  debt  of  the  estate  being  upon  the  covenant,  not 
upon  the  tax. 

In  re  Broom,  10  A.  B.  R.  428,  123  Fed.  639  (D.  C.  N.  Y.) :  "The  only  liabil- 
ity of  the  bankrupt  for  the  taxes  specified,  and  which  is  sought  to  be  allowed 
as  a  preferred  claim,  is  a  contractual  one  between  the  bankrupt  and  the  Flour 
-City  Xational  Bank,  and  therefore  cannot  be  regarded  as  a  tax  owing  from  the 
bankrupt  to  any  municipality,  within  the  provisions  of  §  64  (a). 

But  while  such  tax  may  not  be  entitled  to  priority  of  payment  as  a  "pri- 
ority" claim  under  §  64  (a),  yet,  if  it  be  also  a  lien  on  the  property,  its 
security  will,  of  course,  remain  unimpaired. 

34.    In  re  Brinker,  12  A.  B.  R.  122,  128  Fed.  634  (D.  C.  X.  Y.). 


§    2152  DISTRIBUTION  TO  CREDITORS.  1329 

§  2151.  Firm  Taxes  in  Individual  Bankruptcies. — Where  the  state 
law  makes  a  partner  individually  hable  for  taxes  assessed  against  the  firm, 
they  must  be  paid  fi-om  his  individual  estate  in  bankruptcy  as  a  priority 
claim.^5^ 

§  2152.  Funds  in  Hands  of  Trustee  Taxable,  Where  Taxable  if 
Similarly  Sequestrated  by  State  Legal  Proceedings. — Funds  in  the 
hands  of  the  trustee  are  taxable  which  would  be  taxable  in  that  particular 
taxing  district,  if  similarly  sequestrated  by  other  legal  custody.^^ 

In  re  Sims,  9  A.  B.  R.  162,  118  Fed.  356  (D.  C.  Ga.),  where  the  court  says: 
"It  does  not  follow,  of  course,  that  all  moneys  deposited  in  the  registry  of  the 
court  or  designated  depository  of  the  courts  are  subject  to  taxation.  Much 
of  it  belongs  to  nonresidents,  and  would  not  be  subject  to  state  taxes  merely 
because  impounded  in  litigation.  But  when  a  fund  is  held  by  a  trustee  in  bank- 
ruptcy or  other  fiduciary  agent  of  the  court,  which,  but  for  the  litigation,  would 
have  been  liable  for  taxation  in  a  particular  taxing  district,  we  see  no  reason 
why  the  court  should  not,  on  proper  application,  direct  the  payment  of  current 
assessments  of  valid  taxes." 

Swarts  V.  Hammer,  9  A.  B.  R.  691,  120  Fed.  256  (C.  C.  A.  Mo.):  "The  money 
was  clearly  liable  to  be  taxed  under  the  State  law  and  the  tax  is  valid  and  col- 
lectible, unless  the  Bankrupt  Act  exempts  it  from  taxation.  Exemption  from 
taxation  is  never  presumed.  The  legislative  intent  to  exempt  property  from 
taxation  must  be  clearly  and  explicitly  expressed.  Whether  Congress  could 
rightfully  exempt  from  State  taxation  the  property  of  a  bankrupt  in  the  hands 
of  a  trustee  in  bankruptcy,  and  otherwise  subject  to  taxation,  we  need  not  in- 
quire. It  has  not  attempted  to  do  so,  and  it  is  highly  probable  it  never  will. 
The  power  of  taxation,  as  well  as  the  power  to  exempt  from  taxation,  is  a  leg- 
islative, and  not  a  judicial,  function;  and  a  bankrupt  court,  no  more  than  any 
other  court,  can  exempt  from  taxation  property  in  the  hands  of  one  of  its  of- 
ficers which  is  liable  to  taxation  under  the  State  Law.  It  has  never  been  ques- 
tioned, but  what  property  in  the  custody  and  control  of  receivers  and  trustees 
of  the  Federal  courts  was  subject  to  taxation  under  the  State  law,  the  same  as 
other  like  property.  Judson  on  Taxation,  §  407,  and  cases  cited.  And  this 
applies  to  trustees  in  bankruptcy  as  well  as  receivers  and  trustees  in  other 
cases  and  proceedings  in  the  Federal  courts.  It  is  »a  grave  mistake  to  suppose 
that  property  in  the  possession  and  custody  of  an  officer  of  the  Federal  court 
by  that  single  fact  enjoys  immunity  from  taxation." 

Swarts  V.  Hammer,  11  A.  B.  R.  708,  194  U.  S.  441,  affirming  9  A.  B.  R.  691: 
"By  the  transfer  to  the  trustee,  no  mysterious  or  peculiar  ownership  or  qual- 
ities are  given  to  the  property.  It  is  dedicated,  it  is  true,  to  the  payment  of 
the  creditors  of  the  bankrupt,  but  there  is  nothing  in  that  to  withdraw  it  from 
the  necessity  of  protection  by  the  State  and  municipality  or  which  should  ex- 
empt it  from  its  obligations  to  either." 

In  re  Prince  &  Walter,  12  A.  B.  R.  679,  131  Fed.  546  (D.  C.  Pa.):  "But 
the    Bankruptcy    Act    does    not    withdraw    the    estates    of    bankrupts    from    the 

35.  In  re  Green,  8  A.  B.  R.  553,  116  Fed.  118  (D.  C.  Iowa). 

36.  In  re  Fisher  &  Co.,  17  A.  B.  R.  412  (D.  C.  N.  J.);  inferentially.  to  same 
effect,  In  re  Keller,  6  A.  B.  R.  351,  109  Fed.  131  (D.  C.  Iowa);  City  of  Waco  v. 
Bryan,  11  A.  B.  R.  481,  127  Fed.  79  (C.  C.  A.  Tex.). 

2  Rem  B— 9 


1330  re;mington  on  bankruptcy.  §  2155, 

reach  of  the  taxing  power,  and  they  are  subject  in  consequence,  to  the  payment 
of  taxes  imposed  while  they  are  in  the  hands  of  trustees,  the  same  as  if  they 
were  not.  *  *  *  Even  though  accruing  after  bankruptcy,  they  must  be  re- 
garded as  within  the  meaning  of  the  statute,  and  entitled  to  priority,  the  same 
as  those  which  antedate  it." 

In  re  Conhaim,  4  A.  B.  R.  59,  100  Fed.  268  (D.  C.  Wash.):  "The  manifest 
intent  of  the  law  is  that,  while  the  estate  is  in  the  hands  of  the  trustee,  his 
custody  shall  not  constitute  a  barrier  to  prevent  the  collection  of  taxes  which 
would  be  collectible  under  the  law  if  the  property  had  remained  in  the  pos- 
session and  control  of  the  bankrupt  himself." 

§  2153.  "Tax"  Includes  Assessment  for  Local  Improvements. — 
'"Tax"  as  meant  in  the  Bankruptcy  Act  includes  an  assessment  for  local 
improvements.^' 

§  2154.  Nature  of  Tax,  Whether  License,  Penalty  or  Tax,  Gener- 
ally Determined  by  Sta^te  Law. — The  nature  of  a  "tax,"  whether  a 
mere  license,  or  actually  a  tax,  is,  in  general,  to  be  determined  by  the  law 
of  the  state  imposing  it.^^ 

In  re  Ott,  2  A.  B.  R.  637,  95  Fed.  274  (D.  C.  Iowa):  "We  now  turn  to  the 
consideration  of  the  construction  of  this  statute  by  the  Supreme  Court,  the  high- 
est judicial  tribunal  of  the  State.  Such  construction,  if  directly  and  positively 
given,  and  upon  the  sections  above  cited  with  respect  to  the  question  herein 
involved  ["mulct  tax"]  is  at  least  to  be  given  careful  and  weighty  consideration, 
and  may  control  the  decision  reached  herein.  Indeed,  the  opposing  creditors 
contend  it  must  control  such  decision." 

In  re  Stalker,  10  A.  B  R.  709,  123  Fed.  96  (D.  C.  N.  Y.)  :  "This  question  is 
broad  [whether  "assessment"  a  "tax"]  and  might  be  of  much  difficulty,  were 
it  not  that  the  interpretation  adopted  by  the  highest  tribunal  of  the  State,  must 
govern  here.  It  is  an  established  rule  in  the  courts  of  the  United  States  that 
the  decisions  of  the  State  courts  with  regard  to  the  law  of  real  estate,  con- 
struction of  State  constitutions  and  statutes,  are  authoritative  rules  of  what  the 
law  is." 

Thus,  water  rates  have  been  held'  to  be  "taxes"  in  New  York,  but  to  be 
taxes  against  the  landlord  and  not  entitled  to  priority  of  payment  out  of 
the  bankrupt  tenant's  estate.^^  And  the  "Mulct  tax"  of  Iowa  has  been 
held  not  to  be  a  "tax"  entitled  to  priority  of  payment,  but  a  mere  license 
fee  to  conduct  a  saloon.'**' 

§  2155.  But  Not  Al'ways. — But  if  the  legislature  of  a  state  gives  the 
name  of  "tax"  to  an  exaction  which  is  not  a  tax,  and  the  courts  of  the 
state  join  in  the  misnomer,  the  bankruptcy  courts,  nevertheless,  are  not  re- 
quired to  disregard  the  substance  of  the  thing  to  the  detriment  of  other 
claimants."*^ 

37.  In  re  Stalker.  10  A.  B.  R.  709,  123  Fed.  961  (D.  C.  N.  Y.). 

38.  First  Nat'l  Bk.  v.  Aultman,  Miller  &  Co.,  12  A.  B.  R.  12  (Ref.  Ohio): 
A  case  of  franchise  tax. 

39.  In  re  Broom,  10  A.  B.  R.  427.  123  Fed.  639   (D.  C.  X.  Y.). 

40.  In  re  Ott,  2  A.  B.  R.  637,  95  Fed.  274  (D.  C.  Iowa). 

41.  In  re  Cosmopolitan  Power  Co.,  14  A.  B.  R.  604,  137  Fed.  858  (C.  C.  A. 
Ills.,  affirming  13  A.  B.  R.  39,  but  itself  reversed,  on  other  grounds,  in  State  of 
N.  J.  V.  Anderson,  17  A.  B.  R.  68,  203  U.  S.  483). 


§    2156  DISTRIBUTION  TO  CREDITORS.  1331 

State  of  N.  J.  V.  Anderson,  17  A.  B.  R.  68,  203  U.  S.  483:  "It  is  doubtless  true, 
as  was  said  in  the  opinion  of  the  learned  judge  speaking  for  the  Circuit  Court 
of  Appeals,  in  this  case,  that  if  the  highest  court  of  the  State  should  decide 
that  a  given  statute  imposed  no  tax  within  the  meaning  of  the  law  as  interpreted 
by  it,  a  Federal  court,  in  passing  upon  the  Bankruptcy  Act,  would  not  compel 
the  State  to  accept  a  preference  from  the  bankrupt's  estate  upon  a  different 
view  of  the  law.  Conceding  the  doctrine  that  the  meaning  of  a  statute  is  a 
State  question,  except  where  rights,  the  subject  of  adjudication  by  the  Federal 
courts,  have  accrued  before  its  construction  by  the  State  court,  or  the  ques- 
tion of  contract  within  the  protection  of  the  Federal  Constitution  is  involved, 
still  a  Sta,te  court,  while  entitled  to  great  consideration,  can  not  conclusively 
decide  that  to  be  a  tax  within  the  meaning  of  a  Federal  law,  providing  for  the 
payment  of  taxes,  which  is  not  so  in  fact." 

§  2156.  Thus,  Franchise  Tax. — Thus,  it  has  finally  been  settled  by 
the  Supreme  Court  of  the  United  States,  although  with  a  strong  dis- 
senting opinion  that  the  so-called  "franchise  tax''  of  New  Jersey,  a  type 
of  many  similar  impositions,  is  a  "tax"  within  the  meaning  of  §  64  (a).'^- 

State  of  N.  Jersey  v.  Anderson,  17  A.  B.  R.  68,  203  U.  S.  483  (reversing  In  re 
Cosmopolitan  Co.,  14  A.  B.  R.  604,  137  Fed.  858,  C.  C.  A.  Ills.):  "We  are  of 
opinion  that  this  claim  was  for  a  tax.  The  language  of  the  Act,  as  we  have 
said,  is  very  broad  and  includes  all  taxes.  It  is  not  necessary  to  enter  upon  a 
discussion  of  the  diflferent  forms  which  taxes  may  take.  Generally  speaking, 
a  tax  is  a  pecuniary  burden  laid  upon  individuals  or  property  for  the  purpose 
of  supporting  the  government.  We  think  this  exaction  is  of  that  character.  It 
is  required  to  be  paid  by  the  corporation  after  organization,  in  invitum.  The 
amount  is  fixed  by  the  statute,  to  be  paid  on  the  outstanding  capital  stock  of 
the  corporation  each  A'ear,  and  capable  of  being  enforced  by  action  against  the 
will  of  the  taxpayer.     *     *     * 

"It  is  urged  by  the  appellee,  and  upon  this  ground  the  case  was  decided  in 
the  Circuit  Court  of  Appeals,  that  this  is  in  no  just  sense  a  tax  levied  by  the 
State,  but  is  the  result  of  a  contract  by  which  the  corporation  was  brought  into 
existence,  the  consideration  being  the  payment  of  annual  sums  for  the  privileges 
given  by  the  State,  for  which  no  lien  is  given  upon  the  property,  but  only  a 
right  of  action  for  their  recover^^  But  this  imposition  is  in  no  just  sense  a 
contract.  The  amount  to  be  paid,  fixed  by  the  statute,  is  subject  to  control 
and  change  at  the  will  of  the  State.  It  is  imposed  upon  all  corporations, 
whether  organized  before  or  after  the  passage  of  the  Act.  The  corporation 
is  not  consulted  in  fixing  die  amount  of  the  tax,  and  under  the  laws  of  New 
Jersey  the  charter  of  sucl-^Hb-porations  as  this  may  be  amended  or  repealed." 


Although  the  strong  dissenting  opinion  expressed  by  Justice  Harlan  is 
to  be  noted : 

"The  Chief  Justice,  ]\Ir.  Justice  Peckham  and  myself  dissent  from  the  opin- 
ion of  the  court.  In  our  judgment  the  'taxes'  owing  by  a  bankrupt  to  a  State 
• — which  §  64a  of  the  Bankruptcy  Act  provides  shall  be  paid  in  advance  of  the  pay- 
ment of  dividends  to  creditors — do  not  embrace  an  "annual  license  fee  or  franchise 
tax'  (the  words  of  the  New  Jersey  statute),  which,  strictly,  is  not  a  property  tax, 

42.  In  re  Mutual  Mercantile  Agency,  8  A.  B.  R.  435  (Ref.  N.  Y.) ;  contra,  In 
re  Danville  Rolling  Mill  Co.,  10  A.  B.  R.  327,  121  Fed.  432   (D.  C.  Pa.). 


1332  REMINGTON  ON   BANKRUPTCY.  ^  2159 

but  only  an  exaction  bj^  the  State  for  the  privilege  given  to  a  corporation  to  do 
certain  business  under  its  charter.  We  think  the  Bankruptcy  Act  should  be  so- 
construed.  It  cannot  be  otherwise  construed  without  doing  gross  injustice  to 
those  creditors  of  the  bankrupt  corporation  who  have  business  transactions 
with  it  at  its  place  of  business.  Here  the  bankrupt  corporation  did  no  business 
in  New  Jersey.  So  far  as  appears,  it  did  not  have,  nor  expect  to  have,  any 
connection  with  that  State  except  to  become  incorporated  under  its  laws.  It 
had  its  seat  of  operations  and  all  its  tangible  property  in  the  State  of  Illinois. 
It  had  no  property  in  New  Jersey.  Its  scheme  was  to  get  a  charter  from  New 
Jersey  and  then  go  to  another  State  for  purposes  of  its  business.  We  do  not 
think  that  Congress  intended  that  in  the  distribution  of  the  assets  of  ^  bankrupt 
preference  should  be  given  to  the  claims  of  a  State  which  have  their  origin  in 
and  are  wholly  based  upon  a  bargain  with  the  State  whereby  certain  privileges 
are  granted  in  exchange  for  certain  payments — privileges  which  the  State  may 
grant  or  withhold  at  pleasure.  In  our  opinion  the  word  'taxes'  in  the  Bank- 
ruptcy Act  was  intended  to  embrace  only  burdens  or  charges  imposed  in  in- 
vitum  and  which  were  in  their  nature  and  in  reality  'taxes,'  as  distinguished 
from  governmental  exactions  for  privileges  granted.  The  claim  of  New 
Jersey,  whatever  its  true  amounts,  should  not  be  given  priority,  but  should  be 
placed  upon  the  same  footing  with  claims  of  other  creditors.  This  view  is  con- 
sistent with  the  Act  of  Congress." 

And  it  has  been  held  entitled  to  priority  as  a  tax.  even  thongh  it  is  not 
assessed  until  after  the  adjudication,  if  for  a  period  anterior  thereto. ^^ 

§  2157.  But  Bankruptcy  Court,  Forum  as  to  Amount  and  Legality 
of  Tax. — But  the  Bankruptcy  Court  is  the  forum  for  the  determination 
of  the  validity  of  the  tax  and  all  questions  in  relation  thereto.^'^ 

§  2158.  And  Decision  of  State  Board  of  Assessment  Not  "Res 
Judicata." — The  determination,  after  due  hearing,  before  bankruptcy, 
by  the  State  Board  of  Assessment  or  other  state  tribunal  having  in  charge 
the  settlement  of  disputes  over  the  amount  of  taxes,  is  not  res  ad  judicata 
in  bankruptcy.-*^ 

§  2159.  Nor  Is  Failure  to  Pursue  Statutory  Appeal  or  Abatement 
Fatal. — Nor  is  the  previous  failure  of  the  bankrupt  to  follow  the  pre- 
scribed statutory  method  for  obtaining  review  or  abatement  of  the  tax, 
fatal  to  the  re-examination  in  bankruptcy .■*"        "'. 

43.  State  of  N.  Jersey  v.  Anderson.  17  A.  B.  R.  68.  203  U.  S.  483;  contra.  First 
Nat'l  Bk.  V.  Aultman-Miller  &  Co.,  12  A.  B.  R.  12  (Ref.  Ohio). 

44.  Bankr.  Act,  §  64  (a):  "And  in  case  any  question  arises  as  to  the  amount 
or  legality  of  any  such  tax,  the  same  shall  be  heard  and  determined  by  the 
court." 

State  of  New  Jersey  v.  Anderson,  17  A.  B.  R.  68,  203  U.  S.  483;  In  re  Cos- 
mopolitan Power  Co.,  14  A.  B.  R.  604,  137  Fed.  858  (C.  C.  A.  Ills.,  affirming  13 
A.  B.  R.  39);  In  re  Selwyn  Importing  Co.,  18  A.  B.  R.  191  (Ref.  N.  Y.). 

45.  State  of  N.  Jersey  v.  Anderson,  17  A.  B.  R.  68,  203  U.  S.  483;  In  re  Cos- 
mopolitan Power  Co.,  14  A.  B.  R.  604,.  137  Fed.  858  (C.  C.  A.  Ills.,  affirming  13 
A.  B.  R.  39). 

46.  In  re  Selwyn  Importing  Co.,  18  A.  B.  R.  191  (Ref.  N.  Y.). 


^    2160  DISTRIBUTION  TO  CREDITORS.  1333 

§  2160.  Whether  Taxes  "Provable"  Debts. — ^^'hether  taxes  are 
provable  debts  strictly  so  called,  and  within  the  bankruptcy  meaning,  is 
doubtful.  There  is  considerable  strength  in  the  contention,  however,  that 
they  are  provable  "debts"  or  "demands"  although  the  form  of  proof 
thereof  and  the  limitations  as  to  time,  etc.,  be  not  the  same  as  in  cases  of 
other  debts.  To  be  sure,  §  63.  defining  "provable"  debts,  does  not  mention 
taxes,  and  they  are  thus  not  within  the  letter  of  §§  1  (9)  and  (11),  de- 
fining "debt"  as  being  "any  debt,  claim  or  demand  provable"  in  bank- 
ruptcy and  "creditor"  as  being  the  "owner"  of  such  provable  debt,  yet 
§  17,  in  enumerating  the  obligations  excepted  from  the  operation  of  a 
discharge  in  bankruptcy,  says  "all  provable  debts  except  (1)  taxes,  etc.," 
thus  furnishing  the  implication  that  taxes  are  provable  debts.-^'^ 

Obiter,  In  re  United  Button  Co.,  15  A.  B.  R.  400,  140  Fed.  495  (D.  C. 
Del.):  "A  tax  is  not  strictly  a  debt.  It  lacks  the  nature  of  a  debt  in  that, 
though  for  a  sum  certain,  it  is  not  founded  upon  anj^  agreement  or  assent  of 
the  person  or  persons  against  whom  it  is  assessed,  but  is  a  burden  for  public 
purposes  imposed  in  invitum.  As  an  obligation  or  duty  created  by  statute  to 
pay  money,  however,  it  is  quasi  contractual,  although  there  may  be  difficulty 
as  to  the  remedy  for  its  enforcement  in  a  given  case.  Keener,  in  his  work  on 
Quasi-Contracts,  p.  16,  states  that  'a  statutory  obligation  which  does  not  rest 
upon  the  consent  of  the  parties,  is  clearly  quasi  contractual  in  its  nature.'  This 
proposition  is  illustrated  by  the  case  of  a  statutory  demand  for  half  pilotage 
for  refusal  to  accept  the  services  of  a  pilot.  Steamship  Co.  v.  Jolifife,  2  Wall. 
450,  457.  There  has  been  much  conflict  in  the  decisions  with  respect  to  pro- 
cedure for  the  collection  of  taxes,  where  no  statutory  mode  has  been  prescribed, 
and  also  upon  the  point  whether  and  under  what  circumstances,  notwithstanding 
the  existance  of  a  statutory  mode,  the  general  principles  of  law  will  furnish  an 
alternative  or  cumulative  remedy  by  action.  These  matters  of  dispute,  however 
interesting  in  themselves,  are  unimportant  here.  The  procedure  is  supplied 
by  the  Bankruptcy  Act.  Section  64,  which  deals,  among  other  things,  with  the 
priority  of  debts  and  demands  against  the  estate  of  a  bankrupt,  provides,  in 
paragraph  a,  fpr  the  pa3'ment  by  the  trustee  under  the  order  of  the  court  of 
'all  taxes  legally  due  and  owing  by  the  bankrupt  to  the  United  States,  state, 
county,  district  or  municipality,  in  advance  of  the  payment  of  dividends  to 
creditors,'  and  that  'in  case  any  question  arises  as  to  the  amount  or  legality 
of  any  such  tax  the  same  shall  be  heard  and  determined  by  the  court.'  Thus, 
the  taxes  enumerated  in  §  17,  'legally  due  and  owing  by  the  bankrupt,'  by  § 
64  are  directed  to  be  paid  out  of  the  estate,  by  §  17  are  recognized  as  'provable 
debts,'  and  are  demands  of  a   quasi   contractual  nature.     While   strict  or  tech- 

47.  In  re  Cleanfast  Hosiery  Co.,  4  A.  B.  R.  702  (Ref.  N.  Y.)  ;  compare,  query, 
Ir.  re  Beddingfield,  2  A.  B.  R.  355;  compare.  In  re  Prince  &  Walter,  12  A.  B.  R. 
679   (D.  C.  Pa.),  quoted  at  §  2161. 

Compare,  in  other  connection,  however,  Meriwether  v.  Garrett,  102  U.  S.  472: 
"Taxes  are  not  debts.  It  was  so  held  by  this  court  in  the  case  of  Oregon  v. 
Lane  County,  reported  in  7  Wallace.  Debts  are  obligations  for  the  payment  of 
money  founded  upon  contract,  express  or  implied.  Taxes  are  imposts  levied 
for  the  support  of  the  government,  or  for  some  special  purpose  authorized  by  it. 
The  consent  of  the  taxpayer  is  not  necessary  to  their  enforcement.  They  oper- 
ate in  invitum.  Nor  is  their  nature  affected  by  the  fact  that  in  some  States — 
and  we  believe  in  Tennessee — an  action  of  debt  may  be  instituted  for  their  re- 
covery.    The  form  of  procedure  cannot  change  their  character." 


1334  RKMIXGTON  ON  BANKRUPTCY.  §  2162 

nical  'proof  of  them  is  not  required,  although  often  presented,  there  can  be 
no  doubt  that  they  are  to  be  treated  as  provable  debts  or  demands  embraced  in 
the  class  'founded  upon  an  open  account,  or  upon  a  contract  express  or  im- 
plied.' " 

In  re  Fisher  &  Co.,  17  A.  B.  R.  411,  148  Fed.  907  (D.  C.  N.  J.):  "While 
taxes  are  not  in  a  strict  sense,  debts,  they  are  so  denominated  in  the  Bankruptcy 
Act.  Section  17  *  *  *  Section  64  *  *  *  and  §  1  declare  that  the  word 
"debt"  shall  include  any  debt,  demand  or  claim  provable  in  bankruptcy. 
Of  course  a  tax  is  provable  in  bankruptcy." 

Contra,  In  re  Kallak,  17  A.  B.  R.  415,  147  Fed.  276  (D.  C.  N.  Dak.):  "*  *  * 
public  taxes  do  not  constitute  a  'claim'  in  bankruptcy." 

§  2161.  No  Formal  "Proof"  Required:  Trustee  Must  Search  for 
Taxes. — Taxes  need  not  be  sworn  to  and  no  formal  proof  of  claim  is 
required.  It  is  the  trustee's  duty  to  search  for  taxes  and  his  only  neces- 
sary voucher  is  the  ordinary  receipt  for  taxes.^^ 

In  re  Prince  &  Walter,  12  A.  B.  R.  679,  131  Fed.  546  (D.  C.  Penn.) :  "And 
the  Bankruptcy  Act  evidently  does  not  contemplate  that  they  shall  be  proved 
like  an  ordinary  debt;  providing,  as  it  does,  that  they  shall  be  paid  by  the  trus- 
tee on  the  order  of  the  court,  and  that  he  shall  have  credit  in  his  accounts  upon 
filing  the  receipts  of  the  proper  officers  therefor." 

In  re  Cleanfast  Hosiery  Co.,  4  A.  B.  R.  702  (Ref.  N.  Y.) :  "Section  64  of  the 
Act  relates  specifically  to  taxes,  and  provides  a  special  method  for  their  pay- 
ment, to  wit,  that  the  court  shall  order  the  trustee  to  pay  them,  and  that  the 
receipt  of  the  proper  officer  shall  entitle  the  trustee  to  a  credit  for  the  amount 
paid.  A  formal  proof  of  claim,  as  in  case  of  provable  debts  generally,  is  not 
specifically  required;  in  fact,  the  latter  provision  as  to  a  receipt  by  the  proper 
officer  would  seem  to.  imply,  that  none  is  necessary,  and  no  time  limit  is  imposed. 
I  think  this  section  should  in  these  respects  control,  rather  than  §  57,  subdi- 
vision 'n,'  above  mentioned,  prescribing  the  rule  as  to  provable  debts  as  a  class, 
under  the  familiar  rule  of  construction,  that  a  statutory  provision  as  to  a  gen- 
eral class  must  give  way  to  a  special  provision  relating  to  one  of  the  class." 

In  re  Harvey,  10  A.  B.  R.  567,  122  Fed.  745  (D.  C.  Pa.) :  "An  adjudication  in 
bankruptc}^  does  not  affect  such  a  lien,  nor  impose  upon  the  city  the  duty  of 
proving  its  claim  as  an  ordinary  creditor  must  do." 

In  re  Fisher  &  Co.,  17  A.  B.  R.  413,  148  Fed.  907  (D.  C.  X.  J.):  "*  *  * 
and  the  injunction  of  §  64  (a)  is  that  the  court  'shall  order'  the  trustee  to  pay 
them.  It  seems  to  be  the  duty  of  the  court  to  require  such  payment,  even 
though  no  claim  for  the  same  shall  have  been  presented  in  the  manner  or  within 
the  time  prescribed  by  the  Bankruptcy  Act  for  the  filing  of  claims." 

§  2162.  Year's  Limitation  for  "Proofs"  Not  Applicable  to  Taxes. 

— The  limitation  of  one  year  for  the  proof  of  claims  does  not  apply  to 
taxes.'*  9 

48.  Bankr.  Act,  §  64  (a) :  "Upon  filing  the  receipts  of  the  proper  public  offi- 
cers for  such  payment  he  shall  be  credited  with  the  amount  thereof,  and  in 
case  any  question  arises  as  to  the  amount  or  legality  of  any  such  tax  the  same 
shall  be  heard  and  determined  by  the  court." 

In  re  Kallak,  17  A.  B.  R.  415,  147  Fed,  276  (D.  C.  N.  Dak.).  Compare,  post, 
§  2192. 

49.  In  re  Cleanfast  Hosiery  Co.,  4  A.  B.  R.  702  (Ref.  N.  Y.) ;  In  re  Fisher  & 
Co.,  17  A.  B.  R.  411,  148  Fed.  907  (D.  C.  N.  J.).     Compare,  post,  §  2193. 


§  2166  DISTRIBUTION  TO  cre;ditors.  1335 

§  2163.  Tax  Not  Such  "Secured"  Claim  as  Requires  Exhaustion 
of  Security. — Taxes  do  not  constitute  a  "secured"  claim  within  the  in- 
tent of  the  provisions  of  §  S7,  requiring  deduction  of  the  value  of  the 
security  held  and  allowance  only  for  the  deficit.^^  Rather,  they  are  se- 
cured claims,  to  be  sure,  if  a  lien  on  the  property  by  law,  but  they  are 
also  "priority"  claims,  and,  being  priority  claims,  are  entitled  to  priority 
of  payment  regardless  of  the  security. 

Division    2. 
/ 

Workmen,  Clerks  and  Servants. 

§  2164.  "Wages  of  Workmen,  Clerks  and  Servants." — After  taxes, 
the  next  in  order  of  priority  of  distribution  are  the  wages  due  to  workmen, 
clerks  or  servants,  which  have  been  earned  within  three  months  before 
the  date  of  the  commencement  of  the  proceedings,  not  to  exceed  three 
hundred  dollars.^  ^ 

§  2165.   Must  Be  "Wages,"  and  Be  "Due"  and  "Earned."— It  is 

for  "wages"  that  the  priority  is  given,  and  for  such  wages  as  are  "due" 
and  "Earned. "^2 

§  2166.  Thus,  No  Priority  for  Damages  for  Breach  of  Contract 
of  Employment. — It  is  for  wages  earned  that  the  priority  is  given  and 
damages  for  breach  of  contract  of  employment  are  not  entitled  as  such 
to  priority.^3 

In  re  Lewis  Co.,  12  A.  B.  R.  279  (Ref.  R.  I.) :  "When  a  salesman  employed 
under  a  yearly  contract  is  wrongly  discharged  after  seven  weeks  of  work,  sues 
at  once  and  recovers  judgment  for  breach  of  such  contract,  the  amount  recovered 
is  not  wages;  hence  upon  the  bankruptcy  of  the  employer  within  a  year,  the 
salesman  is  not  entitled  to  payment  in  full  for  the  proportionate  part  of  his  judg- 
ment, which   three  months   bears   to   the  unexpired   period   of  his  term  of  serv- 

"In  the  first  place,  it  seems  to  the  referee  that  the  present  claim  is  not  for 
wages  as  defined  above.  It  is  a  sum  fixed  upon  by  the  court  as  the  amount  to  be 
paid  by  E.  B.  Lewis  Company  because  it  wrongfully  refused  to  allow  Crooker 
to  earn  wages.  The  net  results  may  be  the  same,  but  the  referee  is  unwilling 
to  read  into  the  law,  'Damages  for  breach  of  wage  contract,'  as  seems  necessary 
in  order  to  support  claimant's  contention.  By  way  of  illustration,  would  it  be 
contended  that  this  claim  was  for  wages  if  claimant  had  secured  a  place  else- 
where at  a  salary  of  $10  per  week  and  claimed  the  other  $10  for  loss  of  wages 
as  a  measure  of  damages  against  the  E.  B.  Lewis  Co.?     Does  not  this  show  that 

5(J.    In  re  Harvey,  10  A.  B.  R.  567,  122  Fed.  745  (D.  C.  Pa.). 

51.  Bankr.  Act,  §  64  (b)  (4).     In  re  Rose,  1  A.  B.  R.  69  (Ref.  Ohio). 

52.  Bankr.  Act,  §  64  (b)   (4). 

53.  Inferentially,  In  re  B.  H.  Gladding  Co.,  9  A.  B.  R.  700,  120  Fed.  709  (D. 
C.  R.  I.),  where  a  clerk  on  his  vacation  "with  pay"  was  held  entitled  to  priority 
for  the  time  thus  spent  on  vacation,  the  wages  having  been  earned. 


1336  REMINGTON  ON  BANKRUPTCY.  §  2169 

the  real  nature  of  the  claimant's  demands  is  because  he  lost  the  opportunity  to 
earn  the  additional  $10  wages,  not  because  he  earned  wages?  Re  Pervear, 
Fed.  Cas.  No.  11,053." 

§  2167.    Only  "Workmen,"    "Clerks"   or  "Servants"  Entitled.— 

The  priority  is  given  only  to  those  who  were  "workmen,''  "clerks"  or 
"servants"  of  the  bankrupt.^^ 

§  2168.  Relationship  between  Parties  Governs  and  Not  Solely 
Kind  of  Work. — It  is  the  relationship  the  claimant  bears  to  the  bankrupt, 
not  solely  the  kind  of  work,  that  determines  the  priority.  In  other  words, 
the  query  is  not  merely :  Was  the  claimant  engaged  in  manual  labor  ? 
But  it  is :  Did  the  claimant,  when  earning  the  wages,  sustain  the  relation 
of  "workman,"  "clerk"  or  "servant"  to  the  bankrupt?  If  he  did,  then  he 
is  entitled  to  priority  for  his  services,  no  matter  whether  his  work  were 
manual  work  or  mental  work.  On  the  other  hand,  if  he  did  not  sustain 
such  relation — if  the  relationship  of  master  and  serving  man,  master  and 
clerk,  or  master  and  workman  did  not  exist — then  the  claimant  is  not 
entitled  to  priority,  no  matter  if  his  work  were  manual  work  and  labor. 

Frequently  the  mistake  is  made,  in  preparing  proofs  of  claims  for  prior- 
ity claimants,  of  saying  a  good  deal  about  "manual  work  and  labor"  and 
nothing  at  all  as  to  whether  or  not  the  claimant  was  a  "workman,"  "clerk" 
or  "servant"  of  the  bankrupt. 

Thus,  a  "workman,"  "clerk"  or  "servant"  on  vacation  "with  pay"  is 
nevertheless  entitled  to  priority  for  the  time  thus  spent  on  vacation:  they 
are  his  "wages"  and  are  "earned"  already. ^^ 

In  re  B.  H.  Gladding  Co.,  9  A.  B.  R.  700,  120  Fed.  709  (D.  C.  R.  I.) :  "Wages 
are  'earned'  in  the  sense  in  which  that  term  is  used  in  the  Bankruptcy  Act,  so 
long  as  a  bona  fide  contract  of  hiring  exists,  and  the  clerk  or  servant  continues 
in  the  master's  employment  and  does  all  he  is  required  to  do." 

§  2169.  "Workman,"  "Clerk"  and  "Servant"  to  Be  Given  Ordi- 
nary, Popular  Meaning. — The  words  workman,  clerk  and  servant  are 
to  be  given  their  common,  everyday,  popular  meaning.^'' 

In  re  Smith,  11  A.  B.  R.  646  (D.  C.  R.  I.):  "As  used  in  this  section  (64)  of 
the  Bankruptcy  Act  it  has  its  popular  meaning,  namely,  'payment  for  services 
rendered,  especially  the  pay  of  manual  laborers  receiving  a  fixed  sum  per  dajs 
week  or  month.'     Standard  Diet.  2026,  definition  'wage.' 

"See,  also,  Cyc.  Law  Diet.,  definition  'wages.'  'Compensation  given  to  a  hired 
person  for  manual  or  other  inferior  services.' '' 

In  re  Grubbs-Wiley  Grocery  Co.,  2  A.  B.  R.  444,  96  Fed.  183  (D.  C.  Mo.): 
"The   term   'workmen   or  servants'   is  to  be  presumed   to  have  been   ernployed 

54.  Bankr.  Act.  §  64  (b)   (4). 

55.  Compare,  In  re  E.  B.  Lewis  Co.,  12  A.  B.  R.  281   (Ref.  R.  I.). 

56.  In  re  Greenewald,  3  A.  B.  R.  697,  99  Fed.  705  (D.  C.  Pa.);  In  re  Rose,  1 
A.  B.  R.  68  (Ref.  Ohio). 


§    2169  DISTRIBUTION  TO  CREDITORS.  1337 

in  its  ordinary  acceptation.  Ordinarily  a  workman  is  understood  to  be  'One 
who  labors;  one  who  is  employed  to  do  business  for  another;  a  worker;  one 
who  is  employed  in  labor.'  Doubtless  the  statute  has  reference  to  a  workman 
employed  on  some  character  of  work — laboring  for  some  person  who  sustains 
to  him  the  relation  of  an  employer  or  master,  for  whom  he  works.  So,  also, 
the  term  'servant'  ordinarily  means  a  person  employed  by  another  to  render 
personal  services  to  the  employer,  between  whom  the  relation  of  master  and 
servant  exists,  as  understood  in  law." 

In  re  Carolina  Cooperage  Co.,  3  A.  B.  R.  157,  96  Fed.  950  (D.  C.  N.  Car.): 
■"The  class  to  whom  it  was  evidently  the  intention  of  Congress  to  give  pri- 
ority is  that  class  who  labor  and  serve;  parties  who,  under  the  laws  of  some 
State,  would  have  a  lien,  or  at  least  be  preferred  to  other  creditors  in  the 
settlement  of  an  estate." 

The  technical  meaning  of  "servant,"  as  being  any  one  employed  by 
another  (as  used  in  the  law  of  personal  injury  or  of  master  and  servant), 
is  broader  than  its  meaning  under  §  64  (b)  of  the  Bankruptcy  Act.^" 

In  re  Smith,  11  A.  B.  R.  646  (Ref.  R.  I.):  "All  the  decided  cases  under  this 
subsection  of  the  law  give  to  the  words  'workman,  clerk  or  servant'  a  some- 
what restricted  meaning." 

Thus,  while,  in  the  eyes  of  the  law,  even  a  high-salaried  ofificer  of  a 
corporation  may  be  its  "servant,"  yet,  in  bankruptcy  distribution,  he  is 
not  entitled  to  priority,  because  that  kind  of  "servant"  is  not  what  is 
meant. ^^ 

[Eng.]  Gordon  v.  Jennings,  9  Q.  B.  Div.  45:  "The  term  'wages'  is  not  ap- 
plied to  the  remuneration  of  a  high  or  important  officer  of  the  State  or  of  a 
county,  for  instance,  but  to  that  of  domestic  servants,  laborers  and  persons  of 
similar  description." 

The  statute  means  by  servant,  a  serving  man  or  woman,  as  the  word  is 
used  in  everyday  life.     So,  also,  with  "workman"  and  with  "clerk." 

Under  the  law  of  1867  the  priority  was  given  to  "house-servants." 
Obviously,  the  present  law  means  simply  to  enlarge  the  class  of  servants 
from  "house"  sefvants  to  all  kinds  of  servants  about  the  premises  or 
person  of  the  bankrupt  and  his  family.^''  So,  also,  the  law  of  1867  gave 
the  priority  to  "operatives."  The  present  law  obviously  means  to  confine 
the  priority  to  that  class  of  operatives  known,  commonly,  as  "workmen." 

Similarly,  persons  selling  goods  in  a  store  are  "clerks"  within  the  mean- 
ing of  the  act,  as  they  also  are  by  popular  acceptation.'^'^ 

Obiter,  In  re  Greenewald,  3  A.  B.  R.  696  (D.  C.  Pa.):  "The  scope  of  these 
words  is  to  be  determined,  I  think,  not  exclusively  by  the  lexicographers,  but 
in  part,  at  least,  by  modern  usage,  which  is  continually  modifying  the  content 
of  words  and  phrases.  'Clerk,'  for  example,  has  come  to  include,  not  only  a 
subordinate  who  writes  letters  or  keeps  books,  but  also  a  salesman  in  a  retail 
store." 

57.  In  re  Greenewald,  3  A.  B.  R.  696,  698,  99  Fed.  705   (D.   C.  Pa.). 

58.  In  re  Carolina;  Cooperage  Co.,  3  A.  B.  R.  157,  96  Fed.  950  (D.  C.  N.  Car.). 

59.  Compare,  In  re  Rose.  1  A.  B.  R.  75  (Ref.  Ohio). 

60.  In  re  Flick,  5  A.  B.  R.  465,  105   Fed.  503   (D.   C.  Ohio). 


1338  REMINGTON    ON    EANKRUPTCY.  §  2172 

§  2170.  "Traveling  Salesmen"  Also  Entitled  to  Priority.— Travel- 
ing salesmen  before  the  iVmendment  of  1906  were  not  entitled  to  priority 
under  §  64  (b)  (4)  f^  but  were  entitled  to  priority  under  §  64  (b)  (5), 
if  the  state  law  recognized  the  priority.^- 

But  traveling  salesmen  are  now  entitled  to  priority,  by  the  Amendment 
of  1906. 

§  2171.  Definition  of  "Wage  Earner"  in  §§  1  and  4  Not  Criterion 

Here. — The  definition  of  "wage  earner,"  given  in  §  1  of  the  act,  as  being 
one  who  "works  for  wages,  salary  or  hire  at  a  rate  of  compensation  not 
exceeding  $1,500  a  year,"  has  reference  to  those  who  may  be  proceeded  ' 
against  in  involuntary  bankruptcy,  and  is  not  controlling  upon  the  ques- 
tion as  to  who  is  entitled  to  priority  of  payment  of  wages  out  of  the  es- 
tate, as  being  a  workman,  clerk  or  servant.*^^ 

§  2172.  Thus,  Independent  Contractors  Not  Entitled. — Independ- 
ent contract  workers  are  not  entitled  to  priority.  Thus,  one  using  his 
own  workshop,  machinery  and  tools,  himeslf  working  as  well  as  em- 
I^loying  helpers,  to  manufacture  cheese  and  butter,  at  certain  rates,  for 
another,  out  of  milk  furnished  by  that  other,  is  an  independent  contractor 
and  not  entitled  to  priority ."^^ 

Likewise,  a  blacksmith  who  maintains  his  own  shop  and  shoes  horses 
for  whomsoever  may  apply,  is  not  entitled  to  priority,  although  he  himself 
does  work. 

Weaver  v.  Stone  &  Supply  Co.,  16  A.  B.  R.  518  (Ref.  Ohio):  "The  three 
claimants  in  this  case  maintained  shops  where  blacksmithing  was  done  for 
whomsoever  might  apply  to  them  for  work  of  that  character  and  for  whom  they 
were  willing  to  do  the  work.  The  relation  of  employer  and  employee  does  not 
exist  between  the  person  taking  tools  or  horses  to  a  blacksmith  shop  for  the 
purpose  of  having  blacksmithing  done  for  them  and  the  persons  doing  the  work. 
They  are  no  more  employer  and  employee  than  are  the  person  taking  a  watch 
to  a  watchmaker  and  the  watchmaker  who  repairs  the  watch." 

Again,  one  who  buys,  at  wholesale,  from  jobbers,  as  the  agent  of  any 
one  who  employs  him,  and  receives  a  commission  from  each  one  for  pur- 
chases made  in  that  person's  behalf,  is  not  entitled  to  priority.*^-^  And, 
similarly,  incidental  commissions  for  getting  customers,  where  the  regular 
employment  by  the  bankrupt  is  for  other  services,  there  being  no  obliga- 
tion to  serve    in   getting   the    customers,    does  not  entitle    one   to  priority 

61.  In  re  Scanlon,  3  A.  B.  R.  202,  97  Fed.  26  (D.  C.  Ky.) ;  In  re  Greenewald,  3 
A.  B.  R.     696,  99   Fed.  705   (D.  C.  Pa.). 

62.  In  re  Lawler,  6  A.  B.  R.  184,  110  Fed.  135  (D.  C.  Wash.). 

63.  In  re  Scanlon  &  Co.,  3  A.  B.  R.  202,  97  Fed.  26  (D.  C:  Ky.) ;  In  re  Caro- 
lina Cooperage  Co.,  3  A.  B.  R.  154,  96  Fed.  950  (D.  C.  N.  Car.);  In  re  Gurewitz, 
10  A.  B.  R.  350,  121  Fed.  982  (C.  C.  A.  N.  Y.) ;  In  re  Smith,  11  A.  B.  R.  647 
(Ref.  R.  I.).  Compare,  inferentially  contra,  however.  In  re  Rose,  1  A.  B.  R.  73 
(Ref.  Ohio). 

64.  In  re  Rose,  1  A.  B.  R.  68  (Ref.  Ohio). 

65.  In  re  Smith,  11  A.  B.  R.  646  (Ref.  R.  I.). 


§    2174  DISTRIBUTION  TO  CREDITORS.  1339 

for  the  commissions.*'*^  For  the  same  reason  factors  are  not  entitled  to 
priority.^"  And  a  general  expressman  doing  draying  for  the  general  pub- 
lic and  at  the  same  time  doing  all  of  the  bankrupt's  draying,  as  ordered,  is 
not  entitled  to  priority.''^ 

But  an  ordinary  day  laborer,  who  does  work  with  his  hands,  lifting  logs, 
plowing,  etc.,  has  been  held  to  be  a  "wage  earner"  exempt  from  bank- 
ruptcy although  he  works  for  different  people,  and  at  irregular  intervals 
and  owns  the  team  that  is  used  by  him  in  the  work. 

Analogously,  In  re  Yoder,  11  A.  B.  R.  445,  127  Fed.  894  (D.  C.  Pa,):  "Upon 
these  facts  I  think  it  is  clear  that  the  bankrupt  was  a  wage  earner  and  not  an 
independent  contractor.  He  was  a  servant  hired  by  successive  masters,  and  was 
always  paid  by  the  day,  never  by  the  job.  The  fact  that  he  used  his  horses  and 
wagons  in  performing  the  services  for  which  he  was  paid  by  the  day  does  not 
seem  to  me  of  any  special  importance.  A  carpenter,  or  any  other  skilled  me- 
chanic, employs  tools — often  his  own  tools — to  assist  him  in  earning  his  daily 
wages,  and  the  bankrupt's  horses  and  wagons  stand,  I  think,  in  precisely  the 
same  category.  *  *  *  j^g  ^^g  j^q^  ^^^  independent  contractor,  looking  for 
his  income  to  the  profits  that  he  might  make  by  carrying  out  a  contract  for  a 
lump  sum,  but  was  an  ordinary  day  laborer,  who  did  Work  with  his  hands, 
lifting  logs,  holding  a  plow,  driving  his  team  and  similar  services  for  which 
he  was  paid  at  a  fixed  rate  by  the  day." 

And  it  has  been  held,  that  the  reasonable  value  of  a  teamster's  own  serv- 
ices may  be  separated  from  that  of  the  use  of  his  team  and  wagon,  and 
priority  be  given  for  the  services  and  denied  for  the  use  of  the  team  and 
wagon,  although  the  contract  be  for  both  together  without  separation.*' '^ 
Such  rule  is  of  doubtful  authority.  With  quite  as  good  reason  could  the 
value  of  the  individual  services  of  the  various  independent  contractors 
in  the  above  instance  be  separated  by  estimate  from  that  of  his  employees. 

§  2173.    Exclusive  Employment  by  One  Person  Not  Requisite. — 

Exclusive  employment  by  one  person  may  not  be  taken  as  a  requisite.'''*' 

§  2174.  But  Employment  by  Several  Tends  to  Show  Independent 
Contractor. — Yet  employment  by  a  large  number  goes  far  to  show  that 
an  employee  is  an  independent  contractor  rather  than  a  servant."^  ^ 

66.  In  re  Mayer,  4  A.  B.  R.  119.  101  Fed.  227  (D.  C.  Wis.). 

67.  Obiter,  In  re  Smith,  11  A.  B.  R.  646  (D.  C.  R.  I.). 

68.  Obiter,  In  re  Smith,  11  A.  B.  R.  646  (D.  C.  R.  I.). 

69.  In  re  Lumber  Co.,  17  A.  B.  R.  117  (D.  C.  Ky.) :  But  this  case  comes  close 
to  the  border  line  of  independent  contract.  To  be  sure  the  mere  furnishing 
of  the  tools  by  the  workmen  will  not  prevent  his  claim  being  that  of  a  "work- 
man," within  §  64  (b)  (4);  but  on  the  other  hand  the  furnishing  of  a  horse  and 
wagon  under  an  entire  contract  including  his  own  services  comes  very  close  to 
being  an  independent  contract  relation  rather  than  that  of  a.  subordinate 
"workman." 

70.  In  re  Smith,  11  A.  B.  R.  648  (Ref.  R.  I.);  analogously.  In  re  Yoder,  11  A. 
B.  R.  445,  127  Fed.  894   (D.  C.  Pa.). 

71.  In  re  Smith,  11  A.  B.  R.  646   (Ref.  R.  I.). 


1340  REMINGTON    ON    BANKRUPTCY.  §  2176 

§  2175.  "Piece  Workers"  May  Be  Entitletl. — Piece  workers  may 
be  entitled  to  priority  as  "workmen."  There  is  nothing  in  the  mere  man- 
ner of  payment  by  the  piece  to  prevent  such  workers  coming  within  the 
meaning  of  the  term  workmen." ^ 

§  2176.  Idea  of  Subordination  Implied. — The  idea  of  subordination 
is  implied."^ 

In  re  Gurewitz,  10  A.  B.  R.  351,  121  Fed.  982  (C.  C.  A.  N.  Y.) :  "The  legis- 
lative intent  *  *  *  jg  manifest.  It  is  to  give  a  preference,  limited  in  time 
and  amount,  to  those  employees  of  the  bankrupt  who  work  for  wages.  It 
surely  could  not  have  been  the  purpose  of  Congress  to  make  the  method  of 
computation  a  criterion  of  priority.  There  is  absolutely  nothing  in  the  language 
quoted,  upon  which  to  base  such  an  assumption.  In  order  to  secure  priority 
under  this  subdivision,  the  creditor  must  establish  the  following  facts:  First, 
that  he  was  a  workman,  clerk  or  servant  of  the  bankrupt.  Second,  that  he 
earned  wages  within  three  months  prior  to  the  commencement  of  the  proceed- 
ings. 

"There  is  nothing  ambiguous  about  the  use  of  the  word  'wages'  in  this  con- 
nection. It  means  the  agreed  compensation  for  services  rendered  by  the  work- 
men, clerks  or  servants  of  the  bankrupt — those  who  have  served  him  in  a  sub- 
ordinate or  menial  capacity  and  who  are  supposed  to  be  dependent  upon  their 
earnings  for  their  present  support.  Whether  their  employer  has  agreed  to  pay 
them  by  the  hour,  the  day,  the  week,  the  month  or  by  the  'job'  or  piece,  is 
wholly  immaterial. 

"It  is  incredible  to  suppose  that  Congress  intended  to  discriminate  against 
the  vast  army  of  laborers  who,  in  the  coal  mines,  the  foundries,  the  clothing 
manufactories  and  in  almost  every  branch  of  industry,  are  paid,  not  according 
to  the  time  consumed,  but  according  to  the  work  accomplished." 

In  re- Smith,  11  A.  B.  R.  646  (D.  C.  R.  I.):  "The  purpose  of  the  law  seems 
to  have  been  to  protect  subordinate  helpers  or  assistants  and  to-  pay  in  full 
those  dependent  on  their  wages  as  means  of  a  livelihood.  The  meaning  of 
'wages'     *     *     *     carries  with  it  the  idea  of  subordination." 

In  re  Greenewald,  3  A.  B.  R.  697,  99  Fed.  705  (D.  C.  Pa.):  "The  es- 
sential idea  conveyed  by  this  word,  as  commonly  used,  is  the  idea  of  a 
subordinate,  whose  occupation  has  nothing  to  do  with  correspondence  or 
books  of  account,  but  requires  him  to  use  his  hands  to  a  consid- 
erable degree  in  manufacturing  or  building,  or  in  similar  pursuits.  He  may  be 
skilled  or  unskilled;  he  may  or  may  not,  be  aided  by  tools  or  machinery;  but 
he  does  not  belong  to  the  same  class  as  the  man  that  is  neither  making  goods  nor 
erecting  buildings,  nor  accomplishing  similar  results,  but  is  exclusively  engaged 
in  the  sale  of  a  finished  product." 

Thus,  managing  officers  are  not  entitled  to  priority."^ 

In  re  Grubbs-Wiley  Grocery  Co.,  2  A.  B.  R.  444,  96  Fed.  183  (D.  C.  Mo.): 
"This  claimant  was  himself  a  stockholder  in  this  corporation,  and  was  one  of  the 

72.  In  re  Rose,  1  A.  B.  R.  76  (Ref.  Ohio);  obiter.  Weaver  v.  Hugill  Stone 
&  Supply  Co.,  16  A.  B.  R.  517  (Ref.  Ohio).  Obiter,  In  re  Gurewitz,  10  A.  B.  R. 
351,  121  Fed.  982  (C.  C.  A.  N.  Y.),  quoted  at  §  2176. 

73.  In  re  Rose,  1  A.  B.  R.  73  (Ref.  Ohio);  inferentially.  In  re  Grubbs-Wiley 
Grocery  Co.,  2  A.  B.  R.  442,  96  Fed.  183  (D.  C.  Mo.);  Weaver  v.  Hugill  Stone 
&  Supply  Co.,  16  A.  B.  R.  516  (Ref.  Ohio). 

74.  In  re  Carolina  Cooperage  Co.,  3  A.  B.  R.  154,  96  Fed.  950  (D.  C.  N.  Car.); 
[Eng.]   Gordon  v.  Jennings,  9  Q.  B.  Div.  45. 


§    2179  DISTRIBUTION  TO  CREDITORS.  1341 

board  of  directors,  and  was  its  general  manager.  As  such  general  manager 
he  stood  in  the  relation  of  vice-principal  of  the  corporation.  *  *  *  Could 
it  be  maintained  that  he  was  a  workman  or  servant  of  the  company  on  a  salary, 
entitling  him,  on  the  declaration  of  bankruptcy  of  the  concern,  to  have  his 
salary  paid  as  a  preferred  claim?  Indeed,  it  would  present  a  remarkable  feature 
of  the  Bankrupt  Act,  if  the  managing  officers  of  a  business  corporation  could 
vote  themselves  salaries  ad  libitum,  and  after,  by  their  mismanagement,  wreck- 
ing the  company,  and  inviting  an  adjudication  of  bankruptcy,  they  could,  to 
the  exclusion  of  other  creditors  of  the  concern,  whose  money  and  property 
they  had  obtained  on  credit,  come  in  as  preferred  creditors,  to  the  exclusion  of 
such  general  creditors.  The  act,  in  my  judgment,  admits  of  no  such  construc- 
tion." 

§  2177.  Correlative  Obligation  to  Serve  Implied. — The  mere  obli- 
gation to  pay  one  for  whatever  service  he  might  do,  with  no  obhgation 
upon  him  to  perform  any  services,  will  not  entitle  such  one  to  priority ."^^ 

§  2178.  Must  Be  Performed  within  Three  Months  before  Bank- 
ruptcy.— The  services  must  have  been  performed  within  three  months 
preceding  the  filing  of  the  bankruptcy  petition,  in  order  to  claim  priority 
under  §  64  (b)    (4)."6 

Thus,  where  the  priority  claimant  has  suffered  his  employer,  the  bank- 
rupt, to  retain  a  portion  of  his  wages  as  they  have  been  earned,  to  ac- 
cumulate a  fund  with  which  to  go  to  college,  the  priority  claim  could  not 
cover  this  amount ;""  although,  presumably,  if  the  precise  money  so  re- 
tained could  be  traced  into  any  particular  fund,  it  might  be  reclaimed  as 
a  trust  fund. 

§  2179.  Whether  May  Be  for  Services  Covering  Longer  Period 
if  Priority  Claimed  Not  under  §  64  (b)  (4)  but  under  §  64 
(b)  (5). — But  perhaps  it  may  be  for  a  longer  period  if  priority  is  not 
claimed  under  Section  64  (b)  (4)  but  is  claimed  under  Sec.  64  (b)  (5) 
where  such  priority  is  given  by  the  state  statute  for  a  longer  period."^ 

However,  by  the  weight  of  authority  it  is  held  that  where  the  state 
priority  covers  the  same  class  covered  by  Sec.  64  (b)  (4)  of  the  Bank- 
ruptcy Act,  the  only  claim  that  may  be  made  must  be  under  Sec.  64 
(b)   (4).-9 

In  re  Slomka,  9  A.  B.  R.  635,  122  Fed.  630  (C.  C.  A.  N.  Y.) :  "If  by  the  State 
law  the  debts  were  within  the  general  description  of  clause  5,  we  are  of 
opinion  that  the  clause  would  not  apply  and  tl^at  the  terms  of  clause  4 
supply  the  exclusive  rule  for  determining  what  debts  for  wages  are  entitled  to 

75.  In  re  Mayer,  4  A.  B.  R.  119,  101  Fed.  227  (D.  C.  Wis.). 

76.  In  re  Rouse,  Hazard  &  Co.,  1  A.  B.  R.  234,  91  Fed.  96  (C.  C.  A.  Ills.); 
In  re  Slomka,  9  A.  B.  R.  635,  122  Fed.  630. (C.  C.  A.  N.  Y.). 

77.  In  re  Flick,  5  A.  B.  R.  465,  105  Fed.  503  (D.  C.  Ohio). 

78.  In  re  Lawler,  6  A.  B.  R.  184,  110  Fed.  135  (D.  C.  Wash.);  In  re  Gerson,  1 
A.  B.  R.  251  (Ref.  Penna.);  inferentially.  In  re  Laird,  6  A.  B.  R.  1,  109  Fed.  550 

.(C.  C.  A.  Ohio). 

79.  In  re  Rouse,  Hazard  &  Co.,  1  A.  B.  R.  234,  91  Fed.  96  (C.  C.  A.  Ills.). 
Contra,  In  re  Laird,  6  A.  B.  R.  1,  109  Fed.  550  (C.  C.  A.  Ohio). 


1342  REMINGTON    ON    BANKRUPTCY.  §  2183 

priority.  No  principle  of  statutory  construction  is  better  settled  than  that 
which  displaces  the  application  of  general  provisions  to  a  particular  subject 
when  there  are  specific  provisions  applicable  to  it  in  the  same  act.  The  subject 
of  claims  for  wages  is  specifically  regulated  by  clause  4,  and  its  provisions  ex- 
press the  particular  intent  of  Congress  regarding  priority  of  such  claims.  As 
these  confine  the  priorit}^  to  wages  earned  within  the  three  months  before  the 
commencement  of  the  bankruptcy  proceedings,  debts  like  the  present  are  not 
included.  We  agree  upqn  this  question  with  the  decision  of  the  Circuit  Court 
of  Appeals  for  the  Seventh  Circuit,  In  re  Rouse,  Hazard  &  Co.,  1  A.  B.  R. 
234,  91  Fed.  Rep.  96,  and  for  the  reasons  which  are  so  satisfactorily  stated  in 
the  opinion  in  that  case.  We  have  given  due  consideration  to  the  decision  by  the 
Circuit  Court  of  Appeals  for  the  Sixth  Circuit,  In  re  Laird,  6  Am.  B.  R.  1, 
109  Fed.  550,  but  we  are  unable  to  regard  it  as  correct." 

Of  course  §  64  (b)  (5)  would  apply  and  might,  if  the  state  statute  so 
provided,  cover  services  rendered  before  the  three  months,  if  the  claim- 
ants were  not  "workmen,"   "clerks"'  nor  "servants." 

§  2180.  Not  to  Exceed  "Three  Hundred  Dollars." — Xo  more  than 
three  hundred  dollars  may  be  allowed  as  a  priority  claim  to  any  one  claim- 
ant under  §  64  (b)    (4).' 

» 
>§  2181.  But  Perhaps  for  More  if  Priority  Claimed  Not  under  '§ 
64  (b)  (4)  but  under  §  64  (b)  (5). — But  perhaps  more  may  be 
allowed,  if  the  state  statute  so  provides,  where  the  claim  is  made  under 
§  64  (b)  (5)  ;^'^  at  any  rate,  where  the  claimant  is  not  strictly  a  "work- 
man," "clerk,"  nor  "servant"  within  the  classification  of  the  Bankrupt 
Act. 

§  2182.  Reducing  Claim  to  Judgment,  Not  Such  Merger  as  to 
Lose  Priority. — The  claims  of  a  workman,  clerk,  or  servant  reduced 
to  judgment  is  not  so  far  merged  in  the  judgment  as  to  lose  the  priority 
originally  attached  thereto.^^ 

§  2183.  Nor  Is  Priority  Lost  by  Assignment  of  Claim. — Work- 
men's, clerks'  and  servants"  claims,  assigned  to  a  third  party  after  the 
filing  of  the  bankruptcy  petition,  do  not  lose  their  priority,  and  the  as- 
signee has  the  same  priority  the  workmen,  clerks  and  servants  them- 
selves would  have  had.^^  ^ 


80.  In  re  Lawler,  6  A.  B.  R.  184,  110  Fed.  135  (D.  C.  Vt.). 

81.  In  re  Anson,  4  A.  B.  R.  231,  101  Fed.  698  (D.  C.  Calif.);  compare,  In  re 
McBryde,  3  A.  B.  R.  729,  99  Fed.  686  (D.  C.  X.  Car.);  compare.  In  re  Johnson, 
footnote  to  4  A.  B.  R.  231  (D.  C.  Calif.). 

82.  A  fortiori   (even  where  assigned  before  the   filing),   Shropshire,  Woodlifif 
&  Co.  V.  Bush,  17  A.  B.  R.  79,  204  U.  S.  186;  In  re  Campbell,  4  A.  B.  R.  535,  102 
Fed.  686  (D.  C.  Wis.);   [1867]    In  re  Brown,  4  Ben.  142,  Fed.   Cases   No.   1,974; 
obiter.   In  re   North   Carolina   Car    Co.,   11   A.    B.    R.   488,   127    Fed.    178    (D.    C.  • 
N.  Car.). 


§   2183  DISTRIBUTION  TO  CREDITORS.  1343 

A  fortiori  (even  where  assigned  before  the  filing),  In  re  Harman,  11  A.  B.  R. 
64,  128  Fed.  170  (D.  C.  W.  Va.)  :  "I  am  of  opinion  that  the  Bankruptcy  Act  was 
intended  by  Congress  to  prefer  claims  for  labor  performed  within  three  months 
prior  to  the  filing  of  the  petition  regardless  of  the  fact  that  they  may  have  been 
assigned.  And  I  think  this  is  indicated  by  the  use  of  the  word  'claimant'  instead 
of  'workman'  in  §  64." 

Nor  is  priority  lost  even  if  the  wages  claims  be  assigned  before  the 
filing  of  the  petition.^-" 

Shropshire,  Woodliff  &  Co.  v.  Bush,  17  A.  B.  R.  79,  204  U.  S.  186:  "The  pre- 
cise inquiry  is  whether  the  right  of  prior  payment  thus  conferred  is  attached 
to  the  person  or  to  the  claim  of  the  wage  earner;  if  to  the  person,  it  is  avail- 
able only  to  him^  if  to  the  claim  it  passes  with  the  transfer  to  the  assignee. 
In  support  of  the  proposition  that  the  right  is  personal  to  the  wage  earner,  and 
enforceable  only  by  him,  it  is  argued  that  it  is  not  wages  earned  within  the 
prescribed  time  which  are  given  priority,  but  wages  'du^  to  workmen,  clerks 
or  servants;'  that  where  the  claim  is  assigned  to  another  it  is  no  longer  'due 
to  workmen,  clerks  or  servants,'  but  to  the  assignee,  and  therefore  when  pre- 
sented by  him  lacks  one  of  the  characteristics  which  the  law  makes  essential 
to  priority.  In  this  argument  it  is  assumed  that  the  wages  must  be  'due'  to  the 
earner  at  the  time  of  the  presentment  of  the  claim  for  proof,  or  at  least  at  the 
time  of  the  commencement  of  the  proceedings  in  bankruptcy.  Without  that 
assumption  the  argument  fails  to  support  the  conclusion.  But  the  statute  lends 
no  countenance  to  this  assumption.  It  nowhere  expressly  or  by  fair  implication 
says  that  the  wages  must  be  due  to  the  earner  at  the  time  of  the  presentment  of 
the  claim,  or  of  the  beginning  of  the  proceedings,  and  we  find  no  warrant  for 
supplying  such  a  restriction.  Regarding,  then,  the  plain  words  of  the  statute, 
and  no  more,  they  seem  to  be- merely  descriptive  of  the  nature  of  the  debt  to 
which  priority  is  given.  When  one  has  incurred  a  debt  for  wages 
due  to  workmen,  clerks  or  servants  that  debt,  within  the  limits  of  time 
and  amount  prescribed  by  the  Act,  is  entitled  to  priority  of  payment.  The 
priority  is  attached  to  the  debt  and  not  to  the  person  of  the  creditor;  to  the 
claim  and  not  to  the  claimant.  The  Act  does  not  enumerate  classes  of  creditors 
and  confer  upon  them  the  privilege  of  priority  in  payment,  but,  on  the  other 
hand,  enumerates  classes  of  debts  as  'the  debts  to  have  priority.'  " 

Contra,  In  re  Westlund,  3  A.  B.  R.  646,  99  Fed.  399  (D.  C.  Minn.):  "Th^s 
language  requires  that  a  debt  for  wages,  to  have  priority,  must  be  due  to  the 
wage  earner.  If  the  claimant  entitled  to  priority  might  be  an  assignee,  there 
would  be  no  reason  why  such  claimant  should  be  restricted  to  $300,  as  he  might 
be  the  owner  of  many  small  claims,  each  less  than  that  amount,  but  aggregating 
more.  The  clause  referred  to  is  intended  to  favor  the  class  whose  reliance 
for  the.  maintenance  of  themselves  and  families  is  generally  upon  their  wages, 
as  earned.  There  is  nothing  in  the  nature  of  security  or  lien  for  the  payment 
of  the  wages  v/hich  could  pass  to  an  assignee.  No  right  to  priority  arises  or 
exists  until  the  proceeding  in  bankruptcy  is  instituted,  and  then  the  wages  as- 
signed are  not  'due  to  workmen,  clerks  or  servants,'  but  to  their  assignees,  and 
are  outside  the  language  of  this  clause.  If  debts  for  wages  so  assigned  can  be 
allowed  priority,  they  may  come  in  conflict,  or  at  least  in  competition,  with 
other  claims  for  wages  due  and  owing  to  the  same  workmen,  clerks  and  serv- 
ants,   earned   within   the    same   three   months,    and   lessen    the    payments,    if   the 

83.  In  re  Harmon,  11  A.  B.  R.  64,  128  Fed.  IJO  (D.  C.  W.  Va.).  Contra,  In  re 
Ice  Mfg.  &  Storage  Co.,  17  A.  B.  R.  194  (D.  C.  Mo.).  Also,  contra,  obiter,  In  re 
North  Carolina  Car  Co.,  11  A.  B.  R.  488,  127  Fed.  178  (D.  C.  N.  Car.). 


1344  REMINGTON    ON    BANKRUPTCY.  §  2186 

assets  will  not  pay  in  full  all  debts  having  priority.  It  must  be  held,  therefore, 
that  debts  of  a  bankrupt  for  labor  and  services  which  at  the  commencement  of 
the  proceedings  in  bankruptcy  are  not  due  to  the  workmen,  clerks  or  servants, 
but  to  assignees,  have  no  priority.'' 

§  2184.  Subrogation  of  Persons  Advancing  Money  to  Meet  Pay 
Rolls. — Persons  advancing  money  to  bankrupts  to  meet  pay  rolls,  under 
an  agreement  that  such  pay  rolls  should  be  assigned,  probably  may  be 
subrogated  to  the  rights  of  the  workmen  thus  paid.    This  would  be  nothing   * 
but  the  application  of  the  rule  of  equitable  subrogation.^^ 

Likewise,  probably,  if  such  advancement  be  made  to  preserve  the  busi- 
ness  by  one  interested  therein. 

Yet  there  is  considerable  doubt  as  to  the  applicability  of  the  doctrine  of 
subrogation — whether  it  be  subrogated  by  agreement  or  by  force  of  ecjuity 
— to  wages  claims  before  the  bankruptcy. 

And  at  any  rate  such  assigned  claims  should  not  compete  for  priority 
with  the  claims  still  owned  by  workmen,  clerks  or  servants. ^^ 

§  2185.  Due  "Proof"  to  Be  Made  of  Priority  Claim.— Due  proof 
of  claim  must  be  filed.  It  is  none  the  less  a  "provable  debt''  requiring 
due  "proof"  before  payment,  because  of  being  a  priority  debt.^*^ 

§  2186.  Wages  Claims  "of  Workmen,  Clerks  and  Servants"  No 
Precedence  over  Valid  Prior  Liens. — Priority  claims  for  wages  of 
workmen,  clerks  or  servants  under  the  bankruptcy  classification  do  not 
have  precedence  over  valid  liens  in  the  distribution  of  assets  covered  partly 
or  wholly  by  liens. ■^■''  But,  of  course  where  by  state  law  certain  wages 
claims  have  such  precedence,  they  will  preserve  their  precedence  in  bank- 
ruptcy ;'^^  although  such  precedence  will  result  not  from  §  64  (b)  (4) 
but  rather  from  §  64  (b)    (5). 

84.  But  contra,  if  the  pay  rolls  were  not  in  fact  assigned.  In  re  North  Caro- 
lina Car  Co.,  11  A.  B.  R.  488,  127  Fed.  178  (D.  C.  N.  Car.);  but  this  is  not 
correct,  for  the  advancement  under  the  agreement  creates  the  equity  whether 
carried  out  or  not  unless  the  assignment  was  actually  waived.  See  post,  "Sub- 
rogation to  Rights  of  Various  Parties  in  Distribution  of  Assets,"  division  5. 

85.  See  post,  "Whether  Subrogation  to  Workmen's  Priority  Claims  to  Com- 
pete with  Workmen's  Own  Later  Claims,"  §  2279. 

86.  See  ante,  this  chapter,  §  2138. 

87.  In  re  IMuhlhauser,  10  A.B.  R.  231,  121  Fed.  669  (C.  C.  A.  Ohio)!  In  re 
Frick.  1  A.  B.  R.  719  (Ref.  Ohio).  Compare  same  rule  under  state  priority.  In 
re  Falls  City  Shirt  Mfg.  Co.,  3  A.  B.  R.  437,  98  Fed.  592  (D.  C.  Ky.) ;  contra,  In 
re  Erie  Lumber  Co.,  17  A.  B.  R.  699  (D.  C.  Ga.). 

It  has  been  held,  that  where,  after  a  fraudulent .  conveyance  by  way  of  note 
and  mortgage  has  been  set  aside,  the  payee  of  the  note  sets  up  that  the  note 
was  for  wages  and  claims  priority,  this  "claim  for  priority  being  still  based  on 
the  fraudulent  note,  will  be  rejected.  In  re  Hemstreet,  14  A.  B.  R.  823,  139  Fed. 
958  (D.  C.  Iowa):  "It  is  possible  that  there  is  due  some  amount,  as  wages, 
from  the  bankrupt;  but  as  the  claimant  has  rested  his  claim  upon  the  notes 
and  mortgage  he  must  abide  the  conclusion  thereon,  and  they  being  invalid,  he 
is  not  entitled  to  other  relief  against  the  creditors." 

88.  In  re  Byrne,  3  A.  B.  R.  268.97  Fed.  762  (D.  C.  Iowa);  In  re  Erie  Lumber 
Co.,  17  A.  B.  R.  699  (D.  C.  Ga.). 


§  2188  distribution  to  creditors.  1345 

Division  3. 

Prioritie;s  under  Federal  and  State  Law. 

§  2187.  Priorities  Granted  by  State  and  Federal  Laws. — The  last 
class  of  claims  entitled  to  payment  before  g-eneral  creditors  are  debts  owing 
to  any  person  who,  by  the  laws  of  the  States,  or  of  the  United  States,  is  en- 
titled to  priority. ^9 

§  2188.  "Priority"  to  Be  Distinguished  from  "Liens." — Priority 
here  does  not  refer  to  liens  existing  on  the  bankrupt's  property  nor  to 
the  order  of  payment  of  such  liens,  but  to  the  order  of  payment  out  of  the 
general  assets  of  an  insolvent's  estate  on  distribution. ^° 

In  re  Cramond,  17  A.  B.  R.  38  (D.  C.  N.  Y.) :  "It  may  be  well  to  remark 
that  in  my  opinion  subdivision  5  of  §  64  of  the  Bankruptcy  Act  has  no  reference 
to  liens  actually  existing  at  the  time  of  the  adjudication.  Liens  on  the  property 
of  the  bankrupt,  not  void  or  voidable  under  some  provisions  of  the  law,  whether 
obtained  and  created  by  express  contract  or  by  virtue  of  compliance  with  the  lien 
law  of  a  State,  since  the  amendment  to  the  Act,  are  first  to  be  paid,  excepting 
taxes  subject  to  abatement  for  commissions  expressly  allowed  to  referees  and 
trustees  on  all  sums  disbursed  to  creditors  in  the  one  case  and  to  any  one  in 
the  other.  While  all  liens  are,  in  a  sense,  priorities,  and  certain  priorities  may 
be  liens,  in  a  sense,  still  all  priorities  are  not  liens,  and,  in  my  opinion,  clause 
5  of  subdivision  b  of  §  64  does  not  refer,  and  was  not  intended  to  refer  to  liens 
on  the  estate  of  the  bankrupt.  It  was  assumed  that  valid  liens  would  be  paid, 
and  that  the  debts  and  expenses,  etc.,  designated  to  have  priority  would  have 
priority  of  payment  out  of  the  estate  after  liens  were  satisfied,  or  out  of  the 
proceeds  of  the  property  if  sold  subject  to  liens.  Since  the" striking  out  of  the 
words  'sums  to  be  paid  as  dividends  and  commissions,'  in  §  48,  and  the  substi- 
tution of  the  words  'on  all  moneys  disbursed  by  them,'  and  similar  change  in 
§  40  by  the  amendment  of  1902,  these  commissions  when  necessary  to  be  paid 
from  funds  subject  to  the  liens,  and  which  payment  causes  an  abatement  of 
the  lien  to  that  extent,  gain  the  priority  over  liens  by  virtue  of  the  reading  of 
§§  40  and  48  as  amended,  which  sections  now  limit  or  modify  subdivision  b  of 
§  64,  and  not  by  virtue' of  the  reading  of  §  64.  No  corresponding  amendment  was 
made  in  §  64  of  the  Act  as  it  was  not  regarded  necessary.  The  directions  of 
§§  40  and  48  are  plain  and  explicit,  and  must  be  read  in  connection  with  §  64. 
Only  in  exceptional  cases  does  the  necessity  for  applying  the  modification  arise. 
I  think  it  also  clear  that,  should  a  case  arise  where  a  laborer  has  acquired  a 
lien  by  virtue  of  the  State  lien  law  for  wages  earned  within  the  three  months 
before  the  commencement  of  proceedings,  even  should  such  lien  largely  exceed 
$300,  he  would  hold  his  lien  and  be  entitled  to  full  payment  thereof  notwith- 
standing clause  4  of  subdivision  b  of  §  64." 

§  2189.  Federal  and  State  Government  and  Municipality,  as 
Priority   Claimants. — The    federal    and   state    governments,    municipal 

89.  Bankr.  Act,  §  64  (5). 

90.  Compare,  post,  §  2205. 

2  Rem  B— 10 


1346  REMINGTON    ON    BANKRUPTCY.  ^2194 

corporations,  counties  and  quasi  public  corporations,  in  general,  may  be 
entitled  to  priority  under  §  64  (b)   (5). 

Thus,  the  federal  government  may  be  a  priority  claimant  under  §  64  (b) 
(5);  for  instance,  for  damages  for  breach  of  contract  by  contractors  ;'^i 
likewise,  a  county  may  be  a  priority  claimant. ^^ 

§  2190.  Priority  Given  to  "Any  Person"  by  United  States  Law 
Preserved. — Priorities  given  to  any  person,  by  any  of  the  laws  of  the 
United  States,  are  preserved  in  bankruptcy. 

Taxes  do  not  come  within  §  64  (b)  (5),  but  it  is  not  because  the  gov- 
ernment and  state  are  not  to  be  considered  as  being  "any  person"  within 
the  meaning  of  clause  "5,"  nor  because  taxes  are  not  also  to  be  consid- 
ered to  be  "provable  debts,"  as  seems  to  be  implied  from  the  holding  in 
Chattanooga  v.  Hill,  15  A.  B.  R.  197,  139  Fed.  600  (C.  C.  A.  Tenn.), 
but  it  is  rather  because  paragraph  "(a)"  of  the  same  section  of  the  stat- 
ute specially  provides  the  priority  for  taxes  and  therefore  takes  prece- 
dence over  the  general  provisions  of  clause  "5"  of  paragraph  "(b)." 

§  2191.  Government  Contracts. — Damages  suffered  by  the  United 
States  government  are  given,  by  federal  statute,  priority  of  payment  out 
of  the  funds  in  the  hands  of  assignees,  trustees  in  bankruptcy,  executors, 
administrators,  etc.,  in  charge  of  insolvent  estates.  Thus,  where  a  con- 
tractor for  supplying  the  government  with  paper  becomes  bankrupt,  the 
damages  suft'ered  by  the  government  have  priority  of  payment  in  bank- 
ruptcy.^^ 

§  2192.  No  Proof  of  Claims  Requisite  by  Government  to  Secure 
Priority. — Claims  of  the  United  States  entitled  to  priority  must  be  paid 
even  without  the  filing  of  a  proof  of  claim.  It  has  even  been  held  that 
the  trustee  takes  his  own  risk  in  paying  out  the  funds  without  taking 
care  of  such  claims. ^^ 

§  2193.  Year's  Limitation  for  Proving  Claims  Not  Applicable  to 
Government. — The  limitation  of  one  year  for  the  proving  of  claims  in 
bankruptcy  does  not  apply  to  claims  of  the  United  States  government. ^^ 

,§  2194.  State  Law  Priorities  Adopted  Where  Claimants  Not  in 
Classes  Already  Covered  by  Express  Bankruptcy  Priorities. — Pri- 
orities given  by  state  laws  are  adopted  by  §  64  (b)   (5)  of  the  Act;  at  any 

91.  In  re  Stoever,  11  A.  B.  R.  345,  127  Fed.  394  (D.  C.  Pa.) 

92.  In  re  Worcester  Co.,  4  A.  B.  R.  496,  102  Fed.  808  (C.  C.  A.  Mass.).  Com- 
pare, to  same  effect,  under  the  law  of  1867,  In  re  Mellor,  10  Ben.  58,  Fed.  Cases 
No.  9,401;  In  re  Southwestern  Car  Co.,  9  Biss.  76,  Fed.  Cases  No.  13,192;  In  re 
Dodge,  4  Dill.  532,  Fed.  Cases  No.  3,949. 

93.  In  re  Stoever,  11   A.  B.  R.  345,  127  Fed.  394  (D.  C.  Penn.). 

94.  In  re  Stoever,  11  A.  B.  R.  345,  127  Fed.  394  (D.  C.  Penn.).  Compare,  ante, 
§  2161. 

95.  In  re  Stoever,  11  A.  B.  R.  345,  127  Fed.  394  (D.  C.  Pa.).  Compare,  ante, 
§  2162. 


§   2196  DISTRIBUTION  TO  CREDITORS.  1347 

rate,  where  the  claimants  are  not  in  any  of  the  classes  already  covered  by 
express  bankruptcy  priorities.  Thus,  the  claim  of  a  county  for  the  labor 
of  its  convicts  is  entitled  to  priority. ^"^ 

§  2195.  State  Priorities  to  Laborers,  Where  Different  from 
Bankruptcy  Priorities. — In  some  states  other  claimants  than  simply 
"workmen,"  "clerks"  and  "servants,"  as  the  latter  terms  are  used  in 
bankruptcy,  are  entitled  to  priority  of  payment  out  of  the  funds  of  an 
insolvent  in  the  hands  of  a  court ;  and  the  amount  allowed  and  time  of 
service  for  which  priority  is  given  also  differ. ^^ 

Compare,  stronger  statement  of  rule.  In  re  Rose,  1  A.  B.  R.  68  (Ref.  Ohio): 
■"The  provisions  of  (5)  make  it  the  duty  of  the  court  to  consider,  not  only  §  64 
of  the  Bankruptcy  Act,  but  the  sections  of  the  statutes  of  the  State,  and  it 
would  be  the  duty  of  the  court  to  grant  the  demands  of  the  claimants  if  it 
should  find  that  their  respective  claims  fall  within  the  protection  of  any  of  the 
laws  of  either." 

§  2196.  Whether  State  Priorities  in  Cases  of  Assignments,  Re- 
ceiverships, etc.,  Preserved  When  Custody  Superseded  by  Bank- 
ruptcy.— Priorities  given  by  the  state  statutes  seem  to  have  been  recog- 
nized in  the  bankruptcy  court,  even  though  such  priorities  arise  by  virtue 
of  assignments  for  the  benefit  of  creditors,  receiverships,  or  other  se- 
questrations by  legal  proceedings  eventually  nullified  or  supplanted  by 
bankruptcy  proceedings.  The  state  court  is  superseded,  to  be  sure,  but 
c>.pparently  it  is  held,  by  these  decisions,  that  the  general  priorities  recog- 
nized by  its  policy  in  the  distribution  of  insolvent  estates  are  to  be  recog- 
Tiized  as  additional  priorities  in  bankruptcy  under  §  64  (b)    (5).*^^ 

In  re  Jones,  18  A.  B.  R.  212  (D.  C.  Mich.):  "The  principle  controlling  these 
■decisions  seems  to  be  that  a  creditor  shall  be  allowed  the  same  priority  under 
the  Bankrupt  Act  which  he  would  have  had,  had  not  the  latter  Act  superseded 

96.  In  re  Worcester  Co.,  4  A.  B.  R.  496,  102  Fed.  808  (C.  C.  A.  Mass.);  In  re 
Wright,  2  A.  B.  R.  596,  95  Fed.  807  (D.  C.  Mass.,  affirmed  sub  nom.  In  re 
Worcester  Co.,  4  A.  B.  R.  496,  102  Fed.  808   (C.  C.  A.  Mass.). 

97.  Instance,  for  furnishing  materials  and  supplies  to  manufacturing  concern. 
In  re  Falls  City  Shirt  Mfg.  Co.,  3  A.  B.  R.  437,  98  Fed.  592  (D.  C.  Ky.). 

In  re  Lawler,  6  A.  B.  R.  184,  110  Fed.  135  (D.  C.  Wash.):  In  this  case  the 
court  held  that  a  person  who  was  engaged  as  a  traveling  salesman  for  a  lumber 
company  was  a  "person  performing  labor"  for  such  company,  and  entitled  to 
priority  under  the  statute  of  Washington,  giving  a  prior  lien  to  persons  perform- 
ing labor  for  any  person,  company  or  corporation  in  the  operation  of  any  saw- 
mill, lumber  or  timber  company. 

Compare,  In  re  Byrne,  3  A.»  B.  R.  268,  97  Fed.  762  (D.  C.  Iowa). 

98.  Inferentially,  In  re  Lewis,  4  A.  B.  R.  51,  99  Fed.  935  (D.  C.  Mass.);  obiter. 
In  re  Burton  Bros.  Mfg.  Co.,  14  A.  B.  R.  218,  134  Fed.  157  (D.  C.  Iowa);  in- 
stance, but  not  placed  on  this  ground.  In  re  Laird,  6  A.  B.  R.  1  (C.  C.  A.  Ohio): 
This  case,  however,  violates  the  rule  that  the  Bankruptcy  Act  controls  as  to 
priorities  as  to  the  same  classes  covered  by  the  state  law. 

Contra,  In  re  Slomka,  9  A.  B.R.  636,  122  Fed.  630  (C.  C.  A.  N.  Y.),  where 
the  rule  is  laid  down  that  the  priority  being  given  only  because  of  the  assign- 
ments, and  the  assignment  itself  being  nullified  by  the  bankruptcy,  the  priorities 
fall  along  with  the  assignment — a  logical  argument  at  any  rate. 


1348  REMINGTON    ON   BANKRUPTCY.  §    2196 

the  State  laws  governing  the  distribution  of  the  estates  of  insolvent  debtors. 
Tested  by  this  rule  the  question  is:  Would  the  petitioners  have  been  given 
the  priority  claim  here,  had  the  debtor's  estate  been  distributed  under  the 
laws  of  Michigan  governing  the  distribution  of  the  estates  of  insolvents  instead 
of  under  the  Bankrupt  Act." 

Probably  tbe  question  would  turn  in  each  case  upon  the  point  whether 
the  statute  in  the  particular  instance  is  attempting  to  create  general  rights 
of  priority  in  cases  where  insolvent  estates  are  being  administered,  or 
simply  to  create  certain  rights  of  priority  in  case  certain  methods  of  dis- 
tribution of  insolvent  estates  are  being  pursued. 

In  re  Jones,  18  A.  B.  R.  214  (D.  C.  Mich.):  "Previous  to  the  passage  of  the 
present  Bankrupt  Act,  estates  of  insolvent  debtors  were  usually,  if  not  univer- 
sally, administered  in  Michigan  under  either  common-law  assignments  (later 
regulated  by  the  general  assignment  statute  of  1879),  mortgage  foreclosure, 
or  receivership  in  some  form.  They  have  seldom,  if  ever,  been  administered 
under  chapter  262,  which  relates  to  the  'Relief  of  Insolvent  Debtors,'  although 
the  provisions  of  chapter  263,  relating  to  the  'ReHef  of  Insolvent  Debtors  from 
Imprisonment,'  have  been  occasionally  invoked,  although  rarely,  as  under  the 
Michigan  Constitution  imprisonment,  for  debt  generally  is  forbidden. 
Const.  Mich.  art.  6,  §  53.  The  reports  of  the  Supreme  Court  of 
Michigan  fail  to  show  that  any  case  arising  under  chapter  262,  or  any  case  in- 
volving the  application  of  §  9675  in  question,  have  ever,  been  brought  before 
that  court.  As  indicating  what  is  meant  by  a  general  insolvency  statute,  it  is 
significant  that  the  labor  preference  statute  referred  to  has  been  applied  to 
the  distribution  of  the  estates  of  insolvents,  not  only  under  mortgage  fore- 
closure by  way  of  intervention  *  *  *^  under  statutory  asignments  for  the 
benefit  of  creditors,  in  which  preferences  are  forbidden  *  *  *,  but  also  under 
original  bill  filed  against  mortgage  and  attaching  creditors  in  possession  of  the 
debtors'  assets.  *  *  *  This  labor  preference  statute  would  probably  be 
similarly  extended  to  receiverships,  as  was  done  in  Massachusetts;  the  Mich- 
igan statute  making  express  provision  for  granting  receiverships  for  the  pro- 
tection of  labor  claimants.  3  Comp.  Laws  1897,  §  9552.  It  would  also,  no 
doubt,  apply  to  bankrupt  estates,  but  for  the  fact  that  the  Bankrupt  Act  con- 
tains express  provisions  on  the  subject  of  preference  for  labor  debts  which 
override  the  provision  of  the  statute  law.     *     *     * 

"On  the  other  hand,  and  in  sharp  contrast  to  the  general  application  of  the 
labor  insolvency  statute,  to  none  of  these  methods  of  administration  and  dis- 
tribution of  the  estates  of  insolvent  debtors  undei;  the  State  law  has  any  at- 
tempt ever  been  made  to  apply  the  provisions  of  §  9675,  here  invoked,  and 
doubtless  for  the  reason  that  that  section  is  by  its  terms  limited  to  proceedings 
under  the  chapters  included  within  the  title  in  the  1846  revision,  'Of  the  Punish- 
ment of  Fraudulent  debtors  and  the  Relief  of  Insolvent  debtors.'  In  the  absence 
of  a  bankruptcy  statute,  had  the  estate  of  this  bankrupt  been  administered  as 
an  insolvent  estate^  under  Michigan  laws,  under  either  assignment  for  ben- 
efit of  creditors,  mortgage  foreclosure,  or  receivership,  or  by  any  method  except 
that  provided  by  chapter  262  and  263  of  the  Michigan  Compilation,  the  priority 
invoked  would  not  have  been  recognized.  The  possibility  of  such  estate  being, 
administered  under  chapters  262  or  263  would  be  very  slight.  As  before  stated, 
such  administration  could  occur  only  by  way  of  relief  from  actual  imprison- 
ment or,  otherwise,  only  with  concurrence  of  the  debtor  and  creditors  repre- 
senting at   least   two-thirds   of   all   debts   owing  to   creditors   within   the    United 


§    2197  DISTRIBUTION  TO  CREDITORS.  1349 

State.  To  my  mind,  §  9675  is,  therefore,  not  'of  that  general  character  which 
can  be  supposed  to  be  within  the  purview  of  the  provision  of  the  Bankrupt 
Act  which  is  concerned  here,'  and  not  such  a  'law  of  the  State'  as  to  give  pri- 
ority under  §  64b  (5)  of  the  Bankrupt  Act.     It  follows  that  the  referee  rightly 

refused  priority   to  petitioners'  claims." 

§  2197.  Whether  State  Priorities  Dependent  on  Resort  to  Par- 
ticular Remedies,  Such  as  Insolvency  or  State  Bankruptcy  Pro- 
ceedings, to  Be  Recognized. — Whether  or  not  priorities  will  be  recog- 
nized in  the  distribution  of  an  estate  in  bankruptcy  that  are  given  by  a 
state  statute,  in  the  event  that  assets  are  sequestrated  by  state  insolvency 
or  state  bankruptcy  proceedings  or  by  assignments,'  receiverships  or  other 
state  proceedings  involving  the  administration  of  an  insolvent's  assets, 
as  an  additional  priority  under  §  64  (b)  (5),  when  such  state  proceed- 
ings have  not  actually  been  instituted,  is  also  to  be  determined  by  the  as- 
certainment of  the  true  intent  of  the  state  statute.  If  the  state 
statute  means  to  confer  the  priorities  as  substantive  rights  of  priority  in 
cases  of  the  distribution  of  insolvent  estates,  in  general,  then  of  course 
the  priority  is  to  be  recognized  in  bankruptcy  distribution ;  but  if,  on  the 
contrary,  the  right  is  wholly  special  and  dependent  upon  resort  to  a  partic- 
ular remedy,  then,  obviously,  if  that  remedy  is  inaccessible,  the  priorities 
must  likewise  fail  of  recognition  in  bankruptcy. ^^  Even  the  priorities  of 
suspended  insolvency  statutes  are  adopted  where  not  covering  the  same 
cases  covered  by  the  express  provisions  of  the  Bankrupt  Act,  and  where 
the  priorities  are  intended  to  be  given  as  substantive  rights,  not  depend- 
ent on  resort  to  a  particular  remedy. 

Some  of  the  decisions  have  carried  the  adoption  of  State  pri- 
orities to  an  unwarranted  extreme ;  in  effect,  nullifying  thereby  the  pro- 
visions of  the  Bankruptcy  Act  dissolving  legal  liens,  and  leaving  to  cred- 
itors no  advantage  in  dissolving  liens,  their  priorities  being  neverthe- 
less perpetuated ! ! 

Thus,  it  has  been  held,  that  where  attachment  costs  would  have  had 
priority  had  state  insolvency  proceedings  actually  been  instituted,  they  will 
have  priority  in  bankruptcy  under  §  64  (b)  (5),  even  though  such  pro- 
ceedings have  not  been  instituted. ^^° 

In  re  Goldberg,  16  A.  B.  R.  523,  144  Fed.  566  (D.  C.  Me.):  "*  *  *  the 
clear  intention  of  the  Maine  statute  is  that  such  costs  shall  be  paid  out  of  the 
estate,  if  it  appears  to  the  court  that  the  suit  was  commenced  in  good  faith 
for  the  benefit  of  all  the  creditors.  The  intention  of  the  Maine  legislature  was 
to  pay  such  costs  in  full  out  of  the  estate,  providing  the  estate  had  received 
an  actual  benefit  by  incurring  such  costs,  just  as  it  is  the  intention  of  Con- 
gress to  pay  the  actual  and  necessary  cost  of  preserving  the  estate  subsequent 
to  filing  a  petition  in  bankruptcy.  Courts  in  other  circuits  have  disallowed 
such  claims;    but  these   disallowances  have  been  based  generally;    so  far  as   I 

99.  In  re  Jones,  18  A.  B.  R.  214  (D.  C.  Mich.). 

100.  In  re  Lewis,  4  A.  B.  R.  51,  99  Fed.  935  (D.  C.  Mass.). 


1350  REMINGTON    ON    BANKRUPTCY.  §    2197 

can  find,  upon  the  fact  that  the  statutes  of  the  States  where  the  questions 
arose  did  not  provide  for  their  allowance  in  terms  so  specific  as  the  statutes 
of  Massachusetts  provided." 

But  there  would  be  difficulty  in  determining  which  order  of  priority 
should  thus  be  adopted  by  analogy,  where  the  state  law  prescribes  differ- 
ent  priorities    for    different    seqtiestrations. 

Compare,  In  re  Rouse,  Hazard  &  Co.,  1  A.  B.  R.  239,  91  Fed.  96   (C.  C.  A. 

Ills.) :  "Coming:  then  to  the  merits,  it  may  be  remarked  by  the  way  of  pref- 
ace that  the  several  provisions  of  the  law  of  the  State  of  Illinois  with  respect 
to  the  priority  of  payment  to  be  allowed  labor  claims,  are  not  altogether  con- 
sistent. In  the  case  of  voluntary  assignments,  the  claim  of  the  laborer  which 
is  preferred  must  have  accrued  within  three  months  next  preceding  the  makinjf 
of  the  assignment.  In  the  case  of  a  suspension  of  business  by  action  of  cred- 
itors there  is  neither  limit  as  to  time  nor  as  to  amount.  The  reason  of  the  dis- 
tinction is  not  easy  to  understand." 

The  claim  of  the  state  or  county  for  the  hire  of  its  convicts,  has  been 
given  priority  in  bankruptcy,  though  such  priority  would  not  exist  under 
the  state  statute  except  in  cases  of  state  insolvency  or  state  bankruptcy 
proceedings,  which  had  not  in  fact  been  instititted  and  which  indeed 
W'ere  not  maintainable  because  of  the  existence  of  the  Federal  Bank- 
rupt Act.  101 

In  re  Wright,  2  A.  B.  R.  594,  95  Fed.  807  (D.  C.  Mass.,  afiirmed  sub  nom.  In 
re  Worcester  Co.,  4  A.  B.  R.  496,  102  Fed.  808,  C.  C.  A.  Mass.):  "Even  if  by 
the  passage  of  the  Bankrupt  Act  the  insolvent  law  of  Massachusetts  were  so 
avoided  that  ft  has  ceased  to  be  a  law  of  Massachusetts,  yet  nothing  would 
prevent  the  legislature  of  Massachusetts,  during  the  existence  of  the  Bankrupt 
Law,  from  passing  a  statute  establishing  priorities.  Such  a  statu+e  would  have 
almost  its  sole  effect  in  establishing  priorities  under  the  Bankrupt  Law  of  the 
United  States.  It  would  be  simply  a  re-enactment  of  the  rule  regarding  the  dis- 
tribution of  insolvent  estates  which  had  prevailed  by  statute  up  to  the  passage 
of  the  Bankrupt  Law.  To  sut)pose  that  Congress  meant  to  require  such  leg- 
islation by  the  States  is  unreasonable." 

Thus,  even  costs  of  a  suit  might  be  entitled  to  priority  in  bankruptcy,  if 
entitled  to  priority  under  the  state  insolvency  laws.^^^ 

Obiter,  In  re  Daniels,  6  A.  B.  R.  700,  110  Fed.  745  (D.  C.  R.  I.):  "It  must, 
therefore,  be  accepted  as  the  law  of  this  circuit  that,  in  determining  what  laws 
of  a  State  are  in  force  for  the  purpose  of  fixing  priorities,  we  may  look  to  the 
insolvency  laws  *  *  *  ^iig  insolvency  law  of  a  State  still  remains  a  law  ior 
the  purpose  of  fixing  priorities.     *     *     * 

"The  decision  of  the  referee,  then,  cannot  be  supported  upon  the  broad  ground 
that  in  no  case  can  the  costs  which  are  preferred  under  the  insolvency  law  of 
Rhode  Island  be  entitled  to  priority,  under  §  64b     (5)  of  the  Bankruptcy  Act." 

Although,  of  course,  any  licii  therefor,  if  acquired  within  the  four 
months,  would  be  avoided  by  §  67  "f'.ios 

101.  In  re  Worcester  Co.,  4  A.  B.  R.  496,  102  Fed.  808  (C.  C.  A.  Mass.). 

102.  In  re  Goldberg,  16  A.  B.  R.  523,  144  Fed.  566  (D.  C.  Me.),  quoted  supra. 

103.  In  re  The  Copper  King,  Limited,.  16  A.  B.  R.  148,  143  Fed.  649  (D.  C. 
Calif.). 


§    2198  DISTRIBUTION  TO  CREDITORS.  1351 

And  by  the  better  opinion  if  the  attachment  lien  were  dissolved  by  §  67 
"f,"  the  effect  of  §  67  "f"  could  not  be  evaded  as  to  the  costs  by  claiming 
they  are  entitled  to  priority  under  §  64  (b)    (5).^"^ 

§  2198.  Rule  Adopting  State  Priorities,  Not  to-Override  §  67  "f" 
Annulling  "Legal"  Liens. — But  the  rule  adopting  state  priorities  is  not 
rneant  to  override  the  provisions  of  §  67  "f"  annulling  liens  by  legal  pro- 
ceedings obtained  within  four  months  of  the  debtor's  bankruptcy.  Section 
64  (b)  (5)  is  not  concerned  with  liens  acquired  by  legal  proceedings,  but 
with  priorities  on  distribution  of  an  insolvent's  assets. 

In  re  Burton  Bros.  Mfg.  Co.,  14  A.  B.  R.  218,  134  Fed.  137  (D.  C.  Iowa): 
"These  sections,  as  construed  by  the  Supreme  Court  of  Iowa,  when  complied 
with,  give  priority  of  payment  to  the  wage-earning  employee,  to  the  amount 
stated,  from  the  property  of  the  employer  which  has  been  so  seized  upon  exe- 
cution, or  placed  in  the  hands  of  a  receiver,  trustee,  or  assignee  over  all  other 
liens  upon  such  property  (except  certain  mechanics'  liens)  and  other  cred- 
itors of  the  employer.  *  *  *  Neither  of  the  petitioners  ever  presented  to 
the  officer  making  such  seizure,  or  to  the  court  from  which  the  execution  is- 
sued, the  sworn  statement  required  by  section  4020  of  the  Code,  nor  in  any 
other  manner  complied  with  the  provisions  of  the  above  named  sections.  They 
apparently  relied  solely  upon  the  levy  of  their  executions  upon  the  property 
to  secure  payment  of  their  judgments,  and  nothing  further  seems  to  have  been 
done  after  such  levy  and  prior  to  August  20,  1904,  when  the  petition  in  bank- 
ruptcy was  filed  against  the  judgment  debtors.  The  adjudication  of  bank- 
ruptcy upon  that  petition  dissolved  the  liens  of  the  petitioners  acquired  by 
the  levy  of  their  executions  upon  the  property  of  the  bankrupt.     *     *     * 

"To  have  secured  and  preserved  the  right  or  liens  given  them  by  the  State 
statute  the  petitioners  should  have  complied  with  the  provisions  of  that  statute, 
and  had  they  done  so  such  right  or  lien  might  have  been  recognized  and  en- 
forced by  the  court  of  bankruptcy.  Section  64b  (5),  Bankruptcy  Act.  Not 
having  done  so,  the  only  lien  thej^  had  was  that  acquired  by  the  seizure  of  the 
property  under  their  executions.  .When  such  liens  were  dissolved  by  the  ad- 
judication of  bankruptcy,  they  were  left  upon  a  level  with  the  other  unse- 
cured creditors   of  the  bankrupt." 

The  priority  is  not  given  because  of  the  legal  proceedings  being  super- 
seded, but  because  it  is  usually  in  connection  with  those  legal  proceedings 
which  are  nullified  by  bankruptcy  that  the  state  statute  mentions  its  priori- 
ties. 

And,  in  cases  where  the  priority  is  held  only  to  exist  in  case  a  particular 
method  of  administering  the  insolvent's  estate  is  adopted,  then  the  priority 
may  not  be  adopted  in  bankruptcy,  where  the  requisite  administration  can- 
i:ot  be  had  because  of  §  67  "f." 

Compare,  In  re  Slomka,  9  A.  B.  R.  636,  122  Fed.  630  (C.  C.  A.  N.  Y.):  "The 
State  statute  does  not  purport  to  give  employees  a  lien  upon  the  property  of  the 
employer  for  wages,  nor  to  give  them  priority  over  other  creditors  of  the 
debtor   except   when   the   debtor's   estate   i^   distributed   by   an   assignee   under   a 

104.    The  Copper  King    Ltd.,  16  A.  B.  R.  148,  143  Fed.  649  (D.  C.  Calif.). 


1352  REMINGTON    ON    BANKRUPTCY.  ^    2199 

general  assignment.  In  that  event  it  impresses  the  funds  in  the  hands  of  the 
assignee  with  a  trust.  Richardson  v.  Thurber,  104  N.  Y.  606.  If  the  estate 
is  not  distributed  under  the  assignment,  as  for  instance  if  the  assignment  should 
be  set  aside  for  fraud  or  for  invalidity  otherwise,  the  provision  is  nugatory. 
There  was  no  priority  here,  because  the  conditions  essential  to  its  recognition 
did  not  exist.  The  assets  were  not  in  course  of  administration  under  a  general 
assignment.  *  *  *  The  assignment  being  void,  it  is  as  though  it  had  never 
been  made,  and  the  property  of  the  debtor  passed  to  the  trustee  in  bankruptcy 
free  from  all  liens  or  trusts  created  by  or  resulting  from  it." 

And  the  better  rule  would  seem  to  be  that,  wherever  the  lien  of  the  costs 
would  be  dissolved  by  §  67  "f,"  then  the  priority  itself  would  not  exist. 

In  re  The  Copper  King,  16  A.  B.  R.  148,  143  Fed.  649  (D.  C.  Calif.):  "In 
some  of  the  States  certain  classes  of  debts  arising  upon  contract  are  entitled 
to  priority  of  payment  in  the  distribution  of  estates.  *  *  *  j^  ^^g  ^j^g 
purpose  of  subdivision  5,  §  64,  of  the  Bankruptcy  Act,  to  preserve  the  rights 
of  creditors  under  such  contracts;  and  it  may  extend  to  an  indebtedness  upon 
an  implied  contract  which  is  given  priority  by  a  law  of  the  State.  But,  in  view 
of  the  fact  that  attachment  liens  obtained  within  four  months  prior  to  the 
filing  of  the  petition,  including  the  lien  for  costs  in  the  attachment  proceed- 
ings, are  dissolved  by  subdivision  'c'  and  'f  of  §  67,  of  the  Bankruptcy  Act,  it 
is  not  reasonable  to  conclude  that  Congress  intended  by  subdivision  5,  of  § 
64,  to  make  the  claim  for  costs,  the  lien  of  which  is  thus  destroyed,  a  preferred 
debt." 

And  perhaps  the  true  principle  is  that  the  bankruptcy  courts  also  have 
nothing  to  do  with  superseded  or  suspended  state  insolvency  acts  in  de- 
termining priorities  in  the  distribution  of  bankrupt  estates. 

Smith  V.  Mottley,  17  A.  B.  R.  865  (C.  C.  A.  Ohio):  "*  *  *  he  referred  to 
its  insolvency  laws,  which  specify  what  liabilities  shall  be  preferred  in  in- 
solvency proceedings.  *  *  *  But  we  think  there  was  error  in  holding  that 
the  Kentucky  Insolvency  Statute  was  relevant  to  the  inquiry.  That  statute 
was  superseded  by  the  Bankruptcy  Act,  which  itself  prescribes  what  debts  and 
obligations  shall  be  given  preference." 

§  2199.  But  Claimant  Must  Comply  with  All  Regulations  and  Pre- 
requisities  of  State  Priority. — But  the  claimant  must  comply  with  all 
the  statutory  prerequisities  and  conditions  required  by  the  state  law  where 
he  is  making  his  claim  in  the  bankruptcy  court.  Thus,  where  an  employee 
forfeits  his  priority  if  he  fails  to  comply  with  the  provisions  of  the  state 
law  requiring  a  sworn  statement  of  the  employee's  claim  to  be  presented 
to  the  officer  making  the  seizure  or  to  the  court  from  which  the  execution  is- 
sued, he  forfeits  it  in  the  bankruptcy  court  under  the  same  circumstances. ^"^^ 
And  where  a  priority  given  by  a  state  statute  is  to  be  perfected  in  a 
particular  manner  (not  rendered  impossible  by  the  bankruptcy),  such  man- 
ner must  be  pursued. ^oe 

105.  In  re  Burton  Bros.  Mfg.  Co.,  14  A.  B.  R.  218,  134  Fed.  157  (D.  C.  Iowa). 

106.  In  re  Burton  Bros.  Mfg.  Co.,  14  A.  B.  R.  218.  134  Fed.  157  (D.  C.  Iowa). 


§    2202  DISTRIBUTION  TO  CREDITORS.  1353 

§  2200.  Whether,  Where  Bankruptcy  Prevents,  Compliance  Dis- 
pensed with,  or  Levy  Permitted  and  Discharge  Stayed  to  Enable 
Perfecting  of  Priority. — Where  a  priority  or  lien  given  by  a  statq  statute 
is  declared  to  be  lost  unless  followed  by  legal  proceedings  within  a 
specified  time,  either  such  conditions  subsequent  is  avoided  by  the  bank- 
ruptcy since  the  property  involved  is  already  in  the  custody  of  a  court 
and  further  legal  proceedings  are  impossible  ;^""  or  perhaps  the  bankruptcy 
court  would  permit  the  legal  proceedings  to  be  taken,  at  least  to  the  extent 
necessary  to  perfect  or  maintain  the  lien.^"^ 

§  2201.  Trustee  Cannot  Perfect  Priority  Claims. — The  trustee  can- 
not perfect  the  claims  of  the  priority  creditors  where  the  State  statutes  re- 
quire further  proceedings.  He  does  not  represent  secured  or  priority  cred- 
itors except  as  mere  custodian. ^*^^ 

§  2202.  Relative  Precedence  among  State  Priorities  Preserved. — 

The  relative  priorities  among  the  different  classes  of  claimants  entitled 
to  priorities  under  the  state  law  will  be  preserved;  and  §64(b)  (5)  of 
the  Bankruptcy  Act  does  not  level  them  to  equality  among  themselves. 

Thus,  the  relative  priorities  of  the  landlord  over  persons  who  have  fur- 
nished material  or  supplies  for  a  manufacturing  concern,  under  the  Ken- 
tucky statute,  are  preserved  in  bankruptcy. 

In  re  Falls  City  Shirt  Mfg.  Co.,  3  A.  B.  R.  437,  98  Fed.  592  (D.  C.  Ky.^: 
""The  effect  of  the  contention  of  the  material  men  here  would  be  that  though 
all  the  creditors  had  liens  created  under  the  laws  of  the  State,  and  though  by 
those  laws  some  of  these  liens  had  priority  over  others,  still  a  proper  interpre- 
tation of  the  Bankrupt  Act  would  require  a  general  leveling  of  these  liens  to 
a  common  plane,  elevating  some  and  depressing  others,  so  as  to  destroy  all 
advantage  and  all  distinction  given  by  the  State  laws  It  cannot  be  admitted 
that  such  contention  is  sound.  It  seems  to  the  court  that  it  was  obviously 
the  intention  of  Congress  to  recognize  all  liens  created  under  the  laws  of  the 
State,  and  to  leave  them  precisely  as  it  found  them." 

And,  in  Arkansas,  Georgia  and  Iowa,  and  in  several  other  States  la- 
bor claims  take  precedence  over  valid  prior  contract  liens  or  landlord's 
statutory  liens,  and  are  entitled  to  like  precedence  in  bankruptcy. ^^^^ 

Instance,  In  re  Byrne,  3  A.  B.  R.  270,  97  Fed.  762  (D.  C.  Iowa) :  "It  thus  appears 
that,  under  the  laws  of  this  State,  when  an  insolvent  estate  is  being  closed  up 
through  the  medium  of  a  receiver,  trustee,  or  assignee,  the  wages  due  employees, 

107.  In  re  Falls  City  Shirt  Mfg.  Co.,  3  A.  B._  R.  437,  98  Fed.  592  (D.  C.  Ky.). 

108.  Compare,  analogously,  as  to  the  necessity  of  judgment  against  corpora- 
tion to  fix  stockholder's  secondary  liability,  in  some  states,  In  re  Marshall  Paper 
Co.,  4  A.  B.  R.  468,  102  Fed.  872  (C.  C.  A.  Mass.).  Also,  see  ante,  "Rights  of 
Creditors  against  Sureties  and  Others  Secondarily  Liable,"  §  1524. 

109.  Analogously,  Goldman  v.  Smith,  2  A.  B.  R.  104  (Ref.  Ky.). 

110.  Instance,  Chauncey  v.  Dyke  Bros.,  9  A.  B.  R.  444,  119  Fed.  1  (C.  C.  A. 
Ark.);  In  re  Erie  Lumber  Co.,  17  A.  B.  R.  698  (D.  C.  Ga.);  In  re  Oconee  Mill 
Co.,  6  A.  B.  R.  475,  109  Fed.  866  (C.  C.  A.  Ga.). 


1354  REMINGTON    ON    BANKRUPTCY.  ,^    2203 

up  to  the  amount  of  $100  to  each  person,  for  wOrk  done  within  ninety  days  next 
preceding  the  seizure  by  judicial  process,  or  the  transfer  to  the  receiver,  trus- 
tee or  assignee  of  the  property  of  the  insolvent,  will  be  given  preference  in 
order  of  payment  over  contract  liens  existing  thereon;  and  the  same  preference 
must  be  given  to  wages  due  employees  over  liens  created  by  statute,  such 
as  the  landlord's  claim  on  behalf  of  Runyan." 

2203.  Where  Both  State  Law  and  Bankrupt  Act  Give  Priority 
to  Same  Class,  Bankrupt  Act  Excludes  State  Law. — Where  both 
a  State  law  and  the  Bankruptcy  Act  give  priority  to  the  same  class  of  debts, 
the  Bankrupt  Act  not  only  controls  the  State  law  in  the  case  of  absolute 
conflict  between  the  two,  but  by  its  express  regulation  of  these  priorities, 
excludes   the   state   law   altogether. 

Thus,  where  the  priority  claimants  under  the  state  statute  would  also 
fall  within  the  class  of  "Workmen,,  clerks  or  servants"  as  the  terms  are 
used  in  the  Bankruptcy  Act,  the  provisions  of  the  Bankruptcy  Act  will 
prevail  over  those  of  the  State  statute,  the  specific  words  of  the  Bankruptcy 
Act  taking  out  of  its  general  words  the  subjects  specified  and  confining  them 
within  the  limits  mentioned.^ ^^ 

In  re  Rouse,  Hazard  &  Co.,  1  A.  B.  R.  234,  91  Fed.  96  (C.  C.  A.  Ills.):  "In 
the  first  subdivision  Congress  addresses  itself  to  the  subject  of  labor  claims, 
and  particularly  provides  that  all  wages  that  have  been  earned  within  three 
months  before  the  date  of  the  commencement  of  proceedings  in  bankruptcy, 
not  to  exceed  $300  to  each  claimant,  shall  be  awarded  priority  of  payment. 
It  recognized,  it  must  be  assumed,  the  various  provisions  of  law  in  the  several 
States  with  respect  to  the  subject.  It  found  them  not  to  be  in  harmony,  and  in 
some  States,  as  notably  Illinois,  the  laws  upon  that  subject  not  to  be  con- 
sistent with  each  other.  It  found  limitation  as  to  time  different  in  the  dif- 
ferent States.  It  found  that  in  some  of  the  States  priority  of  payment  was  un- 
limited as  to  amount,  and  in  some  of  the  States  limited  to  so  small  a  sum  as 
$50.  With  this  divergence  within  its  knowledge,  the  Congress  spoke  to  the 
subject  specially  and  particularly,  and  limited  the  amount  to  $300,  and,  as  to 
time,  to  wages  earned  within  three  months  before  the  commencement  of  pro- 
ceedings. Can,  then,  the  subsequent  provision  of  the  law  following  immediately 
thereafter  allowing  priority  of  payment  for  all  debts  owing  to  any  person  who, 
by  the  laws  of  the  State  or  the  United  States,  is  entitled  to  priority,  be  held 
to  enlarge  the  prior  provisions  so  that  the  statute  should  be  read  that  in  any 
event  the  laborer  should  be  entitled  to  prioritj^  of  payment  in  respect  of  wages 
earned  within  three  months  prior  to  proceedings  and  in  amount  not  exceeding 
$300,  and  that  wherever  the  laws  of  the  State  of  the  residence  of  the  bankrupt 
grant  the  laborer  priority  of  payment  without  limit  as  to  time  or  amount,  or 
imposes  a  limit  in  excess  of  that  imposed  by  the  Bankrupt  Act,  he  shall  be  en- 
titled to  a  further  priority  in  payment  according  to  the  law  of  the  particular 
State.     We  think  not.     It  is  not  to  be  supposed — unless  the  language  of  the  act 

111.  But  compare,  In  re  Gerson,  1  A.  B.  R.  251  (Ref.  Penn.).  Compare,  to 
same  general  effect.  Smith  v.  Motley,  17  A.  B.  R.  865  (C.  C.  A.  Ohio);  analo- 
gously. In  re  Daniels,  6  A.  B.  R.  699,  110  Fed.  745  (D.  C.  R.  I.);  contra.  In  re 
Laird  (In  re  Coe-Powers  &  Co.),  6  A.  B.  R.  1,  109  Fed.  550  (C.  C.  A.  Ohio,  dis- 
approved in  In  re  Slonika,  9  A.  B.  R.  635,  122  Fed.  630  (C.  C.  A.  N.  Y.),  and 
apparently  receded  from  in  Smith  v.  Motley,  17  A.  B.  R.  865  (C.  C.  A.  Ohio). 


§    2203  DISTRIBUTION  TO  CREDITORS.  1355 

clearly  so  speaks — that  Congress  intended  that  in  the  administration  of  the 
act  there  should  be  a  marked  contrariety  in  the  priority  of  payment  of  labor 
claims  dependent  upon  locality.  It  is  an  elementary  principle  of  construction 
that  where  there  are  in  one  act,  or  in  several  acts  contemporaneously  passed, 
specific  provisions  relating  to  a  particular  subject,  they  will  govern  in  respect 
to  that  subject  as  against  general  provisions  contained  in  the  same  act.  Suther- 
land on  Statutory  Construction,  sec.  158." 

In  re  Slomka,  9  A.  B.  R.  635,  122  Fed.  630  (C.  C.  A.  N.  Y.) :  "If  by  the 
State  law  the  debts  were  within  the  general  description  of  clause  5,  we  are 
of  opinion  that  the  clause  would  not  apply  and  that  the  terms  of  clause 
4  supply  the  exclusive  rule  for  determining  what  debts  for  wages  are  entitled 
to  priority.  No  principle  of  statutory  construction  is  better  settled  than  that 
which  displaces  the  application  of  general  provisions  to  a  particular  subject 
when  there  are  specific  provisions  applicable  to  it  in  the  same  act.  The  sub- 
ject of  claims  for  wages  is  specifically  regulated  by  clause  4,  and  its  pro- 
visions express  the  particular  intent  of  Congress  regarding  priority  of  such 
claims.  As  these  confine  the  priority  to  wages  earned  within  the  three  months 
before  the  commencement  of  the  bankruptcy  proceedings,  debts  like  the  pres- 
ent are  not  included.  We  agree  upon  this  question  with  the  decision  of  the 
Circuit  Court  of  Appeals  for  the  Seventh  Circuit,  In  re  Rouse,  Hazard  &  Co., 
1  Am.  B.  R.  234,  91  Fed.  Rep.  96,  and  for  the  reasons  which  are  so  satisfactorily 
stated  in  the  opinion  in  that  case.  We  have  given  due  consideration  to  the  de- 
cision by  the  Circuit  Court  of  Appeals  for  the  Sixth  Circuit,  In  re  Laird,  6 
Am.  B.  R.  1,  109  Fed.  550,  but  we  are  unable  to  regard  it  as  correct." 

In  re  Shaw,  6  A.  B.  R.  501,  109  Fed.  782  (D.  C.  Penn.) :  "I  agree  with  the 
correctness  of  this  ruling  (In  re  Rouse,  Hazard  &  Co.)  which,  indeed,  seems  to 
me  to  be  scarcely  susceptible  of  doubt.  Paragraph  4  deils  specifically  v^'ith 
the  allowance  of  claims  for  wages;  and,  while  it  is  true  that  wages  might  be  iii- 
cluded  under  the  general  word  'debts,'  used  in  paragraph  5,  thus  to  include 
them  would  violate  a  well  known  rule  of  statutory  construction.  Having  been 
specifically  dealt  with  in  the  paragraph  immediately  preceeding,  it  is  almost  in- 
credible that  Congress  should  straightway  proceed  to  deal  with  them  again 
in  a  different  fashion.  To  declare  that  they  are  included  under  the  words 
'debts'  would  be  either  to  strike  paragraph  4  out  of  the  act  entirely,  or  to 
furnish  two  conflicting  rules  for  deciding  how  much  should  be  allowed  to  a  claim 
for  wages  in  priority.  The  result,  of  course,  would  be  that  a  claimant  could 
select  whichever  paragraph  gave  him  the  larger  sum.  I  need  scarcely  say  that 
such  a  result  does  not  furnish  a  rule  of  decision,  and  could  only  be  accepted 
in  case  the  language  used  by  Congress  forbade  any  other  construction.  The 
ordinary  and  natural  construction  is,  I  think,  that  paragraph  4  has  to  do  with 
wages,  and  paragraph  5  has  to  do  with  other  debts  entitled  to  priority." 

Impliedly,  In  re  Wright,  2  A.  B.  R.  592,  600,  95  Fed.  807  (D.  C.  Mass.,  af- 
firmed sub  nom.  In  re  Worcester  Co.,  4  A.  B.  R.  496,  102  Fed.  808):  "In  re 
Rouse,  Hazard  &  Co.,  33  C.  C.  A.  356,  91  Fed.  96  (1  Am.  B.  R.  234).  it  was 
held  that  a  claim  for  labor  performed  more  than  three  months  before  the  bank- 
ruptcy proceedings,  and  entitled  to  priority  under  the  insolvent  laws  of  the 
State,  was  not  entitled  to  priority  under  the  Bankrupt  Law;  but  the  decision 
was  rested  solely  upon  the  ground  that  the  specific  provisions  of  the  Bankrupt 
Act  concerning  labor  claims  were  intended  to  override  the  provisions  relating 
to  wages  made  by  the  State  statute.  That  the  exemption  accorded  by  the 
State  statute  would  have  been  valid  in  the  absence  of  the  express  provisions 
of  the  Bankrupt  Act  concerning  wages  was  conceded.  The  Bankrupt  Act 
makes  no  such  specific  provision  for  debts  due  to  States,  Counties,  and  munic- 


1356  REMINGTON    ON    BANKRUPTCY.  §    2204 

ipalities,  and  hence,  by  reference,  adopts  the  statute  of  Massachusetts  as  part 
of  its  own  provisions." 

In  re  Lewis,  4  A.  B.  R.  51,  99  Fed.  935  (D.  C.  Mass.):  "It  has  been  held 
that  State  Laws,  giving  priority  to  wages,  though  included  in  the  terms  of 
§  64b,  cl.  5,  are  yet  ineffectual,  because  the  whole  matter  of  wages  is  dealt  with 
and  regulated  by  §  64b,  cl.  4.  *  *  *  In  other  words,  although  the  laws  of 
a  State  giving  priority  to  certain  debts  are  by  §  64b,  cl.  5,  introduced  into 
the  scheme  of  the  present  Bankrupt  Act,  yet  such  State  laws  are  so  introduced 
only  so  far  as  the  debts  to  which  they  give  priority  are  not  expressly  dealt 
with  as  to  priority  in  the  Bankrupt  Act  itself.  Where  both  a  State  law  and 
the  Bajpkrupt  Act  give  priority  to  the  same  class  of  debts,  the  Bankrupt  Act 
not  only  controls  the  State  law  in  the  case  of  absolute  conflict  between  the  two, 
but,  by  its  express  regulation  of  these  priorities,  excludes  the  State  law  al- 
together." 

Obiter,  In  re  Jones,  18  A.  B.  R.  214  (D.  C.  Mich.):  "It  would  also  no  doubt 
apply  to  bankrupt  estates,  but  for  the  fact  that  the  Bankrupt  Act  contains  ex- 
press provisions  on  the  subject  of  preferences  for  labor  debts  which  override 
the  provision  of  the  statute  law." 

§  2204.  Landlord's  Priorities. — In  the  event  of  the  impounding  of 
an  insolvent  debtor's  assets,  in  several  states  the  landlord  is  entitled  to 
priority  of  payment  therefrom,  to  a  certain  extent,  varying  in  the  different 
states.  ,The  question  arises,  however,  whether,  in  most  instances,  it  is 
not  a  specific  lien  on  the  tenant's  goods  that  the  landlord  possesses,  rather 
than  a  mere  claim  for  priority. ^^^ 

Thus,  landlords  in  Delaware  are  entitled  to  priority  of  payment  out  of 
the  proceeds  of  property  seized  from  the  tenant's  premises  by  legal  pro- 
ceedings and  are  entitled  to  priority  under  §  64  (b)  (5)  ;^i-^  likewise,  in 
Pennsylvania  ;^i'*  in  Louisiana ;^^^  and  in  Kentucky,^^^  but  in  Kentucky  not 

112.  See  discussion, 'ante,  §  2188. 

113.  In  re  Mitchell,  8  A.  B.  R.  335,  116  Fed.  87  (D.  C  Del.). 

114.  Wilson  V.  Penna.  Trust  Co.,  8  A.  B.  R.  169,  114  Fed.  742  (C.  C.  A.  Penn.) ; 
In  re  Duble,  9  A.  B.  R.  121,  117  Fed.  795  (D.  C.  Penna.);  In  re  Hayward,  12  A. 
B  R.  264,  130  Fed.  720  (D.  C.  Penn.);  In  re  Gerson,  2  A.  B..  R.  170  (D.  C.  Penn.); 
In  re  Goldstein,  2  A.  B.  R.  603  (Ref.  Pa.),  even  for  rent  in  advance.  In  re 
Hoover,  7  A.  B.  R.  330,  113  Fed.  136  (D.  C.  Pa.);  In  re  Belknap,  12  A.  B.  R. 
326,  129  Fed.  646  (D.  C.  Penna.);  In  re  Lines,  13  A.  B.  R.  318,  133  Fed.  803  (D. 
C.  Pa.);  compare,  In  re  Ruppel,  3  A.  B.  R.  233,  97  Fed.  778  (D.  C.  Pa.).  But 
compare.  In  re  Whealton  Restaurant  Co.,  16  A.  B.  R.  294,  143  Fed.  921  (D. 
C.  Pa.). 

No  lien  for  rent  nor  priority  to  landlord  in  Pennsylvania  out  of  proceeds  of 
sale  of  liquor  license,  such  property  not  being  subject  to  distraint  nor  execution. 
In  re  Myers,  4  A.  B.  R.  536,  102  Fed.  869  (D.  C.  Pa.). 

Exempt  property:  Landlord's  lien:  Without  levy  the  landlord  is  entitled  to 
his  lien  in  Pennsylvania,  at  the  hands  of  the  bankruptcy  court  even  though  the 
property  is  otherwise  exempt — exemptions  being  waived  iu  the  lease.  In  re 
Sloan,  14  A.  B.  R.  438,  135  Fed.  873  (D.  C.  Pa.). 

115.  Carriage  Co.  v.  Solanas,  6  A.  B.  R.  221,  108  Fed.  532  (D.  C  La.). 

But  the  lien  does  not,  in  Louisiana,  at  any  rate,  coVer  rent  accruing  after  legal 
levy  since  the  chattels  are  held  no  longer  to  be  on  the  premises  by  the  owner's 
consent.     Carriage  Co.  v.  Solanas,  6  A.  B.  R.  221,  108  Fed.  532  (D.  C.  Ga.). 

116.  In  re  Falls  City  Shirt  Mfg.  Co.,  3  A.  B.  R.  437,  98  Fed.  592  (D.  C.  Ky.). 


§   2205  DISTRIBUTION  TO  CREDITORS.  1357 

for  future  rent  after  bankruptcy. i^"  And. he  has  priority  in  lowa/^^ 
although  in  Iowa  it  is  waived  by  the  taking  of  a  mortgage  and  the  com- 
minghng  of  rent  with  other  payments. ^^^  Likewise,  the  landlord  has 
priority  in  West  Virginia  ;^-^  and  his  priority  takes  precedence  of  all  liens 
created  after  the  beginning  of  the  tenant's  term,  and  whether  distress  war-" 
rant  be  issued  or  not.^^i 

§  2205.  Priorities  for  Furnishing  Supplies  and  Materials  for  Man- 
ufacturing Establishments:  Fiduciary  Debts  as  Guardian:  Com- 
munity Property  of  Husband  and  Wife,  etc. — There  are  various  other 
claimants  entitled  to  priority  on  the  distribution  of  an  insolvent's  estate 
under  state  law,  whose  rights  have  been  passed  upon  in  bankruptcy.  Thus 
has  been  considered  the  priority  of  those  furnishing  materials  or  sup- 
plies for  manufacturing  establishments  in  various  states. ^-^ 

A  fiduciary  debt  due  from  the  bankrupt  as  ,  guardian  in  Kentucky  is 
entitled  by  statute  to  priority  of  payment  on  distribution  regardless  of  in- 
ability to  trace  the  trust  funds,  and  it  has  the  same  priority  in  bank- 
ruptcy ;^23  ]3^-,|-  j-|ot  so  in  Michigan,  because  it  is  not  conferred  as  a  general 
right  of  priority  there. ^^^ 

Again,  the  bankruptcy  law  preserves  the  priority  of  community  cred- 
itors upon  community  property  of  husband  and  wife,  where  that  species 
of    property    right    exists. ^^s 

It  has  been  held  that  because  the  peculiar  laws  of  Louisiana  permit  an 
insolvent  husband  to  pay  back  the  "dation  en  paiement"  to  his  wife,  such 
payment  not  being  considered  fraudulent,  therefore  such  payment 
is  good  in  bankruptcy  though  made  within  the  four  months,  as  being  a 
"priority"  under  §  64  (b)  (5).i26  g^^^  such  use  of  the  term  "priority"  is 
unwarranted.  "Priority"  doubtless  means  simply  a  right  to  payment  before 
others  out  of  an  insolvent's  estate  upon  its  seizure  and  distribution.  This 
case  seems  to  have  been  a  clear  case  of  "preference"  under  §  60  although 
not  a  "fraudulent"  transfer. 


117.  In  re  Jefferson,  2  A.  B.  R.  208,  93  Fed.  948  (D.  C.  Ky.), 

118.  In  re  Byrne,  3  A.  B.  R.  268,  97  Fed.  762   (D.  C.  Ky.). 

119.  In  re  Wolf,  3  A.  B.  R.  558,  98  Fed.  74  (D.  C.  Iowa). 

120.  In  re  Mclntyre,  16  A.   B.   R.  80,  142  Fed.   593   (D.  C.  W.  Va.).      . 

121.  In  re  Mclntyre,  16  A.  B.   R.  80,  142  Fed.  593   (D.  C.  W.  Va.). 

122.  In  re  West  Norfolk  Lumber  Co.,  7  A.  B.  R.  648,  112  Fed.  767  (D.  C. 
Va.);  Mott  v.  Wissler  Mfg.  Co.,  14  A.  B.  R.  321,  135  Fed.  697  (C.  C.  A.  Va.); 
In  re  Falls  City  Shirt  Mfg.  Co.,  3  A.  B.  R.  437,  98  Fed.  592   (D.  C.  Ky.). 

123.  In  re  Crow,  7  A.  B.  R.  545,  116  Fed.  110  (D.  C.  Ky.). 

124.  In  re  Jones,  18  A.  B.  R.  206   (D.  C.  Mich.). 

125.  In  re  Chavez,  17  A.  B.  R.  641,  149  Fed.  73  (C.  C.  A.  N.  Mex.)  :  Here, 
however,  the  question  again  arises  as  to  whether  this  is  a  right  of  priority 
merely  or  a  lien. 

126.  Gomila  v.  Wilcombe,  18  A.  B.  R.  147,  151  Fed.  470  (C.  C.  A.  La.). 
Compare,   ante,   §   2188. 


1358  remington  on  bankruptcy.  §  2208 

Division  4. 

Dividends  to  General  Creditors. 

.  §  2206.  Dividends  to  General  Creditors. — Whatever  is  left  after  costs, 
expenses  and  priority  claims  have  been  paid  in  full,  is  to  be  paid  in  divi- 
dends of  equal  percentum  to  general  creditors. ^-'^ 

§  2207.  To  Be  Paid  in  Two  Dividends.— The  fund  thus  left  for 
general  creditors  is  to  be  divided  into  not  less  than  two  dividends : 

The  first  dividend  must  not  exceed  half  of  what  would  be  left  for  gen- 
eral creditors,  after  payment  of  costs  and  priority  claims  and  after  making 
allowance  for  costs,  expenses  and  priority  claims  that  probably  will  there- 
after be  allowed. 

The  final  dividend  is  not  to  be  declared  until  three  months  after  the 
first  dividend  shall  have  been  declared. ^^^ 

§  2208.  Purpose  of  Tw^o  Dividends  Protection  of  Dilatory  Cred- 
itors.— This  provision  and  the  preceding  provision  were  introduced  by 
the  amendment  of  1903.  It  had  been  found  that  the  efforts  of  Congress 
to  have  bankruptcy  proceedings  expeditious  had  resulted  in  some  instances 
in  the  estate  being  paid  out  too  rapidly,  so  that  frequently  creditors  who 
happened  for  some  cause  or  other  to  be  delayed  in  filing  their  claims,  were 
left  out.  For  this  reason  Congress  prescribed  that  where  there  w-as  a 
fund  for  distribution  to  general  creditors  there  should  always  be  at  least 
two  dividends  made  of  it  and  that  thQ.re  should  be  at  least  three  months 
between  the  first  and  last  one.  However,  owing  to  the  peculiar  wording 
of  the  amended  act,  there  is  no  hindrance  to  the- declaration  of  a  second 
dividend,  provided  it  be  not  a  "final"  dividend,  within  a  few  days  after 
the  first  dividend  ;  nor  is  there  anything  to  prevent  such  second  dividend  ab- 
sorbing almost  all  the  remaining  fund.  All  that  is  requisite  is  that  the 
final  dividend  be  not  declared  until  three  months  after  the  first  dividend. 

Not  only  claims  already  allowed  but  those  to  be  allow^ed  are  to  be  taken 

127.  Bankr.  Act,  §  65  (a) :  "Dividends  of  an  equal  per  centum  shall  be  de- 
clared and  paid  on  all  allowed  claims,  except  such  as  have  priority  or  are 
secured." 

Meaning  of  Dividends  as  Construed  before  Amendment  of  1903. — As  to 
meaning  of  word  -dividends"  as  a  basis  for  figuring  the  commissions  of  the 
referee  and  trustee  under  the  law  before  its  amendment  in  1903,  see:  In  re 
Hinckel  Brewing  Co.,  10  A.  B.  R.  692,  124  Fed.  702  (D.  C.  N.  Y.)  ;  In  re  Muhl- 
hauser,  9  A.  B.  R.  80  (Ref.  Ohio);  In  re  Coffin.  2  A.  B.  R.  344  (Ref.  Tex.);  In 
re  Gerson.  2  A.  B.  R.  352  (Ref.  N.  Y.)  ;  In  re  Barber,  3  A.  B.  R.  306,  97  Fed.  547 
(D.  C.  Minn.).  Compare,  In  re  Goldsmith.  9  A.  B.  R.  419,  118  Fed.  763  (D.  C. 
Tex.). 

128.  Bankr.  Act,  §  65  (b)  added  by  amendment  of  1903:  "Provided,  That 
the  first  dividend  shall  not  include  more  than  fifty  per  centum  of  the  money 
of  the  estate  in  excess  of  the  amount  necessary  to  pay  the  debts  which  have 
priority  and  such  claims  as  probably  will  be  allowed:  And  provided  further. 
That  the  final  dividend  shall  not  be  declared  within  three  months  after  the 
first  dividend  shall  be  declared." 


§   2213  DISTRIBUTION  TO  CREDITORS.  1359 

into  account  in  arriving  at  the  proper  dividend  to  be  declared  for  the  first 
dividend. 

§  2209.  First  Dividend. — The  first  dividend  must  be  declared  within 
thirty  days  after  the  adjudication  if  there  is  money  in  the  estate  and  if 
the  money  is  enough  to  pay  five  per  cent,  on  claims  already  allowed  after 
deducting  costs  and  other  priority  claims. ^^^ 

§  2210.  Dividend  within  Thirty  Days  after  Adjudication  Required 
Only  Where  Money  in  Estate. — Of  course,  if  the  assets  have  not  been 
converted  into  money,  the  rule  that  the  first  dividend  must  be  paid  within 
thirty  days  after  the  adjudication  does  not  apply.  It  only  applies  where 
the  assets  have  been  converted  into  money,  in  whole  or  in  part,  in  time 
for  such  dividend  to  be  declared  within  thirty  days  after  the  adjudication; 
as,  for  instance,  where  the  estate  already  has  been  converted  into  money 
by  an  assignee  or  receiver  in  the  state  court  who  has  been  obliged  to  turn 
over  the  proceeds  to  the  bankruptcy  trustee ;  also,  where  the  assets  have 
been  sold  by  the  bankruptcy  receiver  or  trustee,  as  perishable  property. 

§  2211.  Subsequent  Dividends. — Dividends  subsecjuent  to  the  first  are 
to  be  declared  upon  like  terms  as  the  first  and  as  often  as  the  amount  equals 
ten  per  cent,  or  more  and  upon  closing  the  estate. 

Dividends  may  be  declared  oftener  and  in  smaller  proportions  if  the 
judge  shall  so  order. 

It  has  been  held  that  a  meeting  of  creditors  to  declare  a  final  dividend 
may  be  combined  with  a  final  meeting. ^-^'^ 

§  2212.  Dividends  Need  Not  Be  Returned  because  of  Filing  of 
Subsequent  Claims. — Dividends  once  paid  out  need  not  be  returned  be- 
cause of  the  filing  of  subsequent  claims  that  would  have  prevented  the 
declaring  of  so  large  a  dividend  had  they  been  allowed  beforehand. ^-^^ 

§  2213.  Claims  Subsequently  Filed,  to  Receive  Prior  Dividends 
before     New  Dividend     Declared. — Creditors  filing  claims,  or  having 

129.  Bankr.  Act,  §  65  (b)  :  "The  first  dividend  shall  be  declared  within  thirty- 
days  after  the  adjudication,  if  the  money  of  the  estate  in  excess  of  the  amount 
necessary  to  pay  the  debts  which  have  priority  and  such  claims  as  have  not 
been,  but  probably  will  be,  allowed  equals  five  per  centum  or  more  of  such 
allowed  claims.  Dividends  subsequent  to  the  first  shall  be  declared  upon  like 
terms  as  the  first  and  as  often  as  the  amount  shall  equal  ten  per  centum  or  more 
and  upon  closing  the  estate.  Dividends  may  be  declared  oftener  and  in  smaller 
proportion  if  the  judge  shall  so  order." 

130.  In  re  Smith,  2  A.  B.  R.  648  (Ref.  N.  Y.). 

131.  Bankr.  Act,  §  65  (c) :  "The  rights  of  creditors  who  have  received  divi- 
dends, or  in  whose  favor  final  dividends  have  been  declared,  shall  not  be  af- 
fected by  the  proof  and  allowance  of  claims  subsequent  to  the  date  of  such 
payment  or  declarations  of  dividends." 


1360  REMINGTON    ON   BANKRUPTCY.  §   2217 

claims  allowed,  after  the  declaration  of  one  dividend  are  entitled  to  that 
dividend  first  before  another  dividend  is  declared  to  all  creditors. ^^2 

§  2214.  Need  Not  Retain  Funds  until  Expiration  of  Year's  Limita- 
tion for  Proving  Claims. — Because  creditors  are  not  prohibited  from 
proving  claims  until  the  expiration  of  a  year  after  the  adjudication,  does 
not  require  the  trustee  to  hold  the  funds  until  the  expiration  of  the  year, 
nor  does  it  prevent  the  closing  of  the  estate  beforehand. ^^^ 

In  re  Bell  Piano  Co.,  18  A.  B.  R.  185  (D.  C.  N.  Y.):  "To  say  that  a  final 
dividend  shall  not  be  declared  within  three  months  after  the  first  dividend  is  de- 
clared, does  in  my  judgment,  say  by  implication  that  a,  final  dividend  may  be  de- 
clarad  on  the  expiration  of  three  months  from  the  time  of  the  first  divi- 
dend. All  creditors  inust  have  notice  of  the  first  meeting,  and  if  the  creditors 
v/ho  have  not  yet  proved  their  claims  do  not  then  prove  them  they  may  then 
lawfully,  as  well  as  justly,  be  debarred  from  participation  in  the  funds  in  hand 
when  the  final  meeting  is  held." 

§  2215.  "Ten  Days  Notice"  of  "Dividends."— Ten  days  notice  by 
mail  must  be  given  to  all  creditors  of  the  declaration  and  of  the  time  of 
payment  of  the  dividend,  unless  the  notice  is  waived  in  writing. ^^^ 

§  2216.  "Dividend  Sheets." — Dividend  sheets,  in  the  form  prescribed 
by  the  Supreme  Court  as  No.  40,  are  to  be  made  out  by  the  referee,  stating 
the  names  of  creditors  and  the  dividend  payable  to  each,  and  delivered  by 
the  referee  to  the  trustee  for  the  latter  to  use  as  a  guide  in  paying  out  divi- 
dends. 

§  2217.  Unclaimed  Dividends. — Dividends  which  remain  unclaimed 
for  six  months  after  the  final  dividend  has  been  declared  are  to  be  paid 
by  the  trustee  into  court. ^^o 

Dividends  remaining  unclaimed  for  one  year  are,  under  thQ  direction  of 
the  court,  distributed  to  the  creditors  whose  claims  have  been  allowed  but 
not  paid  in  full,  and  after  such  claims  have  been  paid  in  full,  the  balance 
Vv'ill  be  paid  to  the  bankrupt :  Provided,  that  in  case  unclaimed  dividends 
belong  to  minors,  such  minors  have  one  year  after  arriving  at  majority  to 
claim  such  dividends. ^>^'^ 

132.  Bankr.  Act,  §  65  (c) :  "But  the  creditors  proving  and  securing  the  al- 
lowance of  such  claims  shall  be  paid  dividends  equal  in  amount  to  those  already 
received  by  the  other  creditors  if  the  estate  equals  so  much  before  such  other 
creditors  are  paid  any  further  dividends." 

Compare  practice,  before  the  amendment  of  1903  required  two  dividends, 
where  not  enough  was  left  over  to  pay  the  subsequent  creditors  the  first  divi- 
dend because  of  the  filing  of  attorney's  fee  bills  meanwhile,  In  re  Scott,  3  A. 
B.  R.  324,  93  Fed.  418   (D.  C.  Tex.). 

133.  In  re  Stein,  1  A.  B.  R.  662,  94  Fed.  124  (D.  C.  Ind.). 

134.  Bankr.  Act,  §   58   (5). 

135.  Bankr.  Act,  §  66   (a). 

136.  Bankr.  Act,  §  66  (b). 


§   2220  DISTRIBUTION  TO  CREDITORS.  1361 

§  2218.  Contracting  to  Postpone  One's  Dividend  to  That  of  Other 
Creditors. — Creditors  undoubtedly  may,  by  contract,  postpone  their  own 
dividends  to  those  of  others ;  as,  for  instance,  where,  on  reorganization  of  a 
corporation,  the  'Old  creditors  agree  that,  in  case  of  failure  of  the  new  or- 
ganization, they  will  postpone  their  dividends  to  those  of  subsequent  credi- 
tors. 

SUBDIVISION    "a." 

Adjusting  Equities  in  Dividends  among  Creditors. 

§  2219.   Adjusting  Equities  in  Dividends  among  Creditors. — The 

various  equities  existing  among  general  creditors,  and  between  creditors 
and  others  in  the  dividends,  may  be  determined  and  adjusted,  in  the  order  of 
distribution. i'^^ 

§  2220.  Postponing  Dividends  of  Some  Creditors  to  Others,  Be- 
cause of  Equities. — Under  the  power  of  the  court  to  adjust  the  equities 
existing  among  general  creditors,  it  has  been  held  that  the  claims  of  cred- 
itors who  have  not  been  guilty  of  preferences  voidable  under  the  peculiar 
provisions  of  the  Bankruptcy  Act,  but  have  been  guilty  of  conduct  which, 
under  the  ordinary  rules  of  equity,  would  make  it  inequitable  for  them  to 
share  in  the  dividends  on  an  equality  with  other  creditors,  may  be  post- 
poned to  the  claims  of  other  creditors  in  the  distribution  of  dividends. ^^8 

In  re  Rude,  4  A.  B.  R.  319,  101  Fed.  805  (D.  C.  Ky.) :  "In  order  to  settle 
and  distribute  a  bankrupt's  estate,  all  questions  necessary  to  the  ascertainment 
of  the  amount  to  be  paid  to  each  party  to  the  proceedings  must  be  adjudicated 
and  determined  by  the  court." 

Compare,  as  to  limitations  of  rule,  In  re  Girard  Glazed  Kid  Co.,  14  A.  B.  R. 
485,  136  Fed.  511  (D.  C.  Pa.):  "This  is  a  dispute  that  has  nothing  to  do  with  the 
bankruptcy  proceedings,  nor  with  the  ascertainment  of  the  true  amount  of  the 
claim.  It  is  a  controversy  growing  out  of  a  transaction  that  took  place  between 
these  two  persons,  before  the  petition  was  filed,  and  concerns  a  sum  of  money 
that  came  into  Barbara  Swartz's  possession  at  that  time,  and  ha^  remained  in  her 
possession  ever  since.  It  is  an  independent  controversy  about  the  ownership 
of  money  that  is  not  a  part  of  the  fund  for  distribution,  and  this  court  cannot 
take  jurisdiction  of  the  dispute  and  decide  it  in  the  roundabout  manner  that  lia= 
been  suggested.  If  Barbara  Swartz  has  money  in  her  possession  that  belongs 
to  Clara  Illingsvvorth  ex  aequo  et  bono,  the  proper  tribunal  is  open  for  an 
appropriate   suit.     To   take   other  money  from   the   former  and   ilecree   it   to  the 

137.  Bankr.  .\ct.  §  2   (7). 

138.  In  re  Siegel-Hillman  Dry  Goods  Co.,  7  A.  B.  R.  351  (D.  C.  Mo.,  reversed 
in  Swarts  v.  Siegel,  8  A.  B.  R.  689,  117  Fed.  13). 

In  re  Royce  Dry  Goods  Co.,  13  A.  B.  R.  267,  133  Fed.  100  (D.  C.  Mo.):  In 
this  case  it  was  suggested  that  the  dividend  on  the  claim  of  the  president  of  the 
bankrupt  corporation  should  be  subjected  to  the  priority  of  the  claim  of  a 
creditor  who  had  been  misled  by  the  false  statements  of  the  president  as  to  the 
assets  and  had  suffered  loss  in  consequence. 

Compare,  In  re  Rochford,  10  A.  B.  R.  608,  124  Fed.  182  (C.  C.  A.   S.  Dak.). 

2  Rem  B— 11 


1362  REMINGTON    ON    BANKRUPTCY.  §    2221 

latter  in  this  proceeding,  would  be  to  confuse  two  distinct  and  separate  suits, 
having  nothing  to  do  with  each  other.  Of  the  action  in  bankruptcy,  the  District 
Court  has  jurisdiction;  but  it  has  no  jurisdiction  of  a  suit  to  recover  from  Bar- 
bara Swartz  any  excess  of  payments  that  she  may  have  received  under  the 
agreement  of  January  20,  1903." 

Thus,  again,  where  certain  of  the  private  creditors  of  a  husband  who  had 
become  such  before  his  failure  and  the  selhng  out  of  his  business,  under  a 
composition  arrangement  to  his  wife,  are  subsequently  paid  in  full  by  him, 
but  without  her  knowledge,  while  acting  as  her  manager,  it  was  held  that 
such  creditors  might  not  share  on  an  equality  with  other  creditors  in  the 
dividends. ^^^  Thus,  also,  where  a  chattel  mortgage  was  withheld  from  rec- 
ord by  agreement,  but  no  claim  was  made  thereunder,  the  debt  itself  was 
held  to  be  provable  but  subordinate  to  the  claim  of  one  from  whom  a  loan 
was  secured  on  representations  made  at  the  mortgagee's  instance  that  the 
property  was  clear  and  free,  the  money  being  used  to  pay  the  mortgagee. ^^"^ 
Again,  where  the  holder  of  the  bankrupt's  note  had  received  a  preferen- 
tial payment  on  account  from  the  bankrupt,  and  the  endorser  had  paid  after 
the  bankruptcy  the  balance  due  thereon,  it  was  held  that  the  bankruptcy 
court  would  adjust  the  equities  by  requiring  the  endorser  to  surrender  the 
preference  in  the  first  instance  rather  than  have  the  creditor  surrender  and 
then  come  upon  the  endorser  to  make  up  the  deficiency. ^^^  And  the  court, 
it  has  been  held,  may  postpone  the  dividends  of  a  creditor  who  has  entered 
into  a  combination  to  hinder,  delay  and  defraud  the  other  creditors. 

In  re  Headley,  3  A.  B.  R.  272,  97  Fed.  765  (D.  C.  Mo.)  :  "Urder  all  the  authorities, 
this  was  a  fraudulent  combination  and  scheme,  which  should  postpone  the  claim 
of  said  bank  for  the  amount  of  said  judgment  against  the  bankrupt  estate.  The 
Bankrupt  Law  is  administered  upon  lines  of  equity  jurisprudence,  and,  as  be- 
tween contending  creditors,  the  bankrupt  court,  in  the  interest  of  fair  deal- 
ing and  good  conscience,  has -the  unquestioned  power  to  postpone  the  claim  of 
such  a  creditor  in  favor  of  the  other  creditors." 

Undoubtedly,  also,  certain  creditors  could  by  contract  or  estoppel  cause 
their  claims  to  be  subordinated  to  other  creditors,  even  to  other  unsecured 
creditors. ^^- 

§  2221.  Thus,  Dividing  Fund,  on  Setting  Aside  Void  Transfer, 
Solely  among  "Subsequent"  Creditors. — Likewise,  it  has  been  held 
that  the  court  may  divide  the  fund  among  subsequent  creditors  to  the  exclu- 
sion of  antecedent  creditors,  where  an  unrecorded  chattel  mortgage  by  the 
state  law  is  void  only  as  to  subsecjuent  creditors. ^^-'^ 

139.  Tn  re  Knox,  3  A.  B.  R.  371,  98  Fed.  585  (D.  C.  N.  Y.). 

140.  Tn  re  Ewald  &  Brainard,  14  A.  B.  R.  267,  135  Fed.  168   (D.  C.  Iowa). 

141.  In  re  Seigel-Hillman  Dry  Goods  Co..  7  A.  B.  R.  351  (D.  C.  Mo.,  re- 
versed in  Swarts  v.  Siegcl,  8  A.  B.  R.  689,  117  Fed.  13). 

142.  See  ante,  §  2218. 

143.  In  re  Cannon,  10  A.  B.  R.  64,  ]21  Fed.  583   (D.   C.  S.  C). 


§    2227         •  DISTRIBUTION  TO  CREDITORS.  1363 

§  2222.  Rquiring  Surrender  of  Illegal  Advantage  before  Allowing 
to  Share  in  Dividends. — The  court,  it  has  been  held,  may  require  the 
surrender  of  an  illegal  advantage  obtained  by  one  creditor  over  others  be- 
fore allowing  his  claim  to  share  in  the  dividends.^'*-* 

And  in  the  same  case  it  was  held  that  this  is  so,  although  the  debt  sought 
to  be  allowed  is  a  diflferent  one  from  that  upon  which  the  illegal  advantage 
accrued. 

§  2223.  Requirement  of  Surrender  of  Preferences  before  Allowing 
to  Share  in  Dividends. — The  court  also  has  power  expressly  conferred 
by  §  S7  of  the  act  not  to  allow  a  creditor  who  has  received  a  preference 
\oidabIe  under  §  60  to  share  in  dividends  until  the  preference  is  surren- 
dered. This  subject  however,  has  been  treated  in  extenso  in  previous  parts 
of  this  treatise. ^"^^ 

subdivision  '"b." 

Subjection  of  Dividends  by  Garnishment  and  Equitable  Action. 

§  2224.  Dividends  Not  to  Be  Subjected  by  Garnishment. — The  trus- 
tee may  not  be  garnisheed  for  dividends 'in  his  hands.  The  dividend  does 
not  belong  to  the  creditor  until  it  is  paid  to  him.^^'^ 

§  2225.  But  Probably  May  Be  by  Equitable  Action.— But  probably 
dividends  may  be  subjected  by  equitable  action  wherein  a  receiver  is  ap- 
pointed to  apply  to  the  bankruptcy  court  for  the  dividends. 

§  2226.  But  Bankruptcy  Court  No  Jurisdiction  to  Entertain  Such 
Action. — But  the  bankruptcy  court  will  not  entertain  such  an  action. ^^" 

§  2227.  If  Bankrupt  Garnishee,  Trustee  to  Respond. — Where  the 
bankrupt  was  garnishee  in  a  proceedings  pending  at  the  time  of  bankruptcy, 
the  trustee  may  be  required  to  respond,  but  only  to  the  extent  of  dividends 

144.  In  re  Chaplin,  S  A.  B.  R.  121,  115  Fed.  162  (D.  C.  Mass.):  In  this  case 
a  debtor,  entering  into  a  composition  before  bankruptcy  with  his  creditors, 
secretly  paid  one  of  them  more  than  the  amount  stated  in  the  composition;  the 
court  held  the  preference  so  given  to  be  fraudulent  and  voidable  for  two  rea- 
sons; (1)  because  the  transaction  was  an  oppression  of  the  debtor  by  the  cred- 
itor; (2)  because  it  was  a  fraud  committed  by  both  the  debtor  and  the  preferred 
creditor  upon  the  other  creditors  ignorant  of  the  preference;  and  the  court 
further  held  that,  on  subsequent  bankruptcy,  such  preference  should  not  be 
treated  as  a  set-off  either  to  reduce  the  preferred  creditor's  claim  or  against 
the  dividend  to  be  received  thereon,  but  must  be  surrendered  before  the  cred- 
itor could   prove  an  independent   debt. 

145.  See  ante,  §  768. 

146.  [1867]  In  re  Cunningham,  19  N.  B.  Reg.  276;  [1867]  In  re  Chisholm,  4 
Fed.  526;  [1867]  Gilbert  VeQuimby,  1  Fed.  Ill;  [1867]  In  re  Kohlsaat,  18  N. 
B.  Reg.  570. 

147.  Compare,  analogously.  In  re  Girard  Glazed  Kid  Co.,  14  A.  B.  R.  -185,  136 
Fed.  511  (D.  C.  Pa.). 


1364  REMINGTON    ON   BANKRUPTCY.  §    2230 

clue  the  party  i^"^^  and  the  garnishment  proceeding  may  be  stayed  until  the 
dividend  can  be  ascertained. ^^^  The  bankruptcy  court  retains  jurisdiction 
however,  and  the  state  court  can  enforce  its  order  only  through  application 
to  the  bankruptcy  court. ^^^ 


Attorney's  Lien  on  Client's  Dividend. 

§  2228.  Bankruptcy  Court  Has  Jurisdiction  over  Attorneys'  Lien 
Claims. — Liens  claimed  by  attorneys  for  services  rendered  in  the  ba,nk- 
ruptcy  proceedings,  upon  dividends  coming  to  clients,  may  be  adjudicated 
in  the  bankruptcy  court. ^^^ 

§  2229.  Attorney's  Right  to  Lien. — Probably  an  attorney  in  bank- 
ruptcy proceedings  may  assert  a  lien  on  his  client's  dividends,  for  services 
performed  in  relation  thereto. ^^^ 

Presumably  the  right  to  such  lien  would  not  be  determined  by  local  law, 
as  would  be  the  case  had  the  lien  originated  before  bankruptcy,  but  would 
be  regulated  wholly  by  general  bankruptcy  practice.  The  case  In  re  Rude, 
4  A.  B.  R.  319,  101  Fed.  805  (D.  C.  Ky.),  seems  to  be  the  only  case  on 
the  point  under  the  present  law. 

Division  5. 

Administration  and  Distribution  oe  Partnership  and  Individuai, 
Assets  and  Debts  in  Partnership  and  in  Individuai.  Bank- 
ruptcies Respectively. 

SUBDIVISION    "a." 

Administration  and  Distribution  in  Partnership  Bankruptcies  in 

General. 

§  2230.  In  General. — In  cases  where  partnerships  are  in  bankruptcy 
the  administration  of  the  estate  and  the  distribution  of  the  assets  follow 
rules  of  their  own.  Owing  to  the  dual  capacity  of  a  member  of  a  partner- 
ship, an  anomalous  condition  exists.     A  partnership,  is  an  association  of 

148.  In  re  St.  Albans  Fdy.  Co.,  4  A.  B.  R.  594  (Ref.  Vt.). 

149.  In  re  St.  Albans  Fdy.  Co.,  4  A.  B.  R.  594  (Ref.  Vt). 

150.  In  re  St.  Albans  Fdy.  Co.,  4  A.  B.  R.  594  (Ref.  Vt.). 

151.  In  re  Rude,  4  A.  B.  R.  319,  101  Fed.  805  (D.  C.  Ky.). 

152.  In  re  Rude,  4  A.  B.  R.  319,  101  Fed.  805  (D.  C.  Ky.).  Compare,  Cowley 
V.  R.  R.  Co.,  159  U.  S.  575;  compare,  R.   R.  Co.  z'.  Pettus,  113  U.  S.   127. 

Attorney's  Fee  as  Part  of  Mortgage  or  Mechanic's  Lien. — As  to  attorney's  fee 
claimed  as  part  of  mortgagee's  lien,  see  In  re  Roche,  4  A.  B.  R.  369,  101  Fed. 
956  (C.  C.  A.  Tex.).     Also,  see  ante,  §  671. 

As  to  attorney's  fee  claimed  as  part  of  lien  on  foreclosure  of  mechanics'  lien 
in  state  court,  see  In  re  Adamo,  18  A.  B.  R.  180  (D.  C.  N.  Y.). 


§    2231  DISTRIBUTION  TO  CREDITORS.  1365 

individuals,  and  yet  in  many  of  its  relations  is  to  be  considered  an  entity. 
The  members  are  in  the  bankruptcy  court  in  two  capacities,  as  partners  and 
also  as  individuals.  There  are  several  distinct  yet  connected  estates  thrown 
together  in  one  administration,  and  the  creditors  of  each  have  their  sep- 
arate rights  and  at  the  same  time  have  their  rights  to  share  in  the  surplus 
of  the  other's  estate.  It  will  be  well,  even  at  the  risk  of  repetition,  to  lay 
down,  separately,  some  of  the  rules  relative  to  the  administration  of  part- 
nership bankruptcies. 

§  2231.  Where  Partnership  Bankrupt,  Individual  Estates  Brought 
in  Though  Individuals  Not  Adjudged  Bankrupt. — Whether  or  not  the 
partners  are  adjudicated  bankrupt  individually  as  well  as  partne^rs,  the 
individual  estate  of  each  member  is  nevertheless  brought  into  the  bank- 
ruptcy court  for  administration. ^^^ 

Dickas  v.  Barnes  Tr.,  15  A.  B.  R.  567,  140  Fed.  849  (C.  C.  A.  Ohio):  "For 
the  appellants  it  is  contended  that  the  court,  having  refused  to  declare  them 
bankrupts,  had  no  authority  to  treat  them  and  their  property  as  if  they  were 
bankrupts.  Although  there  are  several  assignments  of  error  on  each  appeal, 
they  all  rest  on  this  contention.  The  argument  is  that  not  being  bankrupts  they 
are  not  subject  to  the  jurisdiction  of  the  bankruptcy  court;  that  the  refusal 
to  declare  them  bankrupts  put  an  end  to  the  authority  of  the  court  to  retain 
control  of  their  property  for  the  purpose  of  the  bankruptcy  proceeding;  and  it 
is  complained  that  the  court  by  its  order  in  effect  denied  to  them  the  immunity 
to  which  they  were  entitled  by  reason  of  the  provisions  of  the  Bankruptcy  Act. 
By  §  4b  wage  earners  and  tillers  of  the  soil  are  excepted  from  those  who  may 
be  adjudged  involuntary  bankrupts.  And  for  our  present  purpose  we  think 
the  other  appellants,  who  committed  no  act  of  bankruptcy,  might  be  regarded 
as  standing  on  the  same  footing  as  those  who  by  reason  of  their  occupation 
were  exempt  from  an  adjudication  of  bankruptcy.  It  may  be  conceded  that 
but  for  the  relation  of  these  parties  to  the  partnership,  the  contention  they  make, 
would  be  supported  by  perfectly  adequate  reasons.  But  on  account  of  that  re- 
lation other  conditions  exist.  One  who  combines  with  others  in  a  partnership 
enterprise  becomes  bound  for  the  payment  of  the  partnership  debts.  As  part- 
ner he  shares  the  fortunes  of  the  partnership.  In  certain  circumstances  it  may 
become  subject  to  the  exercise  of  the  powers  of  a  court  of  bankruptcy  where 
its  resources  will  be  gathered  in  to  satisfy  the  claims  of  creditors.  One  of 
those  resources  is  the  liability  of  the  partner,  for  which  his  individual  property 
stands  charged.  It  is  true  that  by  virtue  of  the  rule  in  equity,  as  well  as  in 
bankruptcy,  for  the  marshaling  and  distribution  of  assets,  his  individual  prop- 
erty is  first  applicable  to  the  payment  of  his  private  debts,  if  there  be  any;  the 
surplus  then  becomes  assets  for  the  payment  of  the  partnership  creditors. 
These  consequences  of  partnership  are  not  derived  from  the  Bankrupt  Act,  but 
from  the  general  law;  and  a  partner  is  not  relieved  from  them  by  his  exemp- 
tion from  an  adjudication  of  bankruptcy.  If  bankruptcy  does  not  supervene, 
they  would  be  worked  out  by  a  court  of  general  jurisdiction,  and  the  partner 
would  be  a  party,  a  necessary  party,  to  the  record  so  that  its  liability  for  the 
firm  debts  could  be  enforced.  In  the  bankruptcy  court  the  partner  may  be 
brought  before  the  court  for  the  same  purposes.     In  order  to  reach  his  property 

153.    Bankr.  Act,  §  6  (c). 


1366  REMIXGTOX    ON    BAXKRUPTCY.  §    2233 

for  the  payment  of  the  firm  debts,  it  must  be  ascertained  what  surplus  there 
will  be  after  paying  his  private  debts.  It  is  said,  however,  that  this  must  be 
done  in  a  State  court.  But  however  this  might  be  if  he  were  a  stranger,  the 
partner  is  not  to  be  regarded  as  a  stranger,  but  as  a  party  to  the  bankruptcy 
proceedings;  and  the  court  had  authorit}-  to  take  such  proceedings  as  were 
necessary  to  ascertain  what  assets  were  available  and  to  subject  them  to  the 
requirements  of  the  case  before  it." 

In  re  Wing  Yick  Co.,  13  A.  B.  R.  757  (D.  C.  Hawaii):  "i\lthough  a  partner- 
ship may  be  adjudged  bankrupt  without  adjudging  the  partners  bankrupt,  yet 
in  such  case  both  the  partnership  assets  and  the  individual  assets  of  the  part- 
ners are  administered  by  the  trustee  and  marshaled  to  prevent  preferences  and 
secure  the  equitable  distribution  of  the  property  of  the  several  estates." 

Obiter,  In  re  Meyer,  3  A.  B.  R.  559,  98  Fed.  976  (C.  C.  A.  N.  Y.) :  "We  are 
of  the  opinion  that  it  is  the  scheme  of  these  provisions  to  treat  the  partnership 
as  an  entity  which  may  be  adjudged  a  bankrupt  by  voluntary  or  involuntary 
proceeding,  irrespective  of  any  adjudication  of  the  individual  partners  as  bank- 
rupt, and  upon  an  adjudication  to  draw  to  the  administration  the  individual 
estates  of  the  partners  as  well  as  the  partnership  estate,  and  marshal  and  dis- 
tribute them  according  to  equity.  The  assets  of  the  individual  estates  and  the 
debts  provable  against  them  can  be  ascertained  without  adjudicating  the  indi- 
vidual partners  bankrupt.     The  language  does  not  require  such  an  adjudication." 

§  2232.  And  "Consent"  Not  Necessary. — It  has  been  held,  to  be 
sure,  that  where  an  individual  member  is  not  also  adjudged  bankrupt  or 
does  not  "consent."  the  adjudication  of  the  partnership  will  not  draw  into 
the  administration  the  individual  estate  ;^^^  nor  even  permit  administration 
of  the  firm  assets  ;^^^  but  these  rulings  arise  from  a  misconception  of  the 
scope  of  §  5  (h)  :  "Consent"  is  requisite  only  when  it  is  sought  to  adminis- 
ter firm  assets  in  an  individual  bankruptcy ;  certainly  not  w-hen  it  comes 
to  the  administration  of  a  bankrupt  partnership  itself.  Clearly  §  5  (h) 
so  reads.  Without  the  statutory  provision  the  rtile  would  necessarily  be 
the  same ;  for  the  firm  would  not  be  insolvent  unless  each  and  every  mem- 
ber were  also  insolvent.  No  "consent"  of  the  individtial  member  is  req- 
uisite -in  cases  of  partnership  bankruptcies  for  administration  either  of 
firm  assets  or  of  individual  assets. ^■^'^ 

§  2233.  Partnership  Trustee,  Trustee  Also  of  Individual  Estates. — ■ 

As  previously  noted. ^•'"  the  creditors  of  the  partnership  elect  the  trustee 
in  partnership  bankruptcies. 

The  trustee  elected  by  the  partnership  creditors  becomes,  by  virtue  of 
his  ofifice,  trustee  of  each  of  the  individual   estates  of  the  sieveral  part- 

154.  Strauss  v.  Hooper,  5  A.  B.  R.  228,  105  Fed.  590  (D.  C.  X.  Car.).  Com- 
pare, ante,  §  65. 

155.  In  re  Blair,  3  A.  B.  R.  580  (D.  C.  N.  Y.). 

156.  Compare    post,  §  2251. 

157.  See  ante,  §  866.  Bankr.  Act,  §  5  (Id)  :  "The  creditors  of  the  partnership 
shall  appoint  the  trustee."  Obiter,  In  re  Eagles  &  Crisp,  3  A.  B.  R.  733,  99  Fed. 
696  (D.  C.  N.  Car.). 


§    2236  DISTRIBUTION    TO    CREDITORS.  1367 

ners.i-'^''      i^^^d  {[^is.  is  so,  even  where  the  incHvidual  member  is  not  him- 
self, individually,  a  bankrupt. 

Thus,  even  where  an  individual  member  is  not  himself  a  bankrupt,  it 
has  been  held,  that  his  assignee  may  be  ordered  summarily  to  turn  over 
the  individual  assets  for  administration  in  the  partnership  bankruptcy, ^^'^ 
although  this  decision  carries  the  rule  too  far,  the  nullification  of  the  assign- 
nient  being  dependent  upon  the  assignor's  adjudication  as  bankrupt,  and 
where  he  is  not  adjudged  bankrupt,  the  state  court  retaining  jurisdiction. ^^"^ 

§  2234.  Separate  Accounts  to  Be  Kept  and  Joint  Expenses  Ap- 
portioned.— The  administrations  of  the  partnership  estate,  and  of  the 
several  individual  estates  of  the  diiTerent  partners,  are  to  be  kept  distinct. 
Separate  accounts  are  to  be  kept  and  joint  expenses  are  to  be  "appor- 
tioned."^''^ 

§  223?.  Property  Originally  Individual,  Becoming  Partnership,  to 
Be  Administered  as  Such. — Property  originally  owned  by  one  or 
more  of  the  partners,  and  used  in  the  partnership  business,  may  be  joint 
or  separate  estate,  as  may  be  agreed  upon  between  the  partners  either  in 
writing  or  by  parol  agreement.  ^*5  2 

§  2236.  Agreement  Not  Necessarily  Express. — The  parol  agreement 
need  not  be  express  but  may  be  proved  by  a  course  of  conduct,  as  by  entries 
upon  the  partnership  books,  or  by  circumstantial  evidence. ^''•^ 

Thus,  real  estate  standing  in  one  partner's  name  may  be  shown  to  be 
partnership  property. ^^-^ 

158.  Bankr.  Act,  §  5  (c)  :  "The  court  of  bankruptcy  which  has  jurisdiction  of 
one  of  the  partners  may  have  jurisdiction  of  all  the  partners  and  of  the  admin- 
istration of  the  partnership  and  individual  property." 

159.  In  re  Stokes,  6  A.  B.  R.  262,  106  Fed.  312  (D.  C.  Penna.). 

160.  But  a  lien  suffered  by  a  member  of  a  bankrupt  partnership  to  be  taken 
on  his  individual  property,  by  legal  proceedings,  within  four  months  of  the  part- 
nership, has  been  held  not  avoided  by  the  partnership  bankruptcy.  In  re 
Lehigh  Lumber  Co.,  4  A.  B.  R.  221,  101  Fed.  216  (D.  C.  Pa.). 

161.  Bankr.  Act,  §  5  (d) :  "The  trustee  shall  keep  separate  accounts  of  the 
partnership  property  and  of  the  property  belonging  to  the  individual  partners." 

Bankr.  Act,  §  5  (e)  :  "The  expenses  shall  be  paid  from  the  partnership  prop- 
erty and  the  individual  property  in  such  proportions  as  the  court  shall  deter- 
mine." 

162.  Instance  of  cr)ntribution  to  partnership  enterprise  evidenced  in  writing: 
Seat  in  stock  exchange  standing  in  one  partner's  name.  In  re  Hurlbutt,  13  A.  B. 
R.  50,  135  Fed.  504  (C.  C.  A.  N.  Y.)'. 

Instance  of  facts  insufficient  to  prove  contribution:  Seat  in  stock  exchange; 
Burleigh  v.  Foreman,  12  A.  B.  R.  88,  130  Fed.  13  (C.  C.  A.  Mass.). 

163.  In  re  Swift,  9  A.  B.  R.  237,  118  Fed.  348  (D.  C.  Mass.,  reversed  for  in- 
sufficiency of  facts,  Burleigh  z:  Foreman,  12  A.  B.  R.  88,  C.  C.  A.).  Compare, 
analogously,  In  re  Jones,  8  A.  B.  R.  626  (D.  C.  N.  Car.,  reversed  sub  nom. 
Davis  i:  Turner,  9  A.  B.  R.  704,  120  Fed.  605,  C.  C.  A.). 

164.  In  re  Mosier,  7  A.  B.  R.  268,  112  Fed.  138  (D.  C.  Vt.) ;  In  re  Groetzinger, 
11  A.  B.  R.  723,  127  Fed.  814  (C.  C.  A.  Penn.,  affirming  6  A.  B.  R.  399). 


1368  REMINGTOX    ON   BANKRUPTCY.  ^    2238 

§  2237.  Partnership  Debts  "Provable"  against  Individual  Both  in 
Partnership  and  in  Individual  Bankruptcy,  Likewise  Individual 
Debts  against  Partnership. — Partnership  debts  are  "provable"  against 
the  individual  estates  of  the  several  members,  either  in  partnership  cases 
or  in  individual  cases;  and  likewise  individual  debts  are  "provable"  against 
the  partnership  share  of  the  individual  members  either  in  partnership  or 
individual  cases :  the  priority  of  right  to  share  in  the  particular  fund  does 
not  affect  the  provability. 

In  re  Hee,  13  A.  B.  R.  8  (D.  C.  Hawaii):  "It  is  not  necessary  for  the  court 
to  decide  this  point  because  it  makes  no  difference  as  to  their  right  of  petition- 
ing for  the  adjudication  of  L.  Hee  as  a  bankrupt,  whether  they  were  creditors 
of  a  partnership  of  which  he  was  a  member  or  whether  they  were  creditors  of 
L.  Hee  in  his  individual  capacity,  a  partner  of  the  partnership  being  liable  for 
all  the  partnership  debts." 

Thus,  partnership  debts  are  provable  in  the  individual  bankruptcy  of  a 
member.i*^^ 

In  re  Bates,  4  A.  B.  R.  56,  100  Fed.  263  (D.  C.  Vt.) :  "*  *  *  the  individual 
assets  may  have  been  applied  to  individual  debts  to  the  exclusion  of  partner- 
ship debts  till  after  the  individual  debts  are  all  paid,  and  there  may  never  be 
anything  whatever  to  go  to  the  partnership  creditor;  but  his  debt  is  none  the 
less  provable.  Whether  a  debt  is  provable  depends  upon  the  nature  of  the  lia- 
bility, and  not  upon  whether  there  are  assets,  or  there  is  any  prospect  of  assets, 
applicable  to  it.  This  partnership  debt  is  a  simple  contract  debt  of  the  part- 
nership, and  a  simple  contract  liability  of  the  bankrupt,  and  the  individual 
debt  is  a  similar  liability,  and  both  are  of  the  provable  class." 

In  re  Mercur,  2  A.  B.  R.  627,  95  Fed.  634  (D.  C.  Pa.):  "The  creditors  of  a 
partnership  are  also  creditors  of  each  individual  member,  and  have  a  right  to 
petition  against  him,  as  well  as  against  the  firm.  This  has  been  several  times 
decided,  and  is  supported  by  principle  no  less  than  by  authority.  How  far  the 
partnership  creditors  may  be  entitled  to  share  in  the  distribution  of  the  sepa- 
rate property  of  each  member  is  a  distinct  question,  which  can  only  be  de- 
termined hereafter  when  the  assets  come  to  be  marshaled." 

§  2238.  Partnership  Creditors  to  Exhaust  Partnership  Assets,  In- 
dividual Creditors  to  Exhaust  Individual  Assets;  Each  to  Share  in 
Other  Only  in  Surplus. — Partnership  creditors  have  the  right  to  be  first 
paid  in  full  out  of  the  partnership  assets  before  any  other  creditors ;  and 
individual  creditors  have  the  right  to  be  first  paid  in  full  out  of  the  re- 
t^pective  individual  estates  before  any  other  creditors ;  but  the  creditors  of 
the  partnership  estate  may,  after  exhausting  the  assets  of  the  partnership 
€state  share  in  any  surplus  of  the  individual  estates  left  after  paying  the 
creditors  of  the  individual:  and  vice  versa. ^^^ 

165.  Jarecki  Mfg.  Co.  v.  McElwaine,  5  A.  B.  R.  751,  107  Fed.  249  (C.  C.  Ind.); 
Loomis  v.  Wallblom,  13  A.  B.  R.  687,  94  Minn.  392;  In  re  Kaufman,  14  A.  B.  R. 
393,  136  Fed.  262  (D.  C.  N.  Y.) ;  impliedly.  In  re  Hartman,  3  A.  B.  R.  65,  96 
Fed.  593  (D.  C.  Iowa);  impliedly.  In  re  McFaun,  3  A.  B.  R.  66,  96  Fed.  592  (D. 
C.  Iowa);  Deaf  &  Dumb  Institute  v.  Crockett,  17  A.  B.  R.  237  (N.  Y.  Sup.  Ct. 
App.  Div.). 

166.  Bankr.  Act,  §  5  (f)  :  "The  net  proceeds  of  the  partnership  property  shall 
be  appropriated  to  the  payment  of  the  partnership  debts,  and  the  net  proceeds 


§    2238  DISTRIBUTION    TO    CREDITORS.  1369 

In  re  Stein  &  Co.,  11  A.  B.  R.  536,  127  Fed.  547  (C.  C.  A.  Ills.):  "The  pres- 
ent Bankruptcy  Act  recognized  the  equitable  rule  that  partnership  property  is 
primarily  a  fund  for  the  payment  of  copartnership  debts,  and  that  the  interest 
of  a  copartner  is  subject  to  that  special  equity,  and  attaches  only  to  the  surplus 
remaining  after  the  payment  of  the  copartnership   debts." 

Vaccaro  v.  Security  Bk.,  4  A.  B.  R.  482,  103  Fed.  436  (C.  C.  A.  Tenn.)  :  "It 
is  true  that  in  equity  the  individual  debts  of  a  partner  are  entitled  to  be  first 
paid  out  of  the  individual  property  and  firm  debts  out  of  partnership  property, 
but  in  each  case  the  surplus,  after  providing  for  the  preferred  debt,  is  apvpHcable 
to  the  payment  of  debts  of  the  other  class. 

"This  too  is  the  order  of  payment  prescribed  by  §  5  of  the  Bankrupt  Act  of 
1898." 

Obiter,  Buckingham  v.  First  Nat.  Bk.,  12  A.  B.  R.  469,  131  Fed.  849  (C.  C. 
A.  Tenn.) :  "This  is  a  statutory  statement  of  a  general  rule  early  adopted  in 
England  (Ex  parte  Crowder,  2  Vernon  706),  upon  which,  subsequently,  an  ex- 
ception was  engrafted  to  the  efiFect  that  firm  creditors  may  share  in  the  indi- 
vidual assets  in  competition  with  individual  creditors,  if  there  be  no  firm  assets 
and  no  solvent  partner." 

Jacobs  V.  Van  Sickel,  10  A.  B.  R.  519,  123  Fed.  340  (D.  C  X.  J.):  "Then, 
too,  Kline  may  be  assumed  to  know  that  in  any  bankruptcy  proceedings,  even  if 

of  the  individual  estate  of  each  partner  to  the  payment  of  his  individual  debts. 
Should  any  surplus  remain  of  the  property  of  any  partner  after  paying  his  in- 
dividual debts,  such  surplus  shall  be  added  to  the  partnership  assets  and  be  ■ 
applied  to  the  payment  of  the  partnership  debts.  Should  any  surplus  of  the 
partnership  prtiperty  remain  after  paying  the  partnership  debts,  such  surplus 
shall  be  added  to  the  assets  of  the  individual  partners  in  the  proportion  of  their 
respective  interests  in  the  partnership." 

Bankr.  Act,  §  5  (g) :  "The  court  may  permit  the  proof  of  the  claim  of  the 
partnership  estate  against  the  individual  estates,  and  vice  versa,  and  may  mar- 
shal the  assets  of  the  partnership  estate  and  individual  estates  so  as  to  prevent 
preferences  and  secure  the  equitable  distribution  of  the  property  of  the  several 
estates." 

In  re  Wilcox,  2  A.  B.  R.  117,  94  Fed.  84  (D.  C.  Mass.);  In  re  Janes.  13  A.  B. 
R.  341,  133  Fed.  912  (C.  C.  A.  N.  Y.,  reversing  11  A.  B.  R.  792);  Jarecki  Mfg. 
Co.  I'.  McElwaine,  5  A.  B.  R.  751,  107  Fed.  249   (D.   C.   Ind.);   In  re  Denning,  8 

A.  B.  R.  133,  144  Fed.  219   (D.  C.  :Mass.)  ;  inferentially.  In  re  Groetzinger.  11  A. 

B.  R.  723,  127  Fed.  814  (C.  C.  A.  Pa.,  affirming  6  A.  B.  R.  399);  inferentially.  In 
re  Corcoran,  12  A.  B.  R.  283  (Ref.  Ohio,  affirmed  by  D.  C.)  ;  In  re  Hobbs  &  Co., 
16  A.  B.  R.  548,  145  Fed.  211   (D.  C.  W.  Va.). 

This  rule  is  said  to  apply  only  in  cases  where  both  the  partnership  and  the 
individual  estates  are  before  the  court  for  distribution.  Conrader  v.  Cohen,  9 
A.  B.  R.  619,  121  Fed.  801  (C.  C.  A.  Penn.),  affirming  In  re  Conrader,  9  A.  B.  R.. 
85,  118  Fed.  676. 

Contra,  In  re  Wilcox,  2  A.  B.  R.  117,  94  Fed.  84  (D.  C.  Mass.). 

After  the  expiration  of  the  year  within  which  claims  maj^  be  filed,  a  creditor 
Avho  holds  a  firm  note  with  individual  meinbers'  endorsements  thereon,  and  who 
has  proved  the  same  solely  against  the  partnership  estate,  will  not  be  permitted 
to  amend  so  as  to  prove  them  against  the  individual  estates  as  well.  In  re 
McCallum,  11  A.  B.  R.  447,  127  Fed.  768  (D.  C.  Penn.). 

This  rule  is  said  to  be  simpl}^  declaratory  of  the  common  rule  of  equity  so 
far  as  concerns  the  right  of  partnership  creditors  to  priority  of  payment  out  of 
firm  assets,  but  to  state  a  new  rule  as  to  individual  creditors;  for  in  equity  part- 
nership creditors  have  a  lien  on  partnership  assets  for  the  payment  of  firm 
debts,  but  individual  creditors  have  no  such  lien  on  individual  assets. 

In  re  Mosier,  7  A.  B.  R.  268,  112  Fed.  138  (D.  C.  Vt.)  :  "Partnership  creditors 
have  a  lien,  in  equity,  upon  partnership  property  for  the  payment  of  partnership 
debts.  *  *  *  gy^  individual  creditors  have  no  lien  at  common  law  or  in 
equity,  upon  individual  property  against  partnership  creditors  for  individual 
debts.  That  right  is  provided  for  by,  and  rests 'wholly  upon,  the  Bankrupt 
Law."     Inferentially,  In  re  Janes,  13  A.  B.  R.  341,  133  Fed.  912  (C.  C.  A.  X.  Y.). 


1370  REMINGTON    ON    BANKRUPTCY.  §   2241 

Van  Sickel  were  a  partner  in  Grant  Bros.,  in  the  administration  of  the  estates 
of  the  partnership  and  of  the  partners  in  bankruptcy  the  individual  estate  of  each 
partner  was  primarily  liable  for  the  payment  in  full  of  his  individual  debts." 

In  re  Alosier,  7  A.  B.  R.  269,  112  Fed.  138  (D.  C.  Vt.) :  "Partnership  creditors 
have  a  lien  in  equity,  upon  partnership  property  for  the  payment  of  the  partner- 
ship debts.  Washburn  v.  Bank,  19  Vt.  278.  This  right  is  expressly  provided  for 
in  the  Bankrupt  Law.  Section  5f.  But  individual  creditors  have  no  lien,  at 
common  law  or  in  equity,  upon  individual  property,  against  partnership  credit- 
ors for^individual  debts.  *  *  *  That  right  is  provided  by,  and  rests  wholly 
upon,  the  Bankrupt  Law." 

No  "exceptions"  are  to  be  allowed  to  the  rule;  even  where  a  partnership 
and  all  its  members  are  adjudicated  bankrupt  in  the  same  proceedings  and 
there  are  no  partnership  assets  but  only  individual  assets — the  individual 
creditors  must  nevertheless  be  first  satisfied  out  of  the  individual  estates 
and  partnership  creditors  may  only  shape  in  any  surplus. i**' 

§  2239.  Section  5  Refers  Only  to  Actual  Partnerships,  Not  Those 
by  "Holding  Out."— The  provisions  of  §  5  of  the  Bankruptcy  Act  refer 
only  to  cases  of  actual  partnerships  between  the  parties,  not  to  partnerships 
that  are  merely  such  as  to  creditors  by  "holding  out"  or  otherwise. ^^^^ 

§  2240.  Obligations  Signed  by  Firm  Name,  Prima  Facie  Allowable 
as  Firm  Debts. — Obligations  signed  by  the  firm  in  the  firm  name  are  prima 
facie  allowable  against  the  partnership  estate. ^^'^ 

Thus,  an  accommodation  indorsement  in  the  firm  name  made  by  one  part- 
ner will  bind  the  partnership  in  the  hands  of  a  bona  fide  holder.^'" 

§  2241.  Individual  Debt  Assumed  by  Firm  Provable  against  Part- 
nership if  Sufficient  Consideration. — The  individual  debt  of  a  part- 
ner may  be  assumed  by  the  firm,  if  sufficient  consideration  exists ;  and  the 
debt  will  become  a  provable  debt  against  the  firm  estate  in  bankruptcy. 

Thus,  notes  of  a  new  firm  are  given  on  sufficient  consideration  when 
given  to  pay  the  debts  of  individual  partners  equal  to  the  value  of  the  re- 
spective shares  contributed  by  each.^'i  Likewise,  where  a  firm  assumes  all 
of  one  partner's  assets  and  liabilities,  the  partner's  individual  liabilities  be- 
come firm  liabilities  and  are  supported  by  sufficient  consideration,  and  the 
transaction  is  not  within  the  statute  of  frauds. i'^-    Again,  a  firm  note  given 

167.  In  re  Janes,  13  A.  B.  R.  341,  133  Fed.  912  (C.  C.  A.  X.  Y.);  In  re  Wilcox,  > 
2  A.  B.  R.  117,  94  Fed.  84  (D.  C.  Mass.). 

168.  In  re  Kenney,  3  A.  B.  R.  353,  97  Fed.  554  (D.  C.  N.  Y.,  affirmed  in  5 
A    B.  R.  355,  105  Fed.  897,  itself  affirmed  in  Clarke  v.  Larrimore.  188  U.  S.  486). 

169.  Merchants'  Bank  v.  Thomas,  10  A.  B.  R.  299,  121  Fed.  306  (C.  C.  A. 
Miss.). 

170.  Union  Nat"l  Bank  v.  Neill,  17  A.  B.  R.  841   (C.  C.  A.  Tex.). 

But  a  sealed  note  in  South  Carolina  does  not  bind  the  firm  unless  the  act  of 
both  partners.     Pollock  v.  Jones,  10  A.  B.  R.  616,  124  Fed.  163  (C.  C.  A.  S.  Car.;. 

171.  ^Merchants'  Bk.  v.  Thomas,  10  A.  B.  R.  299,  121  Fed.  306  (C.  C.  A.  Miss.). 

172.  In  re  Dresser,  13  A.  5.  R.  747,  135  Fed.  495  (C.  C  A.  X.  Y.). 


§   2244  DISTRIBUTION    TO    CREDITORS.  1371 

by  both  partners  is  a  valid  partnership  debt  where  it  is  given  for  an  existing 
business  debt  of  the  original  partner,  who  had  sold  a  half  interest  in  his 
business  on  condition  that  the  incoming  partner  assume  half  of  such  debt.^^^ 

Notes  given  by  the  firm  to  settle  up  a  partner's,  embezzlement  of  gov- 
ernment money,  are  valid  against  the  firm,  wdiere  the  embezzled  money  went 
to  pay  firm  debts. ^"^ 

On  the  other  hand,  notes  signed  in  the  firm  name  by  one  partner  and  given 
by  him  to  a  bank  in  renewal  of  an  individual  indebtedness,  the  bank  having 
knowledge,  are  not  provable  against  the  partnership  estate  in  bankruptcy, 
where  there  is  not  sufficient  evidence  that  the  partnership  had  assumed  the 
indebtedness.^"^ 

§  2242.    But  Assumption  Must  Be  Acquiesced  in  by  Creditor. — 

But  the  assumption  by  the  firm  must  be  with  the  knowledge  and  consent  or 
acquiescence  of  the  creditor,  else  the  obligation  remains  individual. 

Thus,  the  entry  of  an  individual  partner's  debt  on  the  firm  books,  un- 
known to  the  creditor,  and  payments  thereon  from  time  to  time  with  firm 
checks,  do  not  change  the  character  of  the  debt  to  that  of  a  firm  obliga- 
tion.^'^^ 

§  2243.  Loan  to  Enable  Partner  to  Furnish  Contributory  Share 
Not  Firm  Debt. — A  loan  made  by  a  third  party  to  enable  one  to  furnish 
his  contributory  share  io  a  partnership  enterprise  is  not  a  firm  debt. 

Thus,  loans  by  two  fathers  to  set  up  their  sons  as  partners  in  the  same 
business,  evidenced  by  notes  signed  by  both  sons  in  their  respective  individ- 
ual names,  were  held  not  to  be  firm  obligations,  although  the  money  went 
into  the  firm  business. ^'^  And  claims  for  advancements  to  further  the 
firm  enterprise  of  a  partner  in  an  illegal  or  ultra  vires  partnership,  com- 
posed of  a  corporation  and  another  partnership,  may  not  be  proved  against 
the  other  partnership ;  and  the  corporation  which  was  a  de  facto  partner 
may  not  prove  its  advancements  to  the  partnership  enterprise,  as  a  debt 
against  the  partnership,  on  the  theory  that  it  was  not  a  partner  because  of 
the  ultra  vires. ^'^  But  its  advances  made  prior  to  its  entry  into  the  ultra 
vires  partnership  to  the  others  partners  (the,  present  bankrupts)  may  be 
proved  against  the  other  partners. ^"^ 

§  2244.  Mere  Joint  Obligations,  Not  Amounting  to  Partnership 
Debts,  Not  Allowable,  on  Par  with  Firm  Debts. — Mere  joint  obliga- 

173.  Dacovich  v.  Schley,  13  A.  B.  R.  752.  134  Fed.  72  (C.  C.  A.  Ala.). 

174.  In  re  Speer  Bros..  16  A.  B.  R.  524  (D.  C.  Ore.). 

175.  First  Nat'l  Bk.  of  Miles  City  v.  State  Nat'l  Bk.,  12  A.  B.  R.  429,  131  Fed. 
422  (C.  C.  A.  Mont.,  affirming  In  re  Mclntire,  12  A.  B.  R.  429). 

176.  Hibberd  v.  McGill,  12  A.  B.  R.  101,  129  Fed.  590  (C.  C.  A.  Pa.,  affirming 
In  re  Wiseman,  10  A.  B.  R.  550,  123  Fed.  185). 

177.  Strause  v.  Hooper,  5  A.  B.  R.  225  (D.  C.  N.  Car.). 

178.  Wallerstein  v.  Ervin,  7  A.  B.  R.  256,  112  Fed.  124  fC.  C.  A.  Penn.,  affirm- 
ing In  re  Ervin,  6  A.  B.  R.  356,  109  Fed.  135). 

179.  In  re  Ervin,  7  A.  B.  R.  480,  114  Fed.  596  (D.  C.  Penn.). 


1372  RKMINGTON    ON   BANKRUPTCY.  §   2247 

tions,  not  amounting  to  partnership  obligations,  are  not  allowable  against 
firm  assets  on  a  par  with  firm  debts. 

In  re  Weisenberg  &  Co.,  12  A.  B.  R.  418  (D.  C.  Ky.) :  "It  is  certain  that  if, 
for  either  reason  the  notes  in  question  must  be  treated  as  joint  debts,  they  can- 
not be  allowed  as  valid  claims  against  the  firm  assets,  on  a  par  with  firm 
creditors." 

§  2245.  Parol  Evidence  Admissible  to  Show  Obligations  Appar- 
ently Individual,  to  Be  Firm  Debts.— Parol  evidence  is  admissible  to 
show  that  obligations  apparently  individual  are  in  reality  firm  debts. ^^^ 

Thus,  parol  evidence  is  admissible  to  show^  written  obligations  signed  in 
the  individual  names  of  the  several  partners  nevertheless  to  be  firm  ob- 
ligations ;  such  being  held  as  to  notes  and  a  chattel  mortgage  in  the  individ- 
ual names  of  the  partners  upon  all  the  firm  goods,  even  where  the  notes 
were  under  seal. 

§  2246.  Partnership  Released  by  Creditor's  Acceptance  of  Individ- 
ual Obligation. — The  partnership,  on  the  other  hand,  may  be  released  from 
its  obligation  on  a  firm  debt  by  the  creditor's  acceptance  of  the  individ- 
ual obligation  of  one  of  the  partners  therefor. ^^^ 

§  2247.   Secret  Partner's  Claim,  Not  Debt  against  Partnership. — 

A  secret  partner's  claim  is  not  to  be  allowed  as  a  debt  against  the  partner- 
ship.^^^ 

180.  In  re  Weisenberg  &  Co.,  12  A.  B.  R.  418  (D.  C.  Ky.) ;  Davis  v.  Turner, 
9  A.  B.  R.  704,  120  Fed.  605  (C.  C.  A.  N.  Car.,  reversing  In  re  Jones,  8  A.  B.  R. 
626,  116  Fed.  341). 

In  re  Shattuck  &  Bugh,  6  A.  B.  R.  56  (Ref.  N.  Y.) :  In  this  case  the  court 
held  that  claims  based  on  notes  signed  in  individual  names  of  the  copartners, 
who  were  the  sons  of  the  persons  who  loaned  the  money  on  them  and  became 
endorsers  on  other  notes,  where  the  payees  gave  the  credit  to  the  firm  and  not 
to  the  individuals,  and  the  proceeds  of  the  notes  were  used  in  the  business  of 
and  for  the  benefit  of  the  firm,  were  claims  against  the  partnership. 

In  re  Weisenberg  &  Co.,  12  A.  B.  R.  418  (D.  C.  Ky.) :  In  this  case  the  court 
held  that  a  claim  upon  the  joint  note  of  two  partners  could  not  be  allowed 
against  the  partnership  estate  in  bankruptcy  or  on  a  par  with  firm  creditors: 
but  that  parol  evidence  was  admissible  to  show  the  liability  of  the  makers  of 
the  note  to  be  in  fact  the  liability  of  the  firm. 

The  presumption  that  a  partner  has  knowledge  of  entries  in  the  firm  books 
is  rebutted  by  his  uncontradicted  testimony  that,  though  he  could  have  had 
access  to  the  books,  he  never  examined  them.  First  Nat.  Bk.  zj.  State  Bk.,  12 
A.  B.  R.  429,  131  Fed.  422  (C.  C.  A.  Mont.,  affirming  In  re  Mclntire,  12  A.  B. 
R.  787,  132  Fed.  265  (D.  C.  Mont.). 

But  the  creditor's  testimony,  that  he  intended  to  give  credit  to  the  firm,  has 
been  held  inadmissible.     In  re  Weisenberg  &  Co.,  12  A.  B.  R.  418  (D.  C.  Ky.). 

181.  In  re  Lehigh  Lumber  Co.,  4  A.  B.  R.  221,  101  Fed.  216  (D.  C.  Pa.). 

182.  Instance,  Rush  v.  Lake,  10  A.  B.  R.  455,  122  Fed.  561  (C.  C.  A.  Wash.,  re- 
versing In  re  Clark,  7  A.  B.  R.  96,  111  Fed.  893). 


2251  DISTRIBUTION  TO  cre;ditors.  1373 


Partnership    Debts    and   Assets    in     Individual    Bankruptcies    in 

General. 

§  2248.  Trustee  in  Individual  Bankruptcy  of  Partner  Not  to  Inter- 
fere with  Firm  Assets,  without  Consent. — A  trustee  in  bankruptcy  of 
an  individual  partner  has  no  right  to  interfere  with  the  firm  assets  [with- 
out the  consent  of  the  partner  not  bankrupt]. ^^^ 

Moses  V.  Pond,  4  A.  B.  R.  655  (N.  Y.  Sup.  Ct.) :  "There  is  no  view  of  the 
scope  of  the  Bankrupt  Act  which  requires  the  trustee  to  assume  possession  of 
the  property  of  others,  or  of  a  partnership,  because  merely  the  individual  he 
represents  has  the  ultimate  remainder  in  whatever  is  left  after  paying  the  debts 
of  the  partnership,  and,  possibly,  the  superior  interest  of  the  deceased  part- 
ner." 

In  re  Pierce,  4  A.  B.  R.  489,  102  Fed.  977  (D.  C.  Wash.):  "If  the  adminis- 
trator (of  the  deceased  partners  estate)  will  voluntarily  surrender  possession 
of  the  estate,  the  trustee  may  take  it;  but  the  trustee  cannot  take  possession 
of  any  property  of  which  the  administrator  has   custody  without  his   consent." 

§  2249.  Member  Bankrupt,  but  Partnership  Not,  Remaining  Part- 
ners to  Account  for  Bankrupt's  Share. — Where  partnership  property 
in  which  an  individual  bankrupt  has  an  interest  as  one  of  the  partners,  is 
not  in  the  custody  of  the  bankrupt's 'trustee,  the  bankrupt's  interest  therein 
is,  in  general,  to  be  treated  like  any  other  joint  interest  a  bankrupt  might 
have.  The  only  right  of  the  creditor's  trustee  is  to  require  the  persons 
who  hold  the  remaining  interests  and  have  possession  of  the  partnership 
property,  to  account  for  the  bankrupt's  interest. ^^^ 

§  2250.  In  What  Court  Trustee  to  Seek  Accounting. — The  trustee 
must  seek  such  accounting  in  the  court  which  would  have  had  jurisdiction 
had  there  been  no  bankruptcy.  And  a  state  court  already  in  possession 
need  not  turn  over  the  assets  \^^^  saved  that  in  case  questions  of  preference 
or  transfers  voidable  as  to  creditors  are  involved,  the  bankruptcy  court,  of 
course,  might  have  jurisdiction  in  conformity  with  the  usual  rules. 

§  2251.  Partnership  Affairs  Not  to  Be  Administered  in  Individual 
Bankruptcy,  Except  by  Consent. — And  the  partnership  aifairs  are  not 

183.  Ludowici  Tile  Roofing  Co.  v.  Penn.  Inst.,  8  A.  B.  R.  739  (D.  C.  Pa.);  com- 
pare, In  re  Mercur,  10  A.  B.  R.  505,  122  Fed.  384  (C.  C.  A.  Pa.). 

It  has  been  held,  that  a  trustee  in  bankruptcy  of  a  partnership  may  by  sum- 
mary order  in  the  bankruptcy  proceedings  obtain  surrender  of  assets  in  the 
hands  of  an  assignee  or  administrator  of  one  of  the  individual  members  of  the 
partnership  although  such  member  is  not  himself  a  bankrupt.  In  re  Stokes,  6 
A.  B.  R.  262,  106  Fed.  312  (D.  C.  Penna.).  This  decision  does  not  seem  to  be 
correct. 

184.  Deaf  &  Dumb  Institute  v.  Crockett,  17  A.  B.  R.  240  (N.  Y.  Sup.  Ct.  App. 
Div.). 

185.  Inferentially,  obiter,   jMoses  v.   Pond,  4  A.   B.  R.  655   (N.  Y.   Sup.   Ct.). 


1374  REMIXXTOX    ox    BANKRLPTCY.  §    2254 

f 

to  be  administered  by  the  trustee  of  the  individual  bankrupt  without  the 
consent  of  the  remaining  members. ^^^ 

§  2252.  But  May  Be  So  Administered  if  Nonbankrupt  Partner 
Consents. — But  partnership  assets  may  be  administered  in  the  individ- 
ual bankruptcy  proceedings  of  one  of  the  partners,  if  the  other  partner  or 
partners  consent. ^^" 

§  22-53.  "Consent,"  a  Question  of  Fact. — \\'hen  it  is  that  the  remain- 
ing partners  shall  be  deemed  to  have  given  "consent"  to  the  administration 
of  their  partnership  affairs  in  the  individual  bankruptcy  proceedings  of  a 
bankrupt  partner,  is  a  question  of  fact  to  be  arrived  at  from  a  consideration 
of  all  the  circumstances. 

For  the  remaining  partner  to  stand  idly  by  without  protest,  when  the  trus- 
tee of  his  bankrupt  partner  has  assumed  administration  of  the  partnership 
assets,  has  been  held  to  be  such  an  acquiescence  as  will  amount  to  a  consent 
to  have  the  partnership  affairs  administered  in  the  individual  bank- 
ruptcy. ^^^ 

§  2254.  Partnership  Property  Comes  into  Individual  Bankruptcy 
Burdened  with  Lien  in  Favor  of  Firm  Creditors. — Where  partner- 
ship property  comes  into  the  custody  of  the  trustee  of  the  individual 
estate  of  one  of  the  partners  who  is  bankrupt,  it  comes  into  the  custody 
with  a  lien. upon  it  in  favor  of  partnership  creditors,  and  the  trustee  must 
satisfy  them  therefrom  before  individual  creditors. ^^^ 

186.  Bankr.  Act,  §  5  (h) :  "In  the  event  of  one  or  more  but  not  all  of  the 
members  of  a  partnership  being  adiudged  bankrupt,  the  partnership  property 
shall  not  be  administered  in  bankruptcy,  unless  by  consent  of  the  partner  or 
partners  adjudged  bankrupt;  but  such  partner  or  partners  not  adjudged  bank- 
rupt shall  settle  the  partnership  business  as  expeditiously  as  its  nature  will  per- 
mit, and  account  for  the' interest  of  the  partner  or  partners  adjudged  bankrupt." 
.  In  re  Pierce,  4  A.  B.  R.  489,  102  Fed.  977  (D.  C.  Wash.);  Moses  v.  Pond,  4 
A.  B.  R.  655  (Sup.  Ct.  N.  Y.). 

This  provision  does  not  apply  to  cases  where  the  nonconsenting  partner  it 
an  infant.     In  re  Dunnigan  Bros.,  2  A.  B.  R.  628,  95  Fed.  428   (D.  C.  Mass.). 

See  In  re  Blair,  3  A.  13.  R.  588,  99  Fed.  76  (D.  C.  N.  Y.),  for  a  curious  misun- 
derstanding of  this  section,  the  court  therein  evidently  considering  that  even  in 
partnership  cases  firm  assets  may  not  be  administered  in  bankruptcy  except  by 
consent  of  the  partner  not  adjudged  bankrupt. 

See  In  Strause  v.  Hooper,  5  A.  B.  R.  228,  105  Fed.  590  (D.  C.  N.  Car.),  for 
another  evident  misunderstanding  of  this  section,  the  court  therein  considering 
that  it  means  that  in  partnership  cases  the  individual  estates  are  not  necessarily 
drawn  into  the  administration  of  the  firm  assets. 

This  provision  does  not  apply  where  the  nonconsenting  partner  has  sold  out 
to  the  remaining  partner.  In  re  Denning,  8  A.  B.  R.  133,  114  Fed.  219  (D.  C. 
Mass.). 

187.  In  re  Harris,  4  A.  B.  R.  132,  108  Fed.  517  (Ref.  Ohio,  affirmed  by  D.  C) ; 
In  re  Pierce,  4  A.  B.  R.  489,  102  Fed.  977. (D.  C.  Wash.). 

188.  In  re  Harris,  4  A.  B.  R.  132,  102  Fed.  517  (Ref.  Ohio,  affirmed  by  D.  C); 
compare,  analogouslj^  Chem.  Xat.  Bk.  v.  Meyer,  1  A.  B.  R.  565,  98  Fed.  976  (D. 
C,  N.  Y.,  affirmed  In  re  Meyer,  3  A.  B.  R.  559,  97  Fed.  757). 

189.  In  re  Mosier,  7  A.  B.  R.  268,  112  Fed.  138  (D.  C.  Vt.) ;  inferentially.  In  re 
Head  &  Smith,  7  A.  B.  R.  556,  114  Fed.  489  (D.  C.  Ark.);  In  re  Denning,  8  A.  B. 
R.  136  (D.  C.  Mass.). 


§    2255  •       DISTRIBUTION    TO    CREDITORS.  1375 

§  2255.  Individual  Creditors  Exhaust  Individual  Property,  Firm 
Creditors,  Firm  Property — Each  Sharing  only  in  Any  Surplus  of 
Other. — Individual  debts  should  first  be  paid  out  of  the  individual  bank- 
rupt's individual  estate ;  partnership  debts  out  of  the  partnership  property, 
precisely  as  in  cases  where  a  partnership  itself  is  in  bankruptcy. ^^^ 

Euclid  Nat'l  Bk.  v.  Union  Trust  Co.,  17  A.  B.  R.  834  (C.  C.  A.  W.  Va.,  af- 
firming In  re  Henderson,  16  A.  B.  R.  91,  142  Fed.  588):  '"The  language  of  sub- 
section 'f  would  seem  to  be  too  clear  to  admit  of  serious  doubt  as  to  its  mean- 
ing, namely,  that  the  estate  of  the  individual  bankrupt  should  be  first  applied 
to  individual  debts,  and  those  of  the  firm  to  the  firm  debts,  and  that  only  the 
surplus  of  the  estate  over  and  above  what  was  necessary  to  pay  the  individual 
debts  on  the  one  hand,  or  the  social  creditors  on  the  other,  could  be  used  and 
applied  alike  to  the  payment  and  adjustment  of  the  individual  and  partnership 
debts,  as  the  case  may  be.  Indeed,  the  Act  plainly  limits  this  latter  applica- 
tion of  the  assets  to  the  surplus  thereof,  as  distinguished  from  the  estate  gen- 
erally." 

In  re  Mills,  2  A.  B.  R.  667,  95  Fed.  269  (D.  C.  Ind.) :  "The  general  rule  in 
this  kind  of  cases  is  thus  stated  by  Chancellor  Kent:  'The  joint  creditors  have 
the  primary  claim  upon  the  joint  fund,  in  the  distribution  of  the  assets  of  bank- 
rupt or  insolvent  partners,  and  the  partnership  debts  are  to  be  settled  before 
any  division  of  the  funds  takes  place.  So  far  as  the  partnership  property  has 
been  acquired  by  means  of  partnership  debts,  those  debts  have,  in  equity,  a 
priority  of  claim  to  be  discharged;  and  the  separate  creditors  are  only  entitled, 
in  equity,  to  seek  payment  from  the  surplus  of  the  joint  fund  after  satisfaction 
of  the  joint  debts.  The  equity  of  the  rule,  on  the  other  hand,  equally  requires 
that  the  joint  creditors  should  only  look  to  the  surplus  of  the  separate  estates 
of  the  partners  after  pa3'ment  of  the-  separate  debts.'  3  Kent.  Comm.  (lOth 
Ed.)   p.   78." 

To  the  same  effect,  Vaccaro  v.  Security  Bk.,  4  A.  B.  R.  482,  103  Fed.  436  (C. 
C.  A.  Tenn.) :  "It  is  true  that  in  equity  the  individual  debts  of  a  partner  are 
entitled  to  be  first  paid  out  of  individual  property  and  firm  debts  out  of  partner- 
ship property,  but  in  each  case  the  surplus,  after  providing  for  the  preferred 
debts,  is  applicable  to  the  payment  of  debts  of  the  other  class." 


190.  In  re  Wilcox,  2  A.  B.  R.  117,  94  Fed.  84  (D.  C.  Mass.,  cited  with  approval 
in  In  re  Daniels,  6  A.  .B.  R.  700,  110  Fed.  745  [D.  C.  N.  Y.),  and  not  with  dis- 
favor in  Buckingham  z:  Bank,  12  A.  B.  R.  469,  131  Fed.  192  (C.  C.  A.  Tenn.); 
In  re  Henderson,  16  A.  B.  R.  91,  128  Fed.  527  (D.  C.  W.  Va.);  obiter,  Jacobs  f. 
Van  Sickel,  10  A.  B.  R.  519,  123  Fed.  340  (D.  C.  N.  J.);  In  re  Bates,  4  A.  B.  R. 
263  (D.  C.  Vt.),  quoted  ante,  §  2237.  In  re  Corcoran,  12  A.  B.  R.  283  (Ref. 
Ohio,  affirmed  by  D.  C);  Jarecki  Mfg.  Co.  v.  McElwaine,  5  A.   B.  R.  751,  107 

Fed.  249  (C.  C.  Ind.);  In  re  Wiseman,  10  A.  B.  R.  550,  123  Fed.  185   (D.  C.  

affirmed  sub  nom.  Hibberd  z:  McGill,  12  A.  B.  R.  101). 

Hibberd  v.  McGill,  12  A.  B.  R.  101,  129  Fed.  590  (C.  C.  A.):  In  an  individual 
bankrtiptcy,  a  creditor  is  not  bound  by  the  entry  of  the  partnership  books  of 
his    claim   and   payments   thereon   as    a   partnership    obligation. 

Inferentially,  In  re  Janes,  13  A.  B.  R.  341,  133  Fed.  912  (C.  C.  A.  N.  Y., 
reversing  In  re  Janes,  11  A.  B.  R.  792);  obiter.  In  re  Mason  &  Son,  2  A.  B.  R. 
64  (Ref.  R.  I.);  obiter,  In  re  Daniels,  6  A.  B.  R.  700,  110  Fed.  745  (D.  C. 
R.  I.);  Deaf  &  Dumb  Institute  v.  Crockett.  17  A.  B.  R.  233  (N.  Y.  Sup.  Ct. 
App.  Div.);  obiter.  In  re  Diamond,  17  A.  B.  R.  564  (C.  C.  A.  N.  Y.). 


1376  REMINGTON    ON    BANKRUPTCY.      .  §    2257 

§  2256.  Even  Where  No  Partnership  Assets. — And  it  makes  no  dif- 
ference that  there  are  no  partnership  assets. ^^^ 

Euclid  Nat.  Bk.  v.  Union  Trust  Co.,  17  A.  B.  R.  834  (C.  C.  A.  W.  Va.,  affirming 
In  re  Henderson,  16  A.  B.  R.  91) :  "The  contention,  however,  is  earnestly  made 
that  notwithstanding  the  clear  and  unambiguous  provisions  of  the  Act,  and  the 
apparent  justice  thereof,  a  different  rule  should  be  adopted,  and  an  exception 
made  in  cases  where  there  is  no  partnership  estate,  and  that  in  such  a  contin- 
gency the  social  creditors  have  a  right  to  share  along  pari  passu  with  the 
individual  creditors,  in  the  distribution  of  the  latter  estate.  The  question  thus 
raised  is  not  a  new  one,  either  under  this  or  the  former  Bankruptcy  Acts,  and 
has  given  rise  to  much  discussion  in  this  countrj^  and  England,  resulting  in 
many  conflicting  decisions,  and  an  apparently  hopeless  confusion  of  the  subject. 
We  are  disinclined  to  enter  into  a  general  discussion  of  the  various  and  irre- 
concilable opinions  found  in  the  reported  cases.  The  decision  of  Judge  Lowell 
in  In  re  Wilcox  (D.  C),  2  Am.  B.  R.  177,  94  Fed.  84,  contains  an  extended 
review  of  the  entire  subject,  and  especially  a  history  of  the  law,  to  which  we 
take  the  liberty  of  referring.  The  Circuit  Court  of  Appeals  of  two  of  the  cir- 
cuits have  taken  antagonistic  veiws  of  the  present  Bankruptcy  Act.  In  Con- 
rader  v.  Cohen,  9  A.  B.  R.  619,  121  Fed.  801,  a  decision  of  the  Circuit  Court 
of  Appeals  for  the  Third  Circuit,  the  petitioners"  right  to  share  as  partnership 
creditors  in  the  individual  assets  of  the  bankrupt  is  fully  recognized;  and  In  re 
Janes,  13  A.  B.  R.  341,  133  Fed.  912,  a  decision  of  the  Circuit  Court  of  Appeals 
for  the  Second  Circuit,  the  contrary  view  is  taken.  A  careful  consideration  of 
the  entire  subject  and  review  of  the  authorities  convinces  this  court  that,  what- 
ever may  have  been  the  correct  rule  under  former  Bankruptcy  Acts,  the  latter 
case,  a  decision  of  Judge  Lacombe,  of  the  Second  Circuit,  concurred  in  by 
Judges  Wallace  and  Townsend,  presents  the  correct  construction  of  the  law 
under  the  present  Act;  and,  however  much  force  there  may  have  been  in  the 
contention  made  by  petitioners  under  the  former  bankruptcy  acts,  or  what 
maj^  be  the  correct  general  doctrine  applicable  to  the  settlement  and  distribu- 
tion of  partnership  estates,  that  it  was  clearly  within  the  power  of  Congress 
to  adopt  a  method  for  marshaling  such  assets,  to  be  applied  to  the  respective 
classes  of  creditors,  which  it  has  done,  and  in  terms  too  clear  and  comprehen- 
sive to  admit  of  the  necessity  for  interpretation  further  than  to  adopt  and  follow 
its  plain  mandates." 

iNor  does  it  make  any  difference  that  the  partnership  funds  have  been 
previously  exhausted  and  applied  on  the  same  debt  outside  of  bank- 
ruptcy.^^2 

§  2257.  Even  Where  No  Partnership  Assets  and  All  Partners  In- 
solvent.— AMiere  there  are  no  partnership  assets  and  all  the  partners  are 
dead  or  insolvent,  yet  firm  creditors  are  not  entitled  to  share  pari  passu  with 

191.  In  re  Wilcox,  2  A.  B.  R.  117,  94  Fed.  84  (D.  C.  :\Iass.);  In  re  Corcoran, 
12  A.  B.  R.  283  (Ref.  Ohio,  affirmed  by  D.  C);  inferentially.  In  re  Janes,  13 
A.  B.  R.  341,  133  Fed.  912  (C.  C.  A.  N.  Y.) ;  obiter,  In  re  Daniels,  6  A.  B.  R. 
700,  110  Fed.  745  (D.  C.  R.  I.);  contra,  Conrader  v.  Cohen,  9  A.  B.  R.  619,  121 
Fed.  801  (C.  C.  A.  Pa.);  contra.  In  re  Green,  8  A.  B.  R.  553,  116  Fed.  118  (D.  C. 
Iowa). 

192.  In  re  Mills,  2  A.  B.  R.  667,  95  Fed.  269   (D.  C.  Ind.). 


§    2257  DISTRIBUTION  TO  CREDITORS.  1377 

the  individual  creditors  of  the  bankrupt  in  the  distribution  of  his  individ- 
ual estate,  but  are  relegated  to  the  surplus. ^^^ 

The  leading  case  upon  this  point  under  the  present  act,  containing  the  his- 
tory and  development  of  the  entire  subject  is  In  re  Wilcox,  2  A.  B.  R.  117,  94 
Fed.  84  (D.  C.  Mass.,  cited  with  approval  in  In  re  Daniels,  6  A.  B.  R.  700,  110 
Fed.  745,  D.  C.  N.  Y.,  and  in  Buckingham  v.  First  Nat'l  Bk.,  12  A.  B.  R.  469, 
131  Fed.  192,  C.  C.  A.  Tenn.,  and  in  note  to  In  re  Mills,  2  A.  B.  R.  668,  95  Fed. 
269,  but  criticised  in  In  re  Green,  8  A.  B.  R.  555,  116  Fed.  118,  D.  C.  Iowa): 
"To  this  history  of  the  rule  of  distribution  there  should  be  added  some  short 
consideration  of  the  principles  upon  which  the  rule  is  supposed  to  rest,  and 
these  can  neither  be  found  nor  applied  without  difficulty.  In  several  cases, 
and  in  the  writings  of  many  persons  learned  in  the  law,  elaborate  arguments 
have  been  made  to  show  that  the  rule  which  gives  the  separate  creditor  a 
prior  claim  on  the  separate  estate  is  unsound  in  principle,  and  works  unfairly 
in  not  a  few  instances.  Eden,  Bankr.  Law  (2d  ed.),  1^9;  2  Christ.  Bankr.  (2d 
ed.),  35;  Evans'  Letter  to  Sir  S.  Romilly  (1810),  p.  81;  Story,  Partn.,  §  370. 
Indeed,  some  of  the  arguments  used  in  support  of  the  rule  rather  make  against 
it.  Thus  it  has  been  said  that  the  rule  is  based  upon  the  theory  that  the  joint 
creditor  gives  credit  to  the  joint  estate,  and  the  separate  creditor  to  the  sepa- 
rate estate.  The  facts  are  often  quite  otherwise.  A  man  lending  money  to  a 
firm  lends  it  upon  the  credit  of  the  individual  estates  of  the  separate  partners 
as  well  as  upon  that  part  of  their  property  which  is  engaged  in  the  firm  busi- 
ness; and,  on  the  other  hand,  the  separate  creditor  of  a  partner — his  butcher 
or  tailor,  for  example — gives  him  credit  quite  as  much  upon  the  successful  firm 
business  in  which  he  is  supposed  to  be  engaged  as  upon  any  property  in  his 
separate  ownership.  It  has  been  said  that,  inasmuch  as  the  law  has  laid  down 
the  rule  of  distribution  as  above  stated,  creditors  knoW  the  rule,  and  give  credit 
accordingly;  but  this  argument,  if  made  in  support  of  the  reasonableness  of  the 
rule,  is  vicious  by  proceeding  in  a  circle.  It  makes  the  creditor  give  credit  to 
a  fund  because  such  is  the  law,  and  makes  the  fact  that  he  has  given  credit  to 
the  fund  a  reason  for  the  law.  The  rule  has  been  defended  upon  the  ground  that 
it  is,  in  substance,  a  marshaling  of  assets;  but  it  goes  much  further  than  the 
marshaling  of  assets  in  equity,  and  the  confusion  into  which  this  treatment  of 
the  rule — as  merely  a  marshaling  of  assets — brings  a  court  is  shown  by  the 
opinions  in  Lodge  v.  Pritchard  and  other  cases.  The  rule  does  not  carry  out 
the   mercantile   theory   of   the   partnership   relation.      Cory,   Accts.    (2d   ed.)    124. 

"The  historical  origin  of  the  rules  lies  not  improbably  in  an  ancient 
practice  of  distributing  the  joint  estate  under  a  joint  commission  and 
the     separate    estate    under    a    separate    commission,    each    commission     dealing 

193.  In  re  Mills,  2  A.  B.  R.  667,  95  Fed.  269  (D.  C.  Ind.);  In  re  Janes,  13 
A.  B.  R.  341,  133  Fed.  912  (C.  C.  A.  N.  Y.,  reversing  11  A.  B.  R.  792);  Euclid 
Nat'l  Bk.  V.  Union  Trust  Co.,  17  A.  B.  R.  837  (C.  C.  A.  W.  Va.,  affirming  In  re 
Henderson,  16  A.  B.  R.  91,  142  Fed.  568,  quoted  in  preceding  section);  In  re 
Corcoran,  12  A.  B.  R.  283  (Ref.  Ohio,  affirmed  by  D.  C);  compare,  obiter, 
Buckingham  v.  First  Nat'l  Bk.,  12  A.  B.  R.  465  (C.  C.  A.  Tenn.);  contra,  obiter, 
In^  re  Gerson,  5  A.  B.  R.  480  (Ref.  Pa.);  contra  [1867]  In  re  Downing,  Fed. 
Cas.  4,044;  contra,  [1867]  In  re  Jewett,  Fed.  Cas.  7,304;  contra,  [1867]  In  re 
Knight,  Fed.  Cas.  7,880;  contra,  [1867]  In  re  McEwen,  Fed.  Cas.  8,783;  contra, 
[1867]  In  re  Pease,  Fed.  Cas.  10,881;  contra,  [1867]  In  re  Slocum,  Fed.  Cas. 
12,950;  contra,  [1867]  In  re  Litchfield,  5  Fed.  47;  contra,  [1867]  In  re  Blumer, 
12  Fed.  489;  contra,  [1867]  In  re  Lloyd,  22  Fed.  88;  contra,  [1867]  In  re  West, 
39  Fed.  203. 

As  to  discharge  of  firm  debts   in  individual   bankruptcies,   see   post,   §   2794. 

2  Rem  B— 12 


1378  REMixGToisr  ox  baxkruptcy.  §  2257 

with  its  corresponding  creditors.  The  best  theoretic  defence  of  the  rule  is 
probably  this:  The  operation  of  the  law  of  partnership  which  gives  to  any 
separate  partner  or  his  assignee  onlj'^  his  net  share  of  the  partnership  assets — 
a  rule  manifestly  founded  in  justice  and  convenience — usually  insures  to  the 
joint  creditors  a  priority  in  the  application  of  the  joint  estate,  and  therefore 
this  half  of  the  rule  has  seldom  been  questioned.  The  priority  given  to  the 
separate  creditor  in  the  application  of  the  separate  estate  is  a  rough,  but  prac- 
tical, offset  to  the  inequality  caused  by  the  rule  governing  the  application  of  the 
joint  estate.  See  the  dissenting  opinion  of  Judge  Gibson  in  Bell  v.  Newman,  5 
Serg.  &  R.  78.  Entirely  apart  from  statute,  however,  two  things  are  quite 
clear:  First,  that  the  general  rule,  with  some  variations,  is  established  in  the 
courts  of  this  country  and  of  England;  and,  second,  that  these  variations  and 
particularly  the  exception  in  the  absence  of  joint  estate,  have  tended  to  dis- 
credit the  rule,  and  to  confuse  its  operations,  rather  than  to  obviate  its  difficul- 
ties. *  *  *  The  Bankrupt  Act  of  1800  (2  Stat.  19)  contained  no  reference  to 
the  distribution  of  the  assets  of  a  partnership  and  its  component  partners,  and, 
except  Tucker  v.  Oxley,  no  decision  made  under  that  act  has  been  found  which 
bears  upon  the  question.     *    *     * 

"Act  1867,  §  36  (Rev.  St.,  §  5121),  is,  in  all  essentials,  the  same  as  §  14  of  the 
Act  of  1841." 

In  re  Henderson,  16  A.  B.  R.  91,  128  Fed.  527  (D.  C.  W.  Va.,  affirmed  sub 
noni.  Euclid  Xat'l  Bk.  v.  Union  Trust  Co.,  17  A.  B.  R.  837  ( C.  C.  A.  W.  Va.) : 
'■*  *  *  after  long  and  careful  consideration,  that  judgment  is  that  the  ex- 
ception is  not  warranted.  I  reach  this  conclusion  for  these,  among  other, 
reasons.  First.  It  is  admitted  to  be  an  exception  to  a  general  rule,  which 
rule  is  plain,  clear,  apt,  and  in  unambiguous  language  is  written  in  the  law  itself, 
while  the  exception  is  not;  on  the  contrary,  it  must  depend  solely  upon  ju- 
dicial construction,  which'  because  it  in  effect  provides  a  different  method  of 
distribution  from  that  provided  by  the  law  itself,  cannot  be  considered  short  of 
mere  judicial  legislation.  It  is  to  be  recalled  how  easily  the  Congress,  had  it 
designed  such  exception  to  be  made,  could  have  incorporated  it  as  such  in  the 
law  itself.  It  cannot  for  a  moment  be  presumed  that  the  matter  was  overlooked. 
On  the  contrary,  it  is  to  be  remembered  that  this  Bankruptcy  Act  was  as  care- 
fully considered  a  piece  of  legislation  as  any  given  us  for  years  by  that'body. 
The  Senate  first  passed  what  was  known  as  the  'Nelson'  bill  on  the  subject. 
The  House  of  Representatives,  after  long  discussion,  passed,  as  a  substitute, 
the  'Henderson'  bill  carrying  out  substantially  the  provisions  of  the  Torrey 
measure,  which  had  been  for  several  years  prior  discussed  in  legal  associations 
and  journals.  The  matter  was  finally  referred  to  a  conference  committee  com- 
posed of  Senators  Hoar,  Lindsay,  and  Nelson  on  behalf  of  the  Senate,  and  Rep- 
resentatives Henderson,  Ray  (now  judge  of  the  Northern  district  of  New  York) 
and  Terry  on  behalf  of  the  House,  lawyers  as  able  as  the  country  could  afford, 
who,  after  several  months'  deliberation,  reported  a  compromise  which  wa.« 
passed  without  amendment  and  became  the  existing  Act.  The  fact  that  the 
courts  had  established  such  exception  in  the  construction  of  the  Act  of  1867,  but 
with  conflict  of  opinion,  is  one  of  the  strongest  reasons  in  convincing  me  that 
Congress  never  intended  to  recognize  such  exception,  for  knowing  of  the  former 
conflict  of  opinion,  and  of  the  action  of  the  courts  under  the  former  act  in  es- 
tablishing it,  instead  of  recognizing  it,  which  could  have  been  done  in  a  few 
lines,  it  does  not  do  so,  but,  in  plainer,  more  simple,  positive,  and  direct  lan- 
guage, reiterates  the  rule,  without  exception  or  qualification,  that  partnership 
assets  shall  pay  partnership  debts,  individual  assets  individual  debts,  and  only 
surpluses  shall  be  applied,  the  one  to  the  other.     The  argument  made  that  such 


§    2257  DISTRIBUTION    TO    CREDITORS.  1379 

exception  is  in  accord,  generally,  with  the  law  and  practice  in  the  States,  only 
strengthens  my  view  as  to  the  purpose  and  intention  of  the  Congress.  Its  mem- 
bers, coming  from  all  the  States  and  having  full  knowledge  of  such  practice 
and  law,  would  seem  to  have  deliberately  purposed  that  this  uniform  bankrupt 
act,  which  was  to  be  the  supreme  law  of  the  land,  should  not  recognize  such 
exception  but,  in  effect,  exclude  it. 

"Second.  Nor  can  I  read  paragraph  'g'  as  giving  any  excuse  for  the  es- 
tablishment of  such  exception  by  judicial  construction.  Clause  'f  states  the 
precepts  of  the  law;  clause  'g'  relates  to  the  procedure  under  it.  The  law  irt 
T  demands  that  'the  net  proceeds  shall  be  appropriated'  as  directed  by  it, 
while  'g'  provides  simply  that  in  carrying  out  these  precepts,  and  as  an  aid  in 
doing  so,  the  court  may  do  certain  things,  to  wit,  permit  proof  of  claims  of 
partnership  estates  against  individual  estates,  and  vice  versa,  and  marshal 
the  assets  of  such  estates  so  as  to  prevent  preferences  and  secure  equitable  dis- 
tribution of  such  estates.  Note  the  use  in  this  paragraph  of  the  word  'estate' 
instead  of  the  word  'debt'  as  used  elsewhere.  It  is  properly  used  and  was  de- 
signed to  meet  such  cases  as,  for  example,  where  the  partnership  estate  might 
have  a  just  claim  against  one  of  its  individual  members  who  had  not  paid  into 
the  partnership  his  full  share  of  any  part  of  the  capital  which  he  was  legally 
bound  to  do,  while  the  other  members  of  the  partnership  perhaps  had  done  so; 
or,  vice  versa,  where  the  individual  member,  a  bankrupt,  had  paid  into  the  part- 
nership fund  all  of  his  pledged  capital,  while  the  other  members  had  not.  To 
meet  such  and  other  similar  cases  that  might  arise,  I  am  convinced;  was  the 
sole  cause  and  scope  of  this  permissive  clause  in  procedure,  only  mandatory 
in  cases  where  the  circumstances,  in  equity  and  good  conscience,  required  its 
application.  The  necessity  for  this  permissive  provision  in  procedure  is  the 
more  apparent  when  we  read  in  clause  'h'  that  where  all  members  of  a  partner- 
ship are  not  adjudged  bankrupt,  the  partnership  property  is  not  to  be  adminis- 
tered in  bankruptcy  without  consent  of  the  solvent  partners,  a  provision  not  in 
our  former  bankrupt  laws.  In  such  case,  without  this  clause  'g,'  would  the 
bankrupt  court  have  jurisdiction  to  determine  any  such  questions  as  referred 
to  above  between  two  estates  that  might  arise  in  the  adjustment  of  their  re- 
spective rights;  the  one  being  administered  by  the  court,  the  other  by  the  solv- 
ent partners? 

"Finally,  I  do  not  believe  any  just  criticism  can  be  made  of  the  legislative 
body  for  establishing  this  rule  and  refusing  to  incorporate  the  exception  con- 
tended for  to  it,  into  the  law.  Judge  Lowell  In  re  Wilcox,  supra,  has  shown 
how  much  difficulty,  perplexity,  and  conflict  have  arisen  during  more  than  three 
centuries,  in  the  settlement  of  these  joint  and  separate  estates.  Under  such  cir- 
cumstances. Congress  could  well  say  that  it  was  time,  in  this  law  which  was  to 
be  supreme  and  uniform  throughout  the  States,  to  settle  the  vexed  controversy 
by  a  direct  and  positive,  if  arbitrary,  rule.  It  is  true  in  regard  to  all  such  rules 
that,  under  exceptional  circumstances,  they  work  hardships,  but  the  ultimate 
good  they  accomplish  largely  counterbalances  the  evil.  \\'ho  doubts  longer  the 
benefits  of  statutes  of  limitation? 

"The  rule  established  here  has  the  merit  of  simplicity  and  directness.  It 
gives  full  and  complete  repose,  and  I  submit  it  is  as  nearly  equitable  as  any 
such  rules  can  be.  Under  modern  business  conditions,  a  man  can  become 
partner  in  an  unlimited  number  of  partnerships  of  which,  and  of  his  connection 
therewith,  his  neighbor,  who  is  trusting  him  upon  faith  of  his  individual  merit 
and  financial  worth,  can  know  nothing,  and  these  partnerships  with  or  without 
his  knowledge  may  be,  by  bad  or  extravagant  management,  accumulating  debt 
against    him   many    times    over    the   total    value    of    his    estate.      These    partner- 


1380  REMINGTON    ON    BANKRUPTCY.  '  §   2257 

ships  may  be  located  in  dififerent  localities  far  separate.  For  instance,  he  may- 
be a  partner  in  a  'Eureka  Gold  Mining  Company,'  in  Alaska,  an  'Excelsior  Con- 
struction Company'  in  New  York,  a  'Superlative  Fruit  Company'  in  Florida — ■ 
no  one  of  which  in  name  may  disclose  his  connection  therewith.  Why  is  it  not 
reasonable  to  protect,  under  such  conditions,  his  neighbors  at  home  who  have 
trusted  him,  as  against  the  creditors  of  these  distant  partnerships,  who  have 
in  most  cases  credited  such  partnerships  upon  faith  of  the  business  they  were 
doing  and  without  knowledge  of  him  or  of  his  connection  therewith,  until  their 
bankruptcy  occurs?  Is  there  not  a  plain  dividing  line  based  on  reason  and 
sound  equity?  His  neighbors  trusted  him  with  his  personal  property  before 
them;  the  others  trusted  the  partnership  with  its  property  in  view.  Why  should 
not  each  class  resort  to  the  property  that  was  the  basis  of  their  respective 
extensions  of  credit,  without  the  one  having  any  advantage  over  the  other,  and 
what  matters  it  if  the  creditors  of  the  partnership  have  been  so  foolish  as  to  ex- 
tend credit  to  it  when  it  has  no  property,  any  more  than  where  a  man's  neighbor 
has  been  just  as  foolish  in  extending  credit  to  him  personally  when  he  had  none? 
Has  it  ever  been  contended,  in  a  case  where  a  man  has  taken  his  personal 
property  and  invested  it  in  a  partnership  so  that  he  has  nothing,  that  an  ex- 
ception should  be  judiciously  created  which  would  permit  his  individual  cred- 
itors, in  a  bankruptcy  proceedings  against  the  partnership,  to  come  in  and  share 
pari  passu  with  the  partnership  creditors,  as  against  his  interest  therein?  Why 
is  not  one  proposition  as  fair  as  the  other  in  good  conscience,  and  why  does 
not  the  simple  rule  established  by  Congress  settle  the  question  as  fairly  as  it 
can  be  settled?  Whether  it  does  or  not,  of  the  one  thing  I  am  entirely  satisfied; 
and  that  is,  that  the  rule  itself  cannot  justly  be  more  severely  criticised  than  can 
be  the  'exception'  contended  for.  This  exception  certainly  is  none  the  less  arbi- 
trary, and  leads  to  no  less  absurd  results.  This  was  recognized  by  the  courts 
creating  it  in  construing  the  law  of  1867.  For  example,  In  re  Blumer  (D.  C), 
12  Fed.  489,  from  the  Eastern  District  of  Pennsylvania,  it  was  held: 

"  'If,  after  deducting  the  portion  of  costs  chargeable  to  the  partnership  estate, 
there  is  any  balance  of  partnership  assets,  however  small,  the  partnership  cred- 
itor will  not  be  entitled  to  share  pari  passu  with  the  separate  creditors  in  the 
distribution  of  the  separate   estates.' 

"In  other  words,  the  application  of  this  exception  might  well  turn  on  the 
partnership  possession  of,  say,  30  cents.  Again,  In  re  Marwick,  Fed.  Cas.  No. 
9,181,   it   is  held: 

"  'If  there  be  any  joint  fund,  however  small,  such  proof  cannot  be  allowed, 
although  such  fund  may  have  been  created  by  the  separate  creditors  purchas- 
ing some  of  the  partnership  assets,  actually  worthless,  for  the  purpose  only  of 
creating  it;  for  if  there  be  a  joint  fund,  the  court  cannot,  under  the  statute,  look 
behind  the  fact,  to  inquire  how  it  has  been  produced.' 

"In  other  words,  under  the  operation  of  this  exception,  a  contribution  of 
a  few  cents,  no  matter  by  whom,  to  the  partnership  assets,  would  wholly  pre- 
vent its  application." 

Obiter,  In  re  Daniels,  6  A.  B.  R.  700,  110  Fed.  745  (D.  C.  R.  I.):  "Where  a 
member  of  a  copartnership  is  adjudged  a  bankrupt  in  his  individual  capacity, 
creditors  of  the  firm  are  not  entitled  to  receive  dividends  out  of  his  individual 
estate  until  his  individual  creditors  have  been  paid  in  full;  and  this  rule  pre- 
vails notwithstanding  the  fact  that  there  are  no  firm  assets." 

Contra,  Conrader  v.  Cohen,  9  A.  B.  R.  619,  121  Fed.  801  (C.  C.  A.  Penna., 
affirming  In  re  Conrader,  9  A.  B.  R.  85,  118  Fed.  676):  "It  will  be  perceived 
that  a  single  fund  only — derived  from  the  separate  estate  af  the  bankrupt,  Con- 
rader— was  before  the  court  for  distribution;    that  all  the  property  of  the  firm 


§2257  DISTRIBUTION    TO    CREDITORS.  1381 

of  Jenkins  &  Conrader  had  been  sold  upon  execution  in  the  year  1895  and 
passed  to  the  sheriff's  vendee;  that  the  partnership  is  not  in  bankruptcy;  that 
there  are  no  firm  assets  and  that  there  is  no  solvent  partner.  The  insolvency 
of  Jenkins  in  1895,  having  been  shown,  that  condition  will  be  presumed  to  have 
continued  in  the  absence  of  any  evidence  to  the  contrary.  If  his  financial  condi- 
tion changed  it  was  for  the  contesting  individual  to  show  it.  Upon  the  facts 
here  appearing  why  should  not  the  firm  creditors  participate  in  the  fund  be- 
fore the  court?  It  is  the  only  fund  available  to  any  of  the  creditors.  Now  it 
is  well  settled  that  each  partner  is  a  debtor  to  the  creditors  of  the  firm.  In 
equity,  as  at  law,  partnership  debts  are  treated  as  several  as  well  as  joint. 
Upon  principle,  we  think  the  District  Court  was  right  in  admitting  the  part- 
nership creditors  to  participate  pro  rata  with  the  individual  creditors  in  this 
fund. 

"We  find  abundant  authority  to  sustain  the  decision  of  the  court  below.  In 
United  States  v.  Lewis,  13  Nat.  Bank  Reg.  33,  Fed.  Cas.  No.  8429,  held  by  Mr. 
Justice  Strong  and  Circuit  Judge  McKennan,  that  the  rule  that  the  joint 
estate  must  be  applied  to  pay  joint  debts  and  the  separate  estate  to  pay 
the  separate  debts,  is  only  applicable  where  the  joint  estate,  as  well 
as  the  separate  estate  to  pay  the  separate  debts,  is  before  the  court  for  distri- 
bution; and  in  the  same  case  upon  appeal,  92  U.  S.  618,  623,  the  Supreme 
Court,  speaking  by  Mr.  Justice  Swayne,  said:  'A  court  of  equity  will  not  en- 
tertain the  question  of  marshaling  assets  unless  both  funds  are  within  the  juris- 
diction and  control  of  the  court.'  In  the  case  in  hand  two  funds  do  not  exist. 
The  established  English  doctrine  is  thus  stated  in  Lind.  Partners.  (3d  Amer. 
Ed.),  p.  731;  (6th  Ed.),  §  749:  'If  in  the  case  of  a  bankrupt  firm  there  is  no 
joint  estate,  the  joint  creditors  are  entitled  to  rank  as  separate  creditors  against 
the  separate  estates  of  the  individual  partners.  So,  if  one  partner  only  is  bank- 
rupt, the  creditors  of  the  firm  are  entitled  to  rank  as  separate  creditors  against 
the  separate  estate  of  the  bankrupt,  if  there  is  no  joint  estate  and  if  there  is 
no  solvent  ostensible  partner,  at'  all  events  none  in  this  country.'  The  like 
doctrine  is  set  forth  in  Story  on  Partnership,  §  380,  that  where  there  is  no 
partnership  assets  and  no  solvent  partner,  the  firm  creditors  share  in  the  sep- 
arable estate  of  the  bankrupt  partner  pari  passu  with  the  individual  creditors 
was  the  recognized  rule  under  the  Bankrupt  Act  of  1867." 

Also,  contra.  In  re  Green,  8  A.  B.  R.  553,  116  Fed.  118  (D.  C.  Iowa):  "In  sup- 
port of  the  ruling  made,  the  referee  cites  the  case  of  In  re  Wilcox,  2  Am. 
B.  R.  117,  94  Fed.  84,  wherein  will  be  found  a  learned  discussion  of  the  general 
proposition  by  Judge  Lowell,  who  reaches  the  conclusion  that  the  partner- 
ship creditors  cannot  be  allowed  to  share  with  the  individual  creditors  in  the 
assets  of  one  member  of  the  firm,  even  though  there  are  no  firm  assets  and  no 
proceedings  against  the  firm.  If  I  correctly  understand  the  ruling  in  this  case, 
it  is,  in  effect,  that  §  5  of  the  Bankrupt  Act  is  not  to  be  limited  to  cas^s 
wherein  the  proceedings  are  against  the  firm  as  well  as  the  individual  members, 
but  that  it  is  to  be  construed  to  establish  the  broad  principle  that  the  individual 
creditors  of  the  bankrupt  are  to  be  paid  in  full  out  of  his  assets  before  the 
claims  owing  by  him  as  a  member  of  the  firm  can  be  allowed  to  share  in  his 
assets,  even  though  the  firm  had  long  since  been  dissolved,  and  there  are  no 
firm  assets  to  be  applied  to  the  payment  of  the  firm  debts.  This  question  was 
involved  in  the  case  of  In  re  Keller  (D.  C),  6  Am.  B.  R..  337,  109  Fed.  118, 
wherein  this  court  held  that  as  there  had  been  a  valid  transfer  of  the  partner- 
ship property  to  one  of  the  partners,  Almon  D.  Keller,  who  subsequently  went 
into  bankruptcy  as  an  individual,  and  transferred  to  his  trustee  all  of  his  prop- 
erty, including  that  which  had  formerly  belonged  to  the  partnership,  the  firm 


1382  REMINGTON    ON    BANKRUPTCY.  §   2257 

creditors  would  be  permitted  to  share  equally  with  the  individual  creditors  in 
the  assets  of  the  estate.  This  conclusion  was  based  largely  upon  the  fact 
that  the  Supreme  Court  in  Fitzpatrick  z'.  Flannagan,  106  U.  S.  648,  1  Sup.  Ct. 
369,  27  L.  Ed.  211,  Ifad  declared  the  equitable  rule  to  be  as  follows: 

"  'The  legal  right  of  a  partnership  creditor  to  subject  the  partnership  prop- 
erty to  the  payment  of  his  debts  consists  simply  in  the  right  to  reduce  his 
claim  to  judgment  and  to  sell  the  goods  of  his  debtor  on  execution.  His  right 
to  appropriate  the  partnership  property  specifically  to  the  payment  of  his 
debt  in  equity,  in  preference  to  creditors  of  an  individual  partner,  is  derived 
through  the  other  partner,  whose  original  right  it  is  to  have  the  partnership 
assets  applied  to  the  payment  of  partnership  obligations.  And  this  equity  of 
the  creditor  subsists  so  long  as  that  of  the  partner,  through  which  it  is  derived, 
remains;  that  is,  so  long  as  the  partner  himself  "retains  an  interest  in  the  firm 
assets,  as  a  partner,  a  court  of  equity  will  allow  the  creditors  of  the  firm  to 
avail  themselves  of  his  equity,  and  enforce  through  it  the  application  of  those 
assets  primarily  to  payment  of  the  debts  due  them,  whenever  the  property 
comes  under  its  administration."  Such  was  the  language  of  this  court  in  Case 
V.  Beauregard,  99  U.  S.  119,  25  L.  Ed.  370,  in  which  Mr.  Justice  Strong,  deliver- 
ing the  opinion,  continued  as  follows:  "It  is  indispensable,  however,  in  such 
relief,  when  the  creditors  are,  as  in  the  present  case,  simply  contract  creditors, 
that  the  partnership  property  should  be  within  the  control  of  the  court,  and 
in  the  course  of  administration,  brought  there  by  the  bankruptcy  of  the  firm, 
or  by  an  assignment,  or  by  the  creation  of  a  trust  in  some  mode.  This  is  be- 
cause neither  the  partners  nor  the  joint  creditors  have  any  specific  lien,  nor  is 
there  any  trust  that  can  be  enforced,  until  the  property  has  passed  in  custodia 
legis."  Hence  it  follows  that  "if,  before  the  interposition  of  the  court  is  asked, 
the  property  has  ceased  to  belong  to  the  partnership,  if  by  a  bona  fide  trans- 
fer it  has  become  the  several  property  of  one  partner  or  of  a  third  person, 
the  equities  of  the  partners  are  extinguished,  and  consequently  the  derivative 
equities  of  the  creditors  are  at  an  end."  ' 

"In  view  of  this  authoritative  declaration  that  the  equities  of  the  partnership 
creditors  are  derived  from  the  equity  of  the  partners,  and  that  it  is  within  the 
power  of  the  partners  to  put  an  end  to  the  equities  of  the  firm  creditors,  by  a 
bona  fide  transfer  of  the  firm  assets  to  one  partner  or  to  a  third  party,  wherein 
the  equity  in  the  ruling  that,  in  cases  wherein  the  equity  of  the  firm  creditors 
has  been  terminated,  not  through  their  act  nor  with  their  consent,  but  by  the 
act  of  the  partners  in  selling  tlie  firm  assets  to  one  of  their  number  or  to  a 
third  party,  and  subsequently  members  of  the  firm  are  put  into  bankruptcy 
as  individuals,  the  individual  creditors  are  entitled  to  exclude  the  firm  creditors 
from  sharing  in  the  assets  until  the  individual  debts  are  paid  in  full?  In  such 
cases  there  is  no  other  fund  to  which  the  firm  creditors  can  resort  for  payment, 
and  the  practical  result  of  the  rule  laid  down  in  the  Wilcox  case  is  that,  in  all 
cases  wherein  the  equity  of  the  firm  creditors  have  been  destroyed  by  the 
action  of  the  partners,  in  converting  the  firm  property  into  individual  assets  by 
a  sale  thereof  to  one  of  the  parties,  the  individual  creditors  are  entitled  to  be 
preferred,  and  are  entitled  to  exclude  the  firm  creditors  from  sharing  in  these 
assets,  even  though  they  were  originally  the  property  of  the  firm.  A  very 
large  proportion  of  the  cases  brought  in  bankruptcy  under  the  provisions 
of  the  present  act  are  cases  wherein  the  bankrupts  have  been  members  of  one 
or  more  partnerships  which  have  been  dissolved  long  since,  and  in  which  the 
only  assets  are  those  belonging  to  the  individual  bankrupt;  and,  if  it  be  the 
rule  that  the  individual  creditor  is  always  entitled  to  be  first  paid  from  the  in- 
dividual assets,  it  follows  that  in  all  these  cases  the  debts  due  the  firm  creditors 


§   2258  DISTRIBUTION    TO    CREDITORS.  1383 

are   discharged,   yet   these    creditors   are   barred    from    ajiy    share   in    the   assets 
of  the  bankrupt. 

"The  variant  views  set  forth  in  the  numerous  decisions  cited  in  the  Wilcox  case 
serve  to  show  that  it  is  practically  impossible  to  formulate  S  single  general  rule 
that  will  meet  the  equities  of  every  case,  but  the  adoption  of  the  rule  that  in  every 
instance  wherein  there  are  firm  and  individual  creditors,  but  the  assets  are  in- 
dividual only,  the  latter  class  of  creditors  are  to  be  paid  in  full  to  the  exclusion 
of  the  firm  creditors,  will  certainly  work  injustice  in  so  many  cases  that  I 
should  hesitate  long  before  accepting  it  in  the  absence  of  a  controlling  decision 
by  an  appellate  court.  The  Supreme  dourt  having  decided  that  the  firm  assets 
may  be  converted  into  individual  assets  by  the  action  of  the  partners,  I  can- 
not see  the  equity  in  the  view  that  holds,  in  effect,  that  it  is  within  the  power 
of  the  partners  to  terminate  the  equity  of  the  firm  creditors  in  the  firm  assets, 
and  that  the  same  act  which  terminates  the  equity  of  the  firm  creditors  creates 
a  preference  in  favor  of  the  individual  creditors,  enabling  them  to  secure  pay- 
ment in  full  of  their  claims  out  of  funds  which  in  many  cases  are  wholly  or 
largely  the  proceeds  of  the  property  which  was  originally  firm  assets." 

§  2258.  Joint  and  Several  Obligations  for  Partnership  Debt, 
Share  in  Individual  Estate. — Creditors  holding  joint  and  several  obliga- 
tions of  the  partners  for  a  partnership  debt  may  share  in  the  individual 
estates  of  the  several  partners  on  an  equality  with  exclnsively  individual 
creditors. i^'* 

Buckingham  Trustee  v.  First  Nat'l  Bk.,  12  A.  B.  R.  465,  131  Fed.  192  (C.  C. 
A.  Tenn.):  "The  next  question  is  whether  the  claimants  *  *  *  as  individual 
creditors  of  Estes,  should  be  paid  out  of  his  individual  estate,  in  preference  to 
the  claims  of  the  firm  creditors.  Doubtless  the  notes  executed  by  the  firm  and 
endorsed  by  Estes,  were  firm  debts,  as  well  as  individual  debts  of  Estes.  But 
the  holders  had  a  right,  if  they  preferred,  to  present  them  as  claims  against 
Estes  individually.  *  *  *  Gartenlaub  was  advised  of  the  fact  that  Estes 
individually  owned  a  large  amount  of  real  estate  and  for  that  reason  required 
his  individual  endorsement." 

Inferentially,  analogously,  In  re  McCallum  &  McCallum,  11  A.  B.  R.  448, 
127  Fed.  768  (D.  C.  Pa.):  "The  facts  are  these:  The  bankrupt  firm  made  a 
promissory  note  payable  to  the  order  of  William  H.  McCallum,  one  of  the 
partners,  by  whom  it  was  duly  indorsed.  The  claim  against  the  firm,  based 
upon  their  contract  as  makers,  was  proved  by  the  creditor,  but  the  claim 
against  William's  individual  estate,  based  upon  the  separate  and  distinct  con- 
tract of  indorsement,  has  not  been  proved.  The  year  has  gone  by,  and  to 
permit  the  proof  of  claim  that  is  now  upon  file  with  the  referee  to  be  so  amended 
as  to  include  the  second  contract  would  not,  in  my  opinion,  be  the  allowance  of 
an  amendment  at  all,  but  the  allowance  of  a  wholly  new  claim,  in  the  face  of 
the  statutory  prohibition.  The  contract  entered  into  by  the  maker  of 
a  promissory  note,  and  the  contract  entered  into  by  the  indorser  are  entirely 
distinct  and  separate  undertakings.  It  does  not  affect  this  conclusion  that  the 
contract  of  indorsement  is  made  by  a  member  of  the  firm  that  has  previously 

194.  In  re  McCoy,  17  A.  B.  R.  760,  150  Fed.  106  (C.  C.  A.  Ind.) ;  [1867] 
Emery  v.  Canal  Nat'l  Bk.,  Fed.  Cas.  4,446;  [1867]  In  re  Bradley,  Fed.  Cas. 
1,772;  [1867]  In  re  Farnum,  Fed.  Cas.  4,674;  [1867]  Mead  v.  Nat'l  Bk.,  6 
Blatchf.  180,  Fed.   Cas.  9,366;    [1867]    In  re  Bigelow,  3   Ben.   146  Fed.   Cas.   1,397. 


1384  re;mington  on  bankruptcy.  §  2258 

made  the  other  contract.  The  same  man  has  made  two  contracts  in  different 
characters,  one  as  a  partner  and  the  other  as  an  individual." 

[1867]  In  re  Thomas,  8  Biss.  139,  Fed.  Cas.  No.  13,886:  "There  is  a  class  of 
cases  in  which  it  has  been  held  that  where  a  creditor  holds  notes  signed  by 
a  firm,  and  signed  or  indorsed  also  by  an  individual  member  of  the  firm,  he 
may  prove  against  both  estates,  and  receive  dividends  from  both.  In  re 
Farnum,  Fed.  Cas.  No.  4,674;  Mead  v.  National  Bank  of  Fayetteville,  Fed. 
Cas.  No.  9,366;  Emery  v.  Canal  National  Bank,  Fed.  Cas.  No.  4,446.  These 
cases  establish  a  rule  opposed  to  the  old  rule  on  the  subject  in  England,  and  the 
principle  thus  settled  seems  to  reach  out»to  the  question  involved  in  the  case  at 
bar.  The  scope  of  these  decisions  is,  that  when  an  individual  member  of  a  firm, 
as  such,  becomes  surety  upon  or  indorses  an  obligation  of  the  firm,  he  thereby 
gives  what  is  in  the  nature  of  security  upon  his  separate  estate  to  the  firm 
creditors,  and,  by  reason  of  the  individual  liability  superadded  to  the  joint 
obligation,  he  places  the  firm  creditor  in  a  position  where  he  can  go  against 
the  individual  as  well  as  the  joint  estate.  Thus  it  results,  that  without  the  in- 
dorsement or  individual  signature  of  one  of  the  firm,  the  firm  creditor  would 
have  no  right  to  claim  against  the  individual  assets  until  individual  creditors  had 
been  first  satisfied.  But  holding  the  individual  indorsement  or  signature,  the 
firm  creditor  may,  in  the  first  instance,  prove  against  the  separate  as  well  as 
the  joint  estate.  Now,  such  separate  liability  would  seem  to  be,  at  least,  in  the 
nature  of  security  though  differing  radically,  it  is  true,  in  character  and  form 
from  that  of  a  mortgage,  and  yet  double  proof,  by  the  firm  creditor  in  such 
case,  may  be  made  without  any  abatement  of  advantage  which  his  diligence 
has  secured." 

Contra,  In  re  Mosier,  7  A.  B.  R.  268  (D.  C.  Vt.) :  "The  joint  and  several 
notes  given  by  the  partners  for  partnership  liabilities  are  none  the  less  partner- 
ship debts  because  the  partners  are  also  individually  liable.  By  the  terms  of 
the  same  section  of  the  Bankrupt  Act,  no  part  of  the  separate  property  is  to 
go  for  partnership  debts  till  the  separate  debts  are  fully  paid.  Therefore  there 
can  be  no  individual  assets  of  Mosier  in  which  these  partnership  creditors 
can  be  entitled  to  participate. 

"Participation  of  joint  and  several  partnership  creditors  in  individual  assets, 
before  individual   creditors  are  paid  in  full,  denied." 

Apparently  contra,  Bank  v.  Stevens  Estate,  6  A.  B.  R.  164,  107  Fed.  245  (D. 
C.  Vt.) :  "As  to  the  first  note  the  claim  is  sought  to  be  made  individual  through 
the  separate  indorsement  of  C.  P.  Stevens.  But  it  was  primarily  a  partnership 
note,  and,  so  far  as  is  in  any  wise  made  to  appear,  a  partnership  debt;  and,  if 
Stevens'  liability  as  indorser  had  been  fixed,  it  would  still  be  apparently  a  part- 
nership debt.  There  is  no  suggestion  in  the  claim  that  his  liability  in  this 
respect  in  any  way  became  fixed,  and  a  fortiori  the  debt  remained  a  partnership 
debt  without  becoming  an  individual   debt." 

A  contrary  doctrine  to  that  enunciated  at  the  beginning  of  this  section 
would  destroy  the  advantage  to  which  the  creditor  is  entitled  by  virtue  of 
the  individual  signatures. 

But  a  modification  of  the  doctrine  has  been  made  in  one  case  where  it 
has  been  held  that  such  individual  proof  should  be  only  for  the  balance 
left  after  deduction  of  the  dividends  received  from  the  partnership  as- 
sets.^^^  But  such  modification  seems  unwarranted.  The  least  that  can 
be  said  of  the  individual  obligations  is  that  they  are  those  of  sureties.     If 

195.    In  re  McCoy,  17  A.  B.  R.  760,  150  Fed.  106  (C.  C.  A.  Ind.). 


§   2262  DISTRIBUTION    TO    CREDITORS.  1385 

tliey  are  those  of  sureties  then,  assuredly,  the  creditor  may  prove  for  the 
full  amount  against  both  the  principal  and  surety's  respective  estates,  so 
long  as  the  aggregate  dividends  do  not  exceed  the  amount  of  the  claim, 
applying  the  dividends  first  from  the  principal's  estate.  Exhausting  the 
principal's  dividends  first,  however,  is  different  from  making  proof  only 
for   the  balance   after   such   application. ^^^ 

§  2259.  Partner's  Right  of  Contribution  for  Paying  Firm  Debts, 
Provable  in  Other  Partner's  Bankruptcy. — The  right  of  one  partner 
to  contribution  from  the  other  partner  for  paying  firm  debts  is  a  provable 
claim  against  the  individual  partner  in  individual  bankruptcy. ^^'^ 

§  2260.  On  Marshaling  Partnership  and  Individual  Estates,  Sol- 
vent Partner's  Excess  Contribution  Provable  against  Individual 
Estate. — Thus,  also,  in  the  marshaling  of  partnership  and  individual 
estates  in  bankruptcy,  a  solvent  partner's  excess  of  contribution  to  pay 
firm  debts  constitutes  a  provable  debt  against  the  individual  estates  of  the 
other  partners,  and  may  share  pari  passu  with  individual  debts. ^^^ 

§  2261.  Likewise,  Partner's  Right  of  Indemnity  (Where  Surety) 
for  Paying  Copartner's  Individual  Debt  Provable  against  Copart- 
ner's Individual  Estate,  Entitling  to  Subrogation  to  Creditor's 
Claim. — Thus,  where  one  partner  has  paid  the  individual  debt  of  another 
partner  for  whom  he  was  surety,  his  claim  for  indemnity  from  his  princi- 
pal is  a  provable  claim  against  the  copartner's  individual  estate,  and  en- 
titles his  trustee  in  bankruptcy  to  be  subrogated  to  the  original  creditor's 
claim,  and  to  prove  it  against  the  other  partner's  individual  estate. ^^^ 

[1867]  In  re  May,  Fed.  Cas.  9,327;  "Partners  and  their  estates  come  under 
the  rule,  for  the  reason  that,  in  bankruptcy,  estates  are  settled  separately;  the 
joint  creditors  are  to  have  the  joint  estates,  and  vice  versa,  and  although  there 
is  no  contribution  between  joint  and  separate  estates,  unless  there  should  be 
a  surplus  of  one  over  the  other,  yet  when  the  property  of  one  is  pledged  for 
the  debt  of  the  other,  a  court  of  equity  will  apply  the  right  of  subrogation  pre- 
cisely as  it  would  if  the  contracting  parties  were  not  partners,  and  thus  do 
justice  to  the  different  creditors." 

§  2262.  But  Claim  of  Retiring  Partner  for  Unpaid  Purchase  Price 
of  Partnership  Share,  Not  to  Share  with  Partnership  Creditors  in 
Surplus  of  Remaining  Partner's  Individual  Estate. — But  the  claim 

196.  See  ante,  §  758:  "No  deduction  for  oroperty  of  principal  held  by  cred- 
itor,  where   surety   bankrupt." 

197.  In  re  Carmichael,  2  A.  B.  R.  815,  96  Fed.  594  (D.  C.  Iowa);  In  re  Ste- 
vens, 5  A.  B.  R.  9,  104  Fed.  323  (D.  C.  Vt).  Compare,  In  re  Dillon,  4  A.  B.  R. 
63,  100   Fed.  627   (D.   C.   Mass.). 

198.  In  re  Stevens,  5  A.  B.  R.  9,  105  Fed.  323   (D.  C.  Vt.). 

199.  In  re  Mason  &  Son,  2  A.  B.  R.  60  (Ref.  R.  I.);  [1867]  In  re  Foote, 
Fed.   Cas.  4,906. 


1386  REMINGTON    ON    BANKRUPTCY.  §    2267 

of  the  retiring  partner  for  the  purchase  price  of  the  latter's  share  is  not 
to  participate  pari  passu  with  partnership  creditors  in  the  individual  estate 
of  the  remaining  partner. 200  This  is  so,  for  the  reason  that  the  sale  itself, 
being  simply  a  sale  of  an  undivided  interest  in  the  surplus,  contemplates 
satisfaction,  first,  of  all  firm  obligations  in  the  ascertainment  of  such  sur- 
plus. 

§  2263.  Obligation  Signed  in  Individual  Name,.  Prima  Facie  Indi- 
vidual Debt. — An  obligation  signed  in  an  individual  name  is  prima  facie 
an  individual  obligation;-"^  but  may  be  shown,  by  parol  evidence,  to  be 
a  firm  debt.-"- 

§  2264.  Firm  Debt  Assumed  by  Partner  Provable  against  Part- 
ner's Individual  Estate.— A  firm  debt  may  be  assumed  by  one  of  the 
partners  and  become  a  provable  debt  against  the  individual  estate  of  the 
partner.203 

subdivision  "c." 

"Pre;fere;ncss"  and  "Legae  Liens"  on  Individual  Property  in  Part- 
nership Bankruptcies  and  upon  Partnership  Property  in  In- 
dividual Bankruptcies.  . 

§  2265.  "Preferences"  and  "Legal  Liens"  on  Individual  Property 
Not  Nullified  by  Firm  Bankruptcy;  and  Vice  Versa. — Liens  upon 
and  transfers  of  the  individual  property  of  a  member  of  a  partnership,  the 
partnership  but  not  the  individual  member  being  in  bankruptcy ;  and,  like- 
wise, liens  upon  and  transfers  of  partnership  property  in  individual  bank- 
ruptcies, are  not  affected  by  the  provisions  of  the  bankruptcy  act  relative 
to  preferences  and  legal  liens  obtained  within  four  months  of  bankruptcy. 
The  firm  and  its  individual  members  preserve  their  separate  identities. 

2266.  Thus,  "Legal  Liens"  within  Four  Months,  on  Individual 
Property,  Not  Affected  by  Partnership  Bankruptcy.— Thus,  liens  for 
individual  debts  on  the  individual  property  of  a  partner  are  not  voidable 
as  preferences,  nor  nullified  as  "legal  liens,"  by  the  bankruptcy  of  the 
partnership. 2"^ 

§  2267.  Nor  Are  Similar  Liens  on  Partnership  Property  Affected 
by  Individual  Bankruptcy. — Nor  are  partnership  liens  on  partnership 

200.  In  re  Denning,  8  A.  B.  R.  133,  114  Fed.  219  (D.  C.  Mass.);  In  re  Gerson, 
5  A.  B.  R.  480  (Ref.  Pa.). 

201.  In  re  Weisenberg   &  Co.,   12  A.   B.   R.  417   (D.   C.   Ky.). 

202.  See  ante,  §  2240. 

203.  In  re  Lehigh  Lumber  Co.,  4  A.  B.  R.  221,  101  Fed.  216   (D.  C.  Pa.). 

204.  Impliedly,  In  re  Lehigh  Lumber  Co.,  4  A.  B.  R.  221,  101  Fed.  216  (D. 
C.   Pa.). 


§    2269  DISTRIBUTION  TO  CREDITORS.  1387 

property  voidable  as  preferences  nor  nullified  as  legal  liens  by  the  individ- 
ual bankruptcy  of  one  partner. ^os 

§  2268.  Nor  Are  "Transfers"  by  Partnership  Voidable  as  "Prefer- 
ences," by  Bankruptcy  of  Partner. — And  bankruptcy  proceedings 
^1  gainst  one  partner  do  not  affect  the  validity  of  a  transfer  made  by  the 
partnership. -'^•'^  Thus,  preferences  given  by  a  partnership  on  partnership 
property  that  is  being  administered  in  the  individual  bankruptcy  proceed- 
ings of  one  of  the  partners,  are  not  affected. ^*^" 

SUBDIVISION    "d." 

Transfer  of  Partnership  Interest  to  Copartner  or  Third  Person. 

§  2269.  First,  Where  One  Partner  in  Insolvent  Firm  Sells  Out  to 
Other  Who  Thereafter  Becomes  Bankrupt. — It  has  been  held  that 
the  partnership  creditor's  lien  upon,  or  rights  in,  partnership  assets  follow 
the  assets  into  the  hands  of  a  remaining  partner  who  has  bought  out  his 
copartners,  and  that  such  creditors  are  entitled  to  priority  of  payment 
therefrom  over  individual  creditors  of  the  remaining  partner,  upon  his 
bankruptcy. -'^^ 

This  is  presumably  on  the  doctrine  that  the  transfer  by  one  partner  of 
his  partnership  interest  to  another  is  not  the  transfer  of  title  to  any  spe- 
cific assets  but  a  transfer  of  an  undivided  interest  in  any  surplus  left  after 
satisfaction  of  firm  obligations ;  and  that  thus,  although  the  rights  of  cred- 
itors must  be  worked  out  through  the  partners  and  rise  no  higher  than 
those  of  the  partners,  yet,  in  effect,  precisely  by  virtue  of  the  sale  itself 
a  lien  exists  in  favor  of  firm  creditors.  When  partnership  property  is 
thus  converted  into  individual  property  by  the  sale  to  one  partner  of  all 
the  other  partners'  interest,  it  is  not  a  sale  of  specific  articles  but  a  sale 
of  a  share  in  the  surplus  after  all  firm  debts  are  paid.  In  effect,  a  lien  in 
favor  of  firm  creditors  is  thereby  created  or  maintained,  and  is  so  created 
precisely  through  the  acts  of  the  partners  themselves. 

In  re  Hosier,  7  A.  B.  R.  268,  112  Fed.  138  (D.  C.  Vt.)  :  "Partners  in  an  in- 
solvent partnership  have  no  interests  of  their  own  in  the  partnership  prop- 
erty, but  the  whole  is  subject  to  the  lien  of  the  partnership  creditors." 

In  re  Gillette,  5  A.  B.  R.  123,  104  Fed.  769  (D.  C.  N.  Y.) :  "The  transfer  of 
the  partnership  interest  by  Prentice  to  Gillette  does  not  deprive  creditors  of 
the  right  to  hold  partnership  assets  for  payment  of  their  claims;    and  creditors 

205.  McNair  7-.  Mclntyre,  7  A.  B.  R.  638,  113  Fed.  113   (C.   C.  A.  N.  Car.). 

206.  McNair  v.  Mclntyre,  7  A.  B.  R.  638,  113  Fed.  113  (C.  C.  A.  N.  C)- 

207.  As  to  whether  a  preference  by  a  firm  is  voidable  in  the  individual  bank- 
ruptcy of  one  partner  to  whom  the  others  have  subsequently  sold  out,  see 
post,   §   2265,   et   seq. 

208.  But  compare,  contra,  obiter,  In  re  Keller,  6  A.  B.  R.  337,  109  Fed.  118 
(D.  C.  Iowa).  And  also,  compare,  contra  Harriskamp  v.  Wagon  Co.,  121  U. 
S.  310. 


1388  REMINGTON    ON    BANKRUPTCY.  §    2270 

having  claims  against  an  insolvent  debtor  who  is  a  member  of  a  copartnership 
cannot,  where  the  debtor  has  been  adjudicated  bankrupt,  receive  dividends 
from  partnership  assets  until  the  copartnership  creditors  have  been  paid  in  full." 

Compare,  analogously,  obiter,  Deaf  and  Dumb  Institute  v.  Crockett,  17  A. 
B.  R.  241  (X.  Y.  Sup.  Ct.  App.  Div.) :  "It  is  well  settled  that  the  interest  of 
an  individual  member  of  a  firm  may  be  assigned  by  him,  but  the  assignee  only 
acquires  the  proportionate  share  of  the  member  in  the  surplus  remaining  after 
the  payment  of  the  copartnership  debts  and  the  adjustment  of  the  equities 
between  the  members  of  the  firm,  and  does  not  acquire  any  title  to  the  corpus 
of  the  firm  assets,  which  remain  a  primary  fund  for  the  payment  of  firm  debts 
with  the  right  in  the  assignor  as  well  as  in  the  creditors  to  compel  their  appro- 
priation thereto." 

And  compare,  contra,  Fitzpatrick  v.  Flannagan,  106  U.  S.  648:  "The  legal 
right  of  a  partnership  creditor  to  subject  the  partnership  property  to  the  pay- 
ment of  his  debt  consists  simply  in  the  right  to  reduce  his  claim  to  judgment, 
and  to  sell  the  goods  of  his  debtors  on  execution.  His  right  to  appropriate  the 
partnership  property  specificallj'-  to  the  payment  of  his  debt,  in  equity,  in  pref- 
erence to  creditors  of  an  individual  partner,  is  derived  through  the  other 
partner,  whose  original  right  it  is  to  have  the  partnership  assets  applied  to 
the  payment  of  partnership  obligations.  And  this  equity  of  the  creditor  sub- 
sists so  long  as  that  of  the  partner  through  which  it  is  derived  remains;  that 
is,  so  long  as  the  partner  himself  'retains  an  interest  in  the  firm  assets,  as  a 
partner,  a  court  of  equity  will  allow  the  creditors  of  the  firm  to  avail  them- 
selves of  his  equity,  and  enforce  through  it  the  application  of  those  assets 
primarily  to  payment  of  the  debts  due  them,  whenever  the  property  comes 
under  its  administration.'  Such  was  the  language  of  this  court  in  Case  v. 
Beauregard,  99  U.  S.  119,  25  L.  Ed.  370,  in  which  Mr.  Justice  Strong,  delivering 
the  opinion,  continued  as  follows:  'It  is  indispensable,  however,  to  such  relief, 
when  the  creditors  are,  as  in  the  present  case,  simple  contract  creditors,  that 
the  partnership  property  should  be  within  the  control  of  the  court,  and  in  the 
course  of  administration,  brought  there  by  the  bankruptcy  of  the  firm,  or  by 
an  assignment,  or  by  the  creation  of  a  trust  in  some  mode.  This  is  because 
neither  the  partners  nor  the  joint  creditors  have  any  specific  lien,  nor  is  there 
any  trust  that  can  be  enforced  until  the  property  has  passed  in  custodiam 
legis.'  Hence  it  follows  that  'if,  before  the  interposition  of  the  court  is  asked, 
the  property  has  ceased  to  belong  to  the  partnership,  if  by  a  bona  fide  transfer 
it  has  become  the  several  property  of  one  partner  or  of  a  third  person,  the 
equities  of  the  partners  are  extinguished,  and  consequently  the  derivative 
equities  of  the  creditors  are  at  an  end.'  " 

§  2270.  But  if  Partnership  Creditors  Assent  to  Assumption  They 
Become  Individual  Creditors. — But,  of  course,  if  the  partnership  cred- 
itors assent  to  the  assumption  of  the  partnership  debts  by  the  remaining 
partner,  they  become  thereby  his  individual  creditors  and  lose  their  lien.^o^ 

In  re  Denning,  8  A.  B.  R.  133,  114  Fed.  219  (D.  C.  Mass.):  "It  seems  that 
a  former  joint  creditor,  who  has  elected  to  become  a  separate  creditor  of  the 
bankrupt,  assents  to  the  conversion  of  the  joint  into  separate  assets,  and  is 
permitted  to  come  upon  the  converted  estate   as   a  separate   creditor." 

209.    [1687]  In  re  Johnson,  Fed.  Cas.  7,369. 


§    2271  DISTRIBUTION  TO  CREDITORS.  1389 

And  the  assent  is  sufficient  if  not  made  until  bankruptcy  has  inter- 
vened. 210 

In  re  Keller,  6  A.  B.  R.  336,  109  Fed.  118  (D.  C.  Iowa):  "Counsel  for  the 
claimant  take  the  position  that  the  payment  of  the  $171.70  on  October  2,  1900, 
was  made  by  the  firm  of  Keller  &  Stake;  that  the  partnership  has  not  been 
adjudged  a  bankrupt;  and  that,  as  the  court  in  bankruptcy  has  before  it  only 
the  individual  estate  of  Almon  D.  Keller,  it  cannot  deal  with  payments  made  by 
the  pre-existing  firm  of  Keller  &  Stake,  nor  can  it  undertake  to  marshal  the 
firm  and  individual  assets  in  this  proceeding.  The  fact,  however,  that  the 
partnership  has  not  been  adjudged  a  bankrupt,  prevents  the  question  of  the 
marshaling  of  assets  from  arising  in  this  case.  The  claimant,  as  shown  by  the 
proof  of  debt  filed  by  it,  assumes  the  position  of  a  creditor  of  Almon  D.  Keller. 
There  is  no  case  before  the  court  in  which  it  can  undertake  to  separate  the 
debts  and  property  of  a  firm  from  th,at  of  the  individual  partners,  as  is  pro- 
vided for  in  §  5  of  the  Bankrupt  Act.  When  J.  P.  Stake  sold  his  interest  in 
the  partnership  to  Keller,  the  property  became  the  individual  property  of  the 
latter,  and  it  passed,  as  such,  to  his  trustee  in  the  bankruptcy  proceedings. 
Neither  Stake  nor  the  firm  creditors  have  initiated  any  proceedings  for  the 
enforcement  of  any  supposed  equities  or  rights  in  the  property  formerly  be- 
longing to  the  firm,  and  therefore  the  referee  rightly  ruled  that  the  claims 
filed  by  the  company  could  only  be  viewed  as  a  claim  against  Keller.  *  *  * 
In  the  case  now  under  consideration  there  was  a  valid  transfer  of  the  part- 
nership property  to  Almon  D.  Keller.  This  transfer  has  not -been  questioned 
by  any  one.  When  Keller  went  into  Bankruptcy,  he  did  so  as  an  individual, 
and  he  transferred  to  the  trustee  all  his  property,  including  that  which  had  for- 
merly belonged  to  the  firm  of  Keller  &  Stake.  Under  these  circumstances, 
the  court  in  bankruptcy  cannot  deal  with  the  estate  in  any  other  light  than  as 
the  individual  estate  of  Almon  D.  Keller.  The  claims  of  the  creditors  of  the 
late  firm  of  Keller  &  Stake  can  be  proved  only  as  claims  against  the  bank- 
rupt, and  this  is  what  was  done  by  the  claimants  in  this  case;  for,  as  already 
stated,  in  the  proof  of  claim  filed  before  the  referee  the  averment  is  that 
'Almon  D.  Keller,  the  person  by  whom  a  petition  for  adjudication  in  bankruptcy 
has  been  filed,  was  at  and  before  the  filing  of  said  petition,  and  still  is,  justly 
indebted  to  said  corporation  in  the  sum  of  $563.94;'  and  it  is  thus  made  clear 
that  the  claimant  bases  its  right  to  share  in  the  estate  on  the  ground  that  it 
occupies  the  position  of  a  creditor  of  the  individual,  Almon  D.  Keller,  and  its 
rights  are  just  what  they  would  be  if  the  business  had  always  been  carried  on 
by  Keller  as  an  individual." 

§  2271.  Where  Sale  Made  to  Enable  Remaining  Partner  to 
Claim  Exemptions. — Where  the  sale  is  made  to  enable  the  remaining 
partner  to  claim  the  exemptions  from  the  property,  the  sale  has  been  held  by 
some  courts  to  be  void  and  the  fund  formerly  belonging  to  the  partnership 
to  be  subject  to  the  pursuit  of  the  partnership  creditors. ^^^ 

210.     [1867]   In  re  Johnson,  Fed.  Cas.  7,369. 

211:  In  re  Head  &  Smith,  7  A.  B.  R.  556,  114  Fed.  489  (D.  C.  Ark.):  In  this 
case  the  court  said  the  transfer  amounted  to  a  "preference"  to  individual  cred- 
itors. This  is  clearly  wrong.  A  preference  to  be  such  must  be  to  a  creditor  of 
the  bankrupt,  but  such  a  transfer  does  not  operate  to  give  any  creditor  of  the 
bankrupt  partnership  a  preference;  its  effect  is  to  take  away  all  property  from 


1390  REMINGTON    ON    BANKRUPTCY.  §   2272 

The  better  rule  would  seem  to  be  that  the  transfer  is  not  voidable,  but 
that  the  former  partnership  property  should  be  applied  to  the  payment  of 
partnership  debts  and  be  treated  precisely  as  if  still  partnership  property, 
so  far  as  partnership  creditors  who  have  not  assented  to  the  assumption 
of  the  old  firm  debts  by  the  continuing  partner  are  concerned  (precisely 
as  in  cases  of  the  assignment  of  a  partner's  interest  to  a  stranger),  but 
as  to  all  others  it  should  be  treated  as  the  bankrupt's  individual  p(rop- 
gi-ty;2i2  and  that  such  remaining  partner  of  course  would  not  be  entitled 
to  exemptions  out  of  the  partnership  property  as  against  the  partnership 
creditors. 213 

§  2272.  Retiring-  Partner,  Surety  for  Remaining  Partner,  Entitled 
to  Subrogation  to  Debts  He  Pays. — Such  retiring  partner  becomes 
surety  for  the  remaining  partner  and  is  entitled  to  subrogation  to  such 
debts  as  he  is  compelled  to  pay. 

In  re  Dillon,  4  A.  B.  R.  63,  100  Fed.  627  (D.  C.  Mass.):  "In  equity,  the  re- 
lation of   McGuire  to  Dillon  concerning  the   debts   of  the   old   firm  was  that   of 

all  partnership  creditors  until  the  individual  creditors  of  the  remaining  partner 
are   satisfied. 

In  re  Rosenbaum,  1  N.  B.  N.  541  (Ohio);  In  re  Bergman,  2  N.  B.  N.  &  R. 
806;  In  re  Rudnick,  2  N.  B.  N.  &  R.  769;  In  re  Rudnick,  4  A.  B.  R.  531  (D. 
C.  Wash.,  reversing  2  N.  B.  N.  &  R.  769).  Compare,  In  re  Worth,  12  A.  B.  R. 
566,  130  Fed.  927   (D.   C.   Iowa). 

It  has  been  held,  in  one  case,  that  any  scheme  or  device  resorted  to  by  per- 
sons in  contemplation  of  bankruptcy  for  the  purpose  of  charging  partnership 
assets  with  the  individual  liabilities  of  the  partners,  is  violative  of  the  provisions 
of  the  bankruptcy  act,  §  5  (g).  In  re  Jones  &  Cook,  4  A.  B.  R.  141,  100  Fed. 
781  (D.  C.  Mo.);  compare.  In  re  Denning,  8  A.  B.  R.  133,  114  Fed.  219  (D.  C. 
Mass.). 

Compare,  In  re  Worth,  12  A.  B.  R.  566,  130  Fed.  927  (D.  C.  la.):  In  this 
case  shortly  before  the  adjudication  of  a  partnership  and  its  individual  mem- 
bers, the  firm  was  dissolved  by  mutual  consent,  one  partner  retaining  its  assets 
and  assuming  its  liabilities.  The  court  held  that  the  assets  were  first  liable  in 
bankruptcy  under  §  5f,  for  his  individual  debts,  and  while  this  would  be 
inequitable  as  to  nonassenting  firm  creditors,  they  could  not,  at  the  same  time, 
affirm  the  dissolution  agreement  in  so  far  as  it  made  the  remaining  partner  an 
individual  debtor  of  a  firm  creditor  at  dissolution,  and  disaffirm  or,  repudiate 
it  so  far  as  it  was  a  transfer  of  the  firm  assets,  in  consideration  of  the  assump- 
tion of  firm  debts;  that  the  nonassenting  creditor  must  either  affirm  or  dis- 
affirm the  transaction  as  a  whole;  the  court  further  holding  that  in  such  case, 
where  the  receiver  of  the  creditor  bank  surrendered  all  preferences  he  had 
under  a  chattel  mortgage  upon  the  stock  of  merchandise  formerly  belonging 
to  the  firm,  and  an  assignment  of  account  due  it,  given  by  the  purchasing  part- 
ner within  the  four  months  period,  the  proceeds  of  the  assets  of  the  firm  and 
its  individual  members  should  be  distributed  as  though  no  dissolution  had 
taken  place.     The   court  finally  says: 

"It  will  be  more  equitable  to  hold  that  the  relation  of  the  creditors  of  the 
copartnership  and  of  the  individual  members  thereof  to  the  partnership  assets 
are  not  changed  by  this  transaction  of  Oct.  16  and  that  the  proceeds  of  the 
assets  of  the  firm  and  is  individual  members  should  be  distributed  as  though 
such  transaction  had  not  taken  place." 

Compare,   In  re   Gillette,   5  A.   B.   R.   123,   104   Fed.   769    (D.    C.   N.   Y.). 

212.  Compare,  suggestively,  obiter.  Deaf  &  Dumb  Institute  v.  Crockett,  17 
A.  B.  R.  233  (N.  Y.  Sup.  Ct.  App.  Div.). 

213.  Compare,  In  re  Hosier,  7  A.  B.  R.  268,  112  Fed.  138  (D.  C.  Vt.) ;  com- 
pare, inferentially.  In  re  Head  &  Smith,  7  A.  B.  R.  556,  114  Fed.  489  (D.  C. 
Ark.). 


§    2275  '  DISTRIBUTION    TO    CREDITORS.  1391 

surety.  By  this  contract  with  McGuire,  Dillon  made  himself  primarily  re- 
sponsible for  the  payment  of  the  firm  debts.  As  regards  Clafiin,  McGuire 
remained  primarily  liable,  together  with  Dillon;  but,  as  regards  Dillon,  Mc- 
Guire was  onljr  a  surety.  That  the  relation  between  the  two  former  partners 
is  that  of  principal  and  surety  is  recognized  in  bankruptcy.  *  *  *  As  to  the 
bankrupt's  estate,  therefore,  McGuire  stands  as  a  surety  who  has  paid  the 
debt   of  his   bankrupt   principal   subsequently   to    the   adjudication." 

Compare,  to  same  effect.  In  re  Carmichael.  2  A.  B.  R.  815,  96  Fed.  594  (D. 
C.  Iowa):  "By  the  purchases  made  by  him  of  the  judgments  entered  against 
the  firm  of  which  he  was  a  member,  he  discharged  the  liability  of  the  firm  to 
the  judgment  creditors,  but  became  a  creditor  of  his  copartners  for  their  re- 
spective shares  of  the  money  by  him  advanced  in  the  purchase  and  discharge 
of  these  judgments,  and  the  mere  fact  that  he  procured  assignments  in  writ- 
ing to  himself  of  the  judgments  in  question  does  not  change  his  position  with 
respect  to  his  copartners." 

§  2273.  But  Retiring  Partner's  Claim  for  Purchase  Price  of  Share, 
Not  to  Compete  with  Firm  Creditors  in  Individual  Estate  of  Re- 
maining Partner.— But  the  retiring  partner's  claim  for  the  purchase 
price  of  his  partnership  interest  should  not  share  in  the  old  firm  assets, 
nor  in  the  individual  assets  of  the  remaining  partner,  tuitil  after  the  firm 
creditors  have  been  satisfied ;  for  he  should  not  be  permitted  to  compete 
with  his  own  creditors. ^^^ 

§  2274.  Whether  "Preferential"  Transfer  by  Partnership  Void- 
able Where  Remaining  Partner  Alone  in  Bankruptcy. — Where  the 
bankrupt  partner  has  assumed  the  liabilities  and  taken  the  assets  of  the 
partnership,  it  is  a  question  whether  a  transfer  that  would  have  been  a 
preference  were  the  firm  in  bankruptcy  will  be  a  preference  in  the  individ- 
ual bankruptcy  of  the  partner.  It  has  been  held  that  the  effect  of  a 
preference  by  a  firm  cannot  thus  be  avoided  by  the  conversion  of  the 
firm  assets  into  individual  assets  and  the  bankruptcy  of  the  remaining 
partner. 215 

But  the  better  rule  would  seem  to  be  that  creditors  of  the  firm,  in  order 
to  preserve  their  rights  against  a  firm  preference,  should  file  a  petition  in 
bankruptcy  against  the  firm,  and  assert  the  lien  of  partnership  debts  on 
the  old  firm  assets. 

§  2275.  Second,  Where  One  Partner  of  Insolvent  Partnership 
Sells  Out  to  Other  and  Himself  Becomes  Bankrupt. — Where  one 
partner  of  an  insolvent  partnership  sells  out  to  the  other  and  later  himself 
becomes  bankrupt,  such  sale  is  valid,  and  the  former  partnership  assets 
cannot  be  administered  in  bankruptcy,  without  the  other  partner's  con- 
sent.216 

214.  In  re  Denning,  8  A.  B.  R.  133,  114  Fed.  219  (D.  C.  Mass.);  In  re  Ger- 
son,  5  A.  B.  R.  480  (Ref.  Pa.  affirmed  by  D.  C.). 

215.  See  In  re  Keller,  6  A.  B.  R.  334,  109   Fed.  118    (D.   C.   Iowa). 

216.  See  ante,  §  2251,  et  seq.  In  re  Kindt,  4  A.  B.  R.  148,  101  Fed.  107  (D. 
C.   Iowa). 


1392  REMINGTON    ON   BANKRUrTCY.  §    2278 

And  the  sale  is  valid,  even  though  the  sum  realized  is  used  ni  paying  off 
some  of  the  bankrupt's  own  creditors ;  and  the  remaining  partner  is  en- 
titled to  the  partnership  assets,  although  the  bankrupt  was  sCill  in  their 
actual  custody  as  manager  for  the  purchaser. ^'^'^ 

§  2276.  Third,  Where  Partnership  Interest  Transferred  to  Third 
Person,  Partner  Becoming  Bankrupt. — Third,  where  partnership  in- 
terests are  transferred  to  third  persons,  and  either  or  both  partners  be- 
come bankrupt,  the  transfer  is  to  be  treated  as  a  transfer  by  an  individual 
of  his  individual  assets. 

The  rights  of  firm  creditors  are  not  impaired.  The  transfer  is  of  a 
share  in  merely  the  surplus  after  payment  of  firm  debts  ;^^^  and  follows 
the  rules  laid  down  in  the  preceding  paragraphs. 

Division   6. 

Subrogation  to  Rights  of  Various  Parties  in  the  Distribution 

OF  Assets. 

subdivision  "a." 
Subrogation  by  Assignment  of  Claims  after  Bankrutcy. 

§  2277.  Subrogation  by  Assignment  of  Claims  after  Bankruptcy. 

— The  subject  of  the  assignment  of  claims  in  accordance  with  the  pro- 
visions of  the  Bankruptcy  Act  and  the  General  Orders  in  Bankruptcy,  has 
been  previously  discussed. ^^^ 

subdivision  "b." 
Equitable  Subrogation  under  Ordinary  Rules. 

§  2278.  Subrogation  by  Agreement  with  Bankrupt  or  Creditor. 

■ — Where  one  pays  a  debt  of  the  bankrupt  with  an  understanding,  made 
either  with  the  bankrupt  or  the  creditor,  that  he  shall  be  subrogated  to  the 
creditor's  claim,  he  will  be  so  subrogated  in  bankruptcy. 

Thus,  one  furnishing  the  bankrupt  money  to  pay  a  secured  note,  at  the 
bankrupt's  request,  and  under  promise  to  turn  over  the  notes  paid  thereby, 
is  entitled  to   subrogation. 220     Also,  an  arrangement  with  a  corporation 

217.  In  re  Kindt,  4  A.  B.  R.  148,  101  Fed.  107  (D.  C.  Iowa). 

218.  Obiter,  Deaf  &  Dumb  Institute  z>.  Crockett,  17  A.  B.  R.  240  (N.  Y. 
Sup.  Ct.  App.  Div.).  Compare,  In  re  Borelli  &  Callhan,  16  A.  B.  R.  115,  142 
Fed.  296   (D.  C.   Conn.). 

Compare,  In  re  Enorlish,  10  A.  B.  R.  133  (D.  C.  N.  Y.,  reversed  on  other, 
grounds,  in  11  A.  B.  R.  674,  127  Fed.  750).  This  was  a  case,  however,  of  the 
transfer  by  both  partners  of  an  undivided  one-half  interest  in  the  firm  assets 
(apparently  not  an  interest  in  the  partnership  but  only  in  its  assets)  to  a  cred- 
itor, the  wife  of  one  of  the  partners,  to  pay  a  debt,  more  than  four  months 
before  bankruptcy   of  the  partnership,  and  was  held  valid. 

219.  See  ante,  "Assigned  Claims,"  §  608,  et  seq. 

220.  In  re  McGuire,  13  A.  B.  R.  704,  137  Fed.  967  (D.  C.   Ohio). 


§   2279  DISTRIBUTION  TO  CREDITORS.  1393 

taking  over  the  bankrupt's  assets  and  business,  which  is  anxious  to  retain 
a  certain  agent's  favor,  to  forward  to  the  agent  the  remainder  of  certain 
goods  contracted  for  with  the  bankrupt,  with  the  understanding  that  the 
agent's  claim  should  be  presented  against  the  bankrupt  and  the  dividend 
be  turned  over  to  the  purchasing  company,  amounts  to  a  purchase  or 
agreement  for  subrogation  and  not  to  a  payment,  aUhough  the  words 
used  in  the  forwarding  were  "in  Hquidation"  of  the  agent's  claim. --^  But 
the  furnishing  of  money  to  a  bankrupt  corporation  to  pay  its  pay  roll,  under 
an  agreement  with  the  corporation  that  the  pay  roll  should  be  assigned,  but 
where  the  pay  roll  was  not  actually  assigned,  has  been  held,  but  improp- 
erly, not  to  entitle  the  person  so  advancing  to  an  equitable  subrogation 
to  the  pay  roll.---  It  would  seem  that  the  advancement  under  the  agree- 
ment created  the  equity  of  subrogation,  whether  the  assignment  was  ac- 
tually carried  out  or  not,  so  long  as  there  was  no  waiver.  And  the  taking 
of  workmen's  pay  checks  in  part  payment  of  provisions  furnished  to  them, 
no  agreement  for  assignment  existing  but  a  mere  supposition  being  in- 
dulged in  between  the  storekeeper  and  the  bankrupt  that  as  matter  of  law 
the  storekeeper  would  stand  in  the  shoes  of  the  workmen,  was  held  to  be 
no  assignment  and  not  to  entitle  the  storekeeper  to  subrogation. ^-^ 

§  2279.  Whether  Subrogation  to  Workmen's  Priority  Claims  to 
Compete  with  Workmen's  Own  Later  Claims. — But  it  has  been  held 
that  subrogation  to  workmen's  priority  claims  will  not  be  permitted  to  take 
precedence  over  workmen's  own  later  priority  claims,  where  the  under- 
standing was  not  with  the  workmen  but  solely  with  the  bankrupt. 

Browder  &  Co.  v.  Hill,  14  A.  B.  R.  619,  136  Fed.  821  (C.  C.  A.  Tenn.) :  "Ap- 
pellants do  not  claim  in  their  petition  or  assignment  of  error  or  briefs  that 
there  has  been  any  assignment  of  the  labor  claims  protanto  by  consent  or 
knowledge  of  the  laborers  themselves. 

"In  the  absence  of  evidence  that  the  owners  of  such  lien  claims  intended  to 
sell  and  agreed  that  the  lien  should  be  kept  alive  for  the  benefit  of  the  pur- 
chaser, payment  and  not  an  assignment  will  be  presumed.  Fenner  v.  F.  L. 
&  T.  Co.,  90  Fed.  349. 

"There  is  therefore  no  foundation  for  any  claim  that  appellants  are  as- 
signees of  the  claims  or  lien  in  behalf  of  labor  claims  under  any  agreement, 
express  or  implied,  with  the  creditors  themselves. 

"What  they  do  claim  is,  that  there  existed  an  express  agreement  with  the 
debtor,  the  Furnace  Company,  that  such  claims  when  paid  ofif  by  them  'should 
stand  against  the  Furnace  Company  in  the  same  attitude  as  if  held  by  the 
original  wage  earners.' 

"The  mere  fact  that  one  pays  off  a  debt  at  the  instance  of  the  debtor  or 
lends  money  to  pay  off  such   debt  does  not  entitle  him  to  subrogation  to  the 

221.  Haas-Barnick  Co.  v.  Poruondo,  15  A.  B.  R.  130,  138  Fed.  949  (D. 
C.  Pa.). 

222.  In  re  Carolina  Car  Co.,  11  A.  B.  R.  488,  127  Fed.  178   (D.  C.  N.  Car.). 

223.  Browder  &  Co.  v.  Hill,  14  A.  B.  R.  619,  136  Fed.  821   (C.   C  A.  Tenn.). 

2  Rem  B— 13 


1394  REMINGTON    ON    BANKRUPTCY.  §   2279 

liens  of  the  creditors  so  paid  off.  McDonald,  Shea  &  Co.  v.  Railroad,  93  Tenn. 
281;  Wood  V.  Guarantee  Trust  Co.,  128  U.  S.  416;  Morgan,  etc.,  v.  Texas 
Cent.  R.  Co.,  137  U.  S.  172;  Rhuling's  Appeal,  107  Pa.  161;  Sheldon  on  Subro- 
gation, §  243;  Unger  v.  Leiter,  32  Ohio  St.  210;  Griffin  v.  Proctor,  14  Bush 
(Ky.),  571;    Fenner  v.   F.  L.  &  T.   Co.,  cited  above. 

"Conventional  subrogation  may  result  from  a  direct  agreement  between  a 
debtor  and  a  third  person  who  pays  the  debt  that  he  shall  be  subrogated  to 
all  the  rights  and  securities  existing  in  behalf  of  the  creditor  whose  debt 
is  paid  off.  But  nothing  short  of  an  express  agreement  to  that  effect  will 
move  a  court  of  equity  in  behalf  of  such  a  creditor. 

"A  mere  understanding  upon  the  part  of  such  a  third  person,  under  no  obli- 
gations to  pay  the  debt,  that  he,  by  such  payment,  will  be  subrogated  to  the 
liens  of  the  creditor  is  not  enough.  Sheldon  on  Subrogation,  §§  243,  248,  250; 
27  Amer.  &  Eng.  Ency.  of  Law,  257;  Receivers  of  N.  J.  Ry.  Co.  v.  Wortendyke, 
27  N.  J.  Eq.  658,  overruling  Coe  v.  N.  J.  Ry.  Co.,  27  N.  J.  Eq.  Ill;  Unger  v. 
Leiter,  32  Ohio  Stat.  210;  Brice  v.  Watkins,  30  La.  Ann.  21;  Hutchinson  v. 
Rice,  105  La.  Ann.  471;    Cumberland  B.  &  *L.  Ass'n  v.  Sparks,  11  Fed.  648. 

"Subrogation  by  agreement  with  the  debtor  alone  to  the  equities  and  liens 
of  a  creditor  whose  debt  is  paid  off  by  one  under  no  obligation,  is  an  equitable 
doctrine  which  comes  from  the  civil  law  and  is  enforced  only  when  the  agree- 
ment creates  equitable  rights  against  the  debtor  which  will  not  impair  or  over- 
throw  equitable  rights   of  the   creditor  or   of   innocent  third  persons. 

"When  therefore  subrogation  depends  wholly  upon  an  agreement  with 
the  debtor  the  rights  of  the  creditor  to  the  remainder  of  his  debt  must  not  be 
prejudiced.  Sheldon  on  Subrogation,  §  248  and  §§  70  and  127;  27  Am.  & 
Ency.  (2nd  ed.),  257;  Bissett  v.  Gathone,  67  Mo.  App.  23,  26;  Stuckman  v. 
Roose,  147  Ind.  402;  Smith  v.  Morrison,  29  S.  W.  1116;  Fievel  v.  Zuber,  67 
Tex.  279. 

"The  evidence  of  a  direct  agreement  between  Browder  &  Co.  and  the  Fur- 
nace Company  that  the  lien  in  behalf  of -laborers  should  be  kept  alive,  and 
appellant  substituted  thereto  is  not  so  clear  and  satisfactory  as  to  justify  a 
reversal  of  the  finding  against  such  an  agreement  by  the  referee  and  district 
judge. 

"That  both  parties  supposed  that  Browder  &  Co.  would  stand  precisel}^  in 
the  shoes  of  the  laborers  who  received  orders  on  them  for  goods  simply  be- 
cause the  orders  were  given  as  credits  upon  current  wages  is  not  enough. 
It  may  have  been  of  some  convenience  to  the  workmen  to  receive  such  orders 
in  advance  of  one  of  the  regular  pay  daj's,  but  it  was  a  convenience  for  which 
they  doubtless  more  than  paid,  for  it  appears  that  if  they  insisted  upon  money 
instead  of  goods  a  discount  of  from  15  to  25  per  cent,  was  exacted.  Neither 
was  the  scheme  without  profit  to  the  debtor  for  the  arrangement  was  that  the 
Furnace  Company  should  give  credit  for  these  orders  on  Browder  &  Co.  only 
to  the  extent  of  95  per  cent,  of  their  face  value. 

"So,  too,  if  it  did  not  suit  the  convenience  of  the  Furnace  Company  to 
pay  these  orders  when  the  wages  of  the  men  became  due  an  ordinary  promis- 
sory note  was  given  in  settlement  or  a  mere  credit  was  given  upon  the  books 
for  the  aggregate  of  the  orders  presented.  All  of  these  circumstances  tend  to 
indicate  that  the  ordinary  relation  of  debtor  and  creditor  existed  and  that  the 
parties  acted  upon  the  erroneous  idea  that  because  the  orders  given  were  in 
paftial  payment  of  wages  that  the  debt  thus  created  would  stand  in  the  shoes 
of  the  debt  paid  off. 

"Neither  would  be  justified  in  reversing  the  order  denying  subrogation 
when  it  is  evident  that  subrogation  will  prejudice  the  rights  of  the  very  labor- 


§    2281  DISTRIBUTION  TO  CREDITORS.  1395 

ers  whose  claims  were  only  partially  paid  off  by  the  goods  supplied  them  upon 
the  employer's  order. 

"The  distinct  stipulation  is  that  the  assets  of  the  bankrupt,  after  paying- 
expenses,  will  not  pay  labor  claims  proper  in  full  if  this  substitution  is  allowed. 

"Being  a  pure  equity,  subrogatioh  by  agreement  with  the  debtor  alone  will 
not  be  accorded  if  it  impair  the  security  of  the  creditor  for  the  remainder  of 
his   debt  or  prejudice   innocent  third  parties   having  equities   of   equal   rank." 

§  2280.  Subrogation  of  Sureties  for  Bankrupt  to  Creditors' 
Rights  and  of  Creditors  to  Indemnity  Given  Sureties. — Likewise, 
sureties  for  the  bankrupt  are  entitled  to  subrogation  pro  tanto,  to  the 
creditors'  rights  and  indemnities ;  and  creditors,  on  their  part,  are  en- 
titled to  subrogation  to  indemnity  given  sureties  for  the  debt. 

Thus,  a  retiring  partner  is  subrogated  to  the  claim  of  a  creditor  which 
he  has  been  compelled  to  pay;--^  and  the  trustee  of  one  bankrupt  part- 
ner may  prove  against  the  individual  estate  of  the  other  partner  the  claim 
of  an  individual  creditor  of  the  other  partner  for  which  he  W^as  ssrety  and 
which  he  has  paid.--^  Creditors  have  right  of  subrogation  to  the  indem- 
nity given  by  the  debtor  to  the  surety. ^^^ 

Thus,  also,  a  surety,  upon  payment,  after  bankruptcy,  of  the  bankrupt's 
debt,  may  be  subrogated  to  a  valid  attachment  lien  held  by  the  creditor. 

Moody  V.  Huntley,  17  A.  B.  R.  904,  149  Fed.  797  (D.  C.  Vt.) :  "In  this 
country,  the  whole  current  of  authorities  is  that  payment  of  a  debt  by  a  surety 
or  endorser  is  considered  to  operate  as  an  assignment  of  it,  and  the  equity  of 
subrogation  has  received  a  liberal  and  broad  construction,  dependent,  however, 
upon  the  preliminary  question  of  fact  whether  the  payment  was  intended  as  a 
purchase  or  an  extinguishment  of  the  debt.  If  the  former,  the  surety  signer, 
as  the  purchaser,  may  be  subrogated  to  all  the  rights  of  the  original  creditor." 

And  a  wife,  who  has  mortgaged  her  separate  property  for  her  husband's 
debt,  will  be  subrogated  to  the  creditor's  claim  on  payment  thereof.^^^ 
Likewise,  sureties  paying  their  principals'  debts  in  w'hole  or  in  part  are 
subrogated  pro  tanto  to  the  creditors'  claims  and  rights  in  the  dividends.^^s 

t§  228L  Subrogation  of  Interested  Party,  Paying  to  Preserve 
Assets. — Where  one,  not  a  volunteer  but  interested  in  the  bankrupt's 
business  or  in  the  property  involved,  pays  a  claim  in  order  to  preserve  or 
protect  the  business  or  property,  the  claim  is  not  necessarily  extinguished, 
but  he  may  be  subrogated  to  the  rights  of  the  claimant. 

Thus,  a  remainderman  furnishing  money  to  pay  taxes  to  a  bankrupt  life 
tenant,  who  has  been  collecting  rents  after   the  bankruptcy,  the  trustees 

224.  In  re  Dillon,  4  A.  B.  R.  63,  100  Fed.  627   (D.  C.   Mass.). 

225.  In  re  Mason  &  Son,  2  A.   B.   R.   60   (Ref.   R.  I.). 

226.  In  re  Printing  Co.  v.  Brew.  Co.,  4  A.  B.  R.  183,  101  Fed.  699  (C.  C. 
A.  Ky.). 

227.  In  re   Carter,   15   A.   B.   R.   126,   138   Fed.   846    (D.   C.   Ark.). 

228.  See  ante,  subject  of  surety's  claims,  §  613. 


1396  REMINGTON   ON    BANKRUPTCY,  §   2284 

in  bankruptcy  having  successively  resigned,  is  entitled  to  reimbursement 
out  of  the  bankrupt  estate.--^ 

§  2282.  Mere  Volunteers  Not  Entitled  to  Subrogation. — But  a  mere 
volunteer,  not  interested  in  the  property  involved  nor  acting  in  pursuance 
of  an  agreement  for  subrogation,  is  not  entitled  to  subrogation. 

Thus,  as  to  the  purchaser  of  a  tax  title,  where  a  city,  after  filing  a  claim 
for  unpaid  taxes  upon  the  real  estate  of  a  bankrupt,  sold  under  mortgage 
foreclosure  in  the  state  court  free  of  all  taxes  (the  state  court  refusing  to 
order  the  taxes  paid  from  the  proceeds  because  the  bankrupt  act  was 
thought  to  require  priority  of  payment  thereof  from  the  personal  estate  of 
the  bankrupt)  sells  the  property  for  the  unpaid  taxes  as  provided  by  stat- 
ute, the  purchaser  at  the  tax  sale  was  held  not  to  be  entitled  to  subrogation 
to  the  city's  right  of  priority  of  payment  from  the  bankrupt  estate. 

In  re  Brinker,  12  A.  B.  R.  125,  128  Fed.  634  (D.  C.  X.  Y.) :  "Xor  does  the 
principle  bf  the  right  of  equitable  subrogation  have  application  here.  *  *  * 
The  purchasers  of  the  tax  certificates  were  not  obliged  to  bid  in  the  property 
at  the  tax  sale  in  order  to  protect  themselves.  They  were  not  mortgagees  or 
judgment  creditors,  or  even  creditors,  of  the  bankrupt.  They  are  third  parties 
to  the  transaction,  pure  and  simple,  and  accordingly  cannot  invoke  the  aid  of 
the  doctrine  of  subrogation." 

Thus,  also,  the  paying  of  a  bankrupt  corporation's  pay  roll,  but  with  no 
understanding  for  subrogation,  either  with  the  corporation  or  the  work- 
men, and  without  present  pecuniary  interest,  does  not  entitle  to  subro- 
gation.^^o 

§  2283.  No  Subrogation  of  Trustee  to  Liens  on  Exempt  Property 

Paid  Off  on  Eve  of  Bankruptcy. — Xo  right  of  subrogation  to  liens  on 
exempt  property  paid  off  by  the  bankrupt  on  the  eve  of  bankruptcy  exists 
in  favor  of  the  trustee. -^^ 

Division  7. 
Procedure  on   Distribution. 

§  2284.  Distribution  to  Be  Based  on  Order  of  Court. — The  trustee 
should  make  no  distribution  without  first  obtaining  an  order  of  the  court. 
Where  there  are  partnership  and  individual  assets  and  liabihties  for  ad- 
ministration, the  marshaling  of  the  estates  is  to  be  based  upon  an  order  of 
the  court.  Likewise,  priority  claims  are  not  to  be  paid  tmtil  allowed  and 
ordered  paid  by  the  court.  Dividends  are  not  to  be  paid  until  declared  and 
ordered  paid  by  the  court. 

There  seems  to  be  no  set  form  of  procedure  for  bringing  about  these 

229.  In  re  Force,  4  A.  B.  R.  114  (Ref.  Mass.).  As  to  reimbursement  for 
taxes  paid  and  subrogation  to  tax  liens  paid  off,  see  ante.  §  2149. 

230.  In  re  Taft,  13  A.  B.  R.  417,  133  Fed.  511   (C.  C.  A.  Ohio). 

231.  Obiter,  In  re  Wilson,  10  A.  B.  R.  524,  123  Fed.  20  fC.  C.  A.  Calif.); 
contra,   In  re  Boston,  3  A.  B.  R.  388,  98  Fed.  587   (D.   C.  Neb.). 


§   2286  DISTRIBUTION  TO  CREDITORS.  1397 

orders  of  distribution.  Undoubtedly,  a  formal  motion  would  be  proper, 
although  in  practice  it  is  not  customary.  Usually  the  order  marshaling 
the  estates,  where  partnership  and  individual  estates  are  being  admin- 
istered in  one  bankruptcy,  and  the  order  declaring  a  dividend,  are  made 
upon  oral  motion,  generally  at  the  coming  on  of  the  hearing  upon  the 
trustee's  report. 

SUBDIVISION   "a." 

Trustee's  Reports  and  Meetings  of  Creditors  to  Consider  Them. 

§  2285.  Trustees'  Reports. — The  first  step  in  practice  towards  the 
distribution  of  the  assets  js  the  filing  by  the  trustee  of  one  of  the  reports 
required  by  the  statute  and  Supreme  Court's  General  Orders  to  be  filed 
by  him  from  time  to  time  as  part  of  his  duties. 

It  is  one  of  the  statutory  duties  of  the  trustee  to  report  to  the  court, 
in  writing,  the  condition  of  the  estate  and  the  amount  of  money  on  hand, 
and  such  other  details  as  may  be  required  by  the  court,  within  the  first 
month  after  his  appointment  and  every  two  months  thereafter,  unless 
otherwise  ordered  by  the  court. ^^^ 

§  2286.  Form  of  Trustee's  Reports. — The  form  of  trustee's  report 
prescribed  by  the  Supreme  Court,  known  as  Official  Form  No.  49,  should 
be  followed  with  such  alterations  as  may  be  necessary  to  suit  the  partic- 
ular case.233 

This  form,  like  the  other  prescribed  forms,  is  merely  directory  and  need 
not  be  followed  where  the  facts  of  the  case  require  variation  from  them.^^* 

And  here  it  might  properly  be  remarked  that  these  official  forms,  while 
indicative  of  the  supreme  court's  interpretations  of  the  statutory  provisions 
and  thus  valuable  in  aiding  in  the  interpreting  of  the  statute,  are  not  to 
be  absolutely  followed,  in  all  events,  but  may  be  altered  to  suit  the  cir- 
cumstances of  each  case.  Indeed,  the  last  order  of  the  Supreme  Court's 
General  Orders  in  Bankruptcy,  Order  No.  38  itself,  expressly  states  that : 

"The  several  forms  annexed  to  the  General  Orders  shall  be  observed  and  used, 
with  such  alterations  as  may  be  necessary  to  suit  the  circumstances  of  any 
particular  case." 

In  practice  the  trustee  does  not  attempt  to  follow  the  prescribed  form. 
No.-  49,  in  making  his  reports  and  particularly  in  making  the  report  that 
is  preliminary  to  a  distribution  of  the  assets. ^35 

232.  Bankr.  Act,  §  47   (10).       See  ante,  §  917. 

233.  Official   Form   No.   49. 

234.  See  ante,  §  26. 

235.  But  see  In  re  Carr,  8  A.  B.  R.  636,  116  Fed.  556  (D.  C.  N.  Car.),  where 
the  court  says:  "They  (meaning  the  referees,  trustees  and  depositories) 
must  regard  the  rules  as  prescribed  by  the  Supreme  Court  in  the  general  orders 
and  by  this  court  in  the  district  rules.  *  *  *  These  rules  are  made  for  a 
purpose  which   they   serve   only  when   observed."     Also,    see   ante,   §   26. 


1398  REMINGTON    ON    BANKRUPTCY.  §   2291 

fThe  report  made  at  this  stage  of  the  proceedings  usually  states  the 
amount  of  money  on  hand ;  the  amount  still  likely  to  come  in ;  the  expenses 
incurred  thus  far  in  the  administration  of  the  estate  and  those  that  are 
likely  to  be  incurred  therein  in  the  future ;  the  costs  of  the  court's  officers, 
their  fees,  expenses  and  commissions;  the  disbursements  already  ordered 
by  the  court;  the  sjeveral  amounts  claimed  by  creditors  who  claim  to  have 
priority  of  payment  out  of  the  fund,  and  the  several  amounts  claimed  by 
general  creditors  who  are  without  priority;  the  report  usually  ending 
or  being  accompanied  with  a  request  that  the  court  allow  the  trustee  his 
expenses,  tax  the  fees  and  costs  and  commissions,  determine  the  validity 
and  priority  of  claims  and  order  them  paid  in  the  order  of  their  priority, 
and  finally  declare  a  dividend  to  creditors. 

§  2287.  Review  of  Order  Approving  Trustee's  Report  and  Al- 
lowing Expenses  and  Commissions. — The  order  approving  the  trus- 
tee's report,  allowing  expenses  and  commissions  and  declaring  a  dividend 
may  be  reviewed. -^^ 

§  2288.  If  Meeting  Called  to  Consider  Report,  Ten  Days  Notice 
Requisite. — If  a  meeting  of  creditors  is  called  to  consider  the  report, 
ten  days  notice  by  mail  must  be  given  to  all  creditors,  unless  they  have 
waived  the  notice  in  writing.-^''' 

§  2289.  Also,  If  Dividend  to  Be  Declared.— If  a  dividend  is  to  be 
declared,  ten  days  notice  thereof  likewise  must  be  given. ^^s 

§  2290.  Contents  of  Notice. — The  notice  need  not  state  the  iterris  of 
expenses  or  the  particular  amounts  of  the  various  applications  for  allow- 
ance of  attorneys'  fees,  etc.,  to  be  considered,  but  it  is  good  practice  to 
state  in  the  notice  as  much  of  this  kind  of  information  as  is  feasible,  for 
in  this  way  creditors  are  kept  informed  of  the  progress  of  the  estate,  and 
oftentimes  a  wholesome  corrective  influence  is  exercised  against  exorbi- 
tant charges  and  extravagent  allowances  for  attorneys'  fees  and  other 
expenses. 

§  2291.  Auditing  of  Accounts. — It  is  the  duty  of  the  referee  in  charge 
to  audit  the  accounts  of  the  trustee  ;239  also  that  of  the  receiver. -^^     And 

236.  In  re  Scherr,  14  A.  B.  R.  794  (D.  C.  Pa.).  See  post  §  2839,  et  seq.,  "Ap- 
peal and  Review." 

237.  Bankr.  Act,  §  58  (a) :  "Creditors  shall  have  at  least  ten  days  notice  by- 
mail,  to  their  respective  addresses  as  they  appear  in  the  list  of  creditors  of  the 
bankrupt,  or  as  afterwards  filed  with  the  papers  in  the  case  by  the  creditors, 
unless  they  waive  notice  in  writing  of  *  *  *  all  meetings  of  creditors."  Also, 
see   ante,   §   565. 

238.  Bankr.  Act,  §  58  (a)   (5).     See  ante,  §  565. 

239.  Gen.  Order  No.  XVII:  "All  accounts  of  trustees  shall  be  referred  as  of 
course  to  the  referee  for  audit,  unless  otherwise  specially  ordered  by  the 
court."     Bankr.  Act,  §  62.     Also,  see  ante,  §  517. 

240.  Impliedly,  In  re  Reliance  Storage  &  Warehouse  Co.,  4  A.  B.  R.  49,  100 
Fed.  619  (D.  C.  Pa.).     See  ante,  §  518. 


§   2294  DISTRIBUTION  TO  CREDITORS.  1399 

it  is  the  referee's  duty  to  closely  scrutinize  the  accounts,  whether  excep- 
tions are  filed  or  not.^^i 

§  2292.  At  Time  and  Place  Set,  Report  to  Be  Passed  on,  Ex- 
penses Allowed,  Dividends  Declared  and  Distribution  Ordered. — 

At  the  time  and  place  set  in  the  notice,  it  is  usual  to  approve  or  disap- 
prove the  report,  in  whole  or  in  part,  allow  the  expenses  of  the  officers 
of  the  court  and  their  fees,  allow  claims  of  creditors,  including  those 
entitled  to  priority  of  payment,  declare  a  dividend  and  order  distribution. 

§  2293.    Exceptions  to  Reports  and  Orders  of  Distribution. — Of 

course,  exceptions  may  be  taken  by  parties  in  interest,  to  the  approval 
of  the  reports,  and  the  allowance  of  expenses  and  fees  and  to  the  order 
of  distribution. 

t§  2294.  Exceptions  to  Accounts  to  Be  Filed  Promptly. — Excep- 
tions to  the  receiver's  or  trustee's  account  should  be  filed  promptly .~  They 
do  not  come  under  General  Order  21,  paragraph  6,  relative  to  the  re- 
examination of  claims.-'*- 


241.  In  re  Baginsky,  2  A.  B.  R.  243  (Ref.  La.).     See  ante,  §  517. 

242.  In  re  Reliance  Storage  &  Warehouse  Co.,  4  A.   B.   R.  49,  100   Fed.   61& 
(D.  C.  Pa.). 

Exceptions  to  distribution — Practice  as  to  time  of  filing.     In  re   Heebner,  13 
A.  B.  R.  256,  132  Fed.  1003  (D.  C.  Pa.). 


CHAPTER  XLII. 
Ci<osiNG  AND  Reopening  oe  Estates. 

Synopsis  of  Chapter. 

DIVISION  1. 

§  2295.   Final   Report  and   Final   ]\Ieeting. 

§  2296.  Ten  Days  Notice  of  Final  Reports  and  Final  Meetings. 

§  2297.  Trustee's   Duty  to  File   Final  Report. 

§  2298.  Estate   Closed  by  Order  Approving  Trustee's   Report  and   Discharging 

Trustee  from   His   Trust. 
§  2299.  Certifying  to   Referee's    Record   and   Transmission   to    District    Clerk. 

DIVISION  2. 

§  2300.  Jurisdiction  to  Reopen  Estates. 

§  2301.  Only    One    Ground    for    Reopening — Lack    of    Full    Administration. 

§  2302.  Duty  of   Court   to   Reopen   on   Proper   Showing. 

§  2303.  But    Reopening,    Matter    of    Sound    Discretion. 

§  2304.  What    Is    Lack   of  "Full"   Administration. 

§  2305.  No   Time   Limited   for   Application   to    Reopen. 

§  2306.  But  Must   Be  within  Reasonable  Time:    Laches   Will   Bar. 

§  2307.  Application    Not    a    "Suit"    within    §    11    (d)    Limiting    "Suits"    to    Two 

Years. 
§  2308.  Procedure:    Application  to  Be  to  Judge. 
§  2309.  No   Formality   Requisite  in   Application. 
§  2310.  But   Not   to   Be   Indefinite:    Should   Be  Verified   and   Show   Assets   Un- 

administered  or   Other   Lack. 
§  2311.  Who    May   Apply:     Only   Creditors   Who    Have   Proved   pr   May   Prove 

Claims,    Competent. 
§  2312.  Who    May    Oppose    Reopening. 

§  2313.  Whether    Third    Party    Who    Has    Interests    in    Property    Competent. 
§  2314.  Trustee  Elected  Anew  and  Administration  to  Proceed  in  Usual  Manner. 
§  2315.  Reopening  Does  Not  Toll  Year's  Limitation  for  Proof  of  Claims. 

Division  1. 

Ceosing  oe  Estates — Finae  Meeting. 

§  2295.  Final  Report  and  Final  Meeting. — If  no  appeal  or  error  pro- 
ceedings are  pending,  the  final  dividend  is  declared,  the  trustee's  final  re- 
port filed,  the  final  meeting  of  creditors  held  and  the  estate  closed  and  the 
trustee  discharged  of  his  trust. ^ 

1.  A  final  settlement  of  the  bankrupt's  estate  will  not  be  ordered  until  a  full 
and  complete  record  of  the  proceedings  is  made  showing  that  they  have  been 
conducted  in  accordance  with  the  requirements  of  the  statute  and  the  General 
Orders  of  the  Supreme  Court  and  the  district  court  rules,  and  a  balance 
sheet  is  presented  which  can  be  understood  and  from  which  the  bankrupt  and 
his  creditors  can  see  what  has  been  done  with  their  money.  In  re  Carr, 
8  A.  B.  R.  635,  116  Fed.  556  (D.  C.  N.  Car.). 

It  has  been  held,  that  a  final  dividend  maj^  be  declared  at  a  final  meeting. 
See  ante,  §  2211. 


§    2300  CLOSING  AND  REOPENING  OF  ESTATES.  1401 

§  2296.    Ten  Days  Notice  of  Final  Report  and  Final  Meeting. — 

Ten  days  notice  by  mail  must  be  given  of  the  final  meeting  of  creditors, 
to  all  creditors  except  those  who  have  waived  notice  in  writing.^ 

§  2297.  Trustee's  Duty  to  File  Final  Report.— It  is  the  trustee's 
ciuty  to  lay  before  the  final  meeting  of  the  creditors  a  detailed  statement 
of  the  administration  of  the  estate,  and  to  make  the  final  report  and  file 
the  final  account  with  the  referee  fifteen  days  before  the  day  fixed  for 
the  final  meeting  of  the  creditors.^ 

§  2298.  Estate  Closed  by  Order  Approving  Trustee's  Report  and 
Discharging  Trustee  from  His  Trust. — Upon  approval  of  the  final  ac- 
count and  report  the  trustee  is  discharged  of  his  trust  and  the  estate  is 
closed,  an  order  to  this  effect  being  entered.'* 

It  is  by  the  holding  of  such  final  meeting  and  the  entry  of  such  order 
of  approval  that  the  closing  of  the  estate  is  technically  effected.^ 

Section  2  gives  the  bankruptcy  court  jurisdiction  to  "(8)  close  estates  when- 
ever it  appears  that  they  have  been  fully  administered,  by  approving  the  final 
accounts  and  discharging  the  trustees;  and  reopen  them  whenever  it  appears 
they  were  closed  before  being  fully  administered." 

Clark  V.  Pidcock,  12  A.  B.  R.  315,  129  Fed.  745  (C.  C.  A.  N.  J.  :  "The  estate, 
however,  was  not  technically  closed  because  there  was  no  final  meeting  of  cred- 
itors or  discharge  of  a  trustee  upon  the  settlement  of  his  accounts." 

§  2299.  Certifying  to  Referee's  Record  and  Transmission  to  Dis- 
trict Clerk. — The  referee  thereupon  certifies  to  his  record  and  transmits 
it  to  the  district  clerk,  along  with  all  the  files ;  which  thereafter  are  filed 
iind  remain  the  record  and  files  of  the  bankruptcy  court  in  that  case.^ 

Division  2. 

Reopening  oe  Estates  Once  Closed. 

§  2300.  Jurisdiction  to  Reopen  Estates. — The  bankruptcy  court  has 
jurisdiction  to  reopen  estates  once  closed,  whenever  it  appears  they  have 
"not  been  fully  administered.'^ 

2.  Bankr.  Act,  §  58  (a):  Ten  days  notice,  etc.,  must  be  given  of  "(6)  the 
filing  of  the  final  accounts  of  the  trustee,  and  the  time  when  and  the  place  where 
they  will  be  examined  and  passed  upon." 

3.  Bankr.  Act,  §  47  (7)  &  (8).     See  ante,  §  517. 

4.  Where  the  referee  refuses  to  vacate  an  order  discharging  the  trustee, 
so  that  creditors  may  file  exceptions  to  the  final  account,  the  order  having 
been  entered  after  ten  days  notice  by  mail  to  all  creditors  and  in  default  of 
objections  from  any  of  them,  nevertheless  the  district  court  has  power  to  vacate 
the  order.     Brown  v.  Persons,  10  A.  B.  R.  416  (C.  C.  A.  N.  J.). 

5.  In  re  Stein,  1  A.  B.  R.  663,  94  Fed.  124  (D.  C.  Ind.). 

6.  Compare  suggestions  In  re  Carr,  8  A.  B.  R.  635,  116  Fed.  556  (D.  C. 
N.  Car.). 

7.  Bankr.  Act,  §  2  (8).  In  re  Newton,  6  A.  B.  R.  52,  107  Fed.  430  fC.  C.  A. 
Mo.);  In  re  Paine.  11  A.  B.  R.  354,  127  Fed.  248  (D.  C.  Ky.);  impliedly,  Clark 
V.  Pidcock,  12' A.  B.  R.  309  (C.  C.  A.  N.  J.);  impliedly,  In  re  Ryburn,  16  A.  B. 
R.  514,  145  Fed.  662  (D.  C.  Conn.);  impliedlv.  In  re  Barton's  Estate,  16  A.  B. 
R.  569,  144  Fed.  540  (D.  C.  Ark.). 


1402  re;mington  on  bankruptcy.  §  2305 

§  2301.  Only  One  Ground  for  Reopening — Lack  of  Full  Adminis- 
tration.— And  there  is  only  the  one  ground  for  reopening  an  estate, 
namely,  that  it  has  not  been  fully  administered. 

In  re  Paine,  11  A.  B.  R.  354,  127  Fed.  248  (D.  C.  Ky.) :  "The  power  to  reopen 
a  case  is  given  in  one  contingency  only,  namely,  when  it  appears  that  t'he  case 
was  closed  before  being  fully  administered." 

§  2302.   Duty  of  Court  to  Reopen  on  Proper  Showing. — And  it  is 

the  duty  of  the  court  to  reopen  estates  once  closed,  whenever  sufficient 
proof  is  made  that  they  have  not  been  fully  administered. ^ 

§  2303.  But  Reopening,  Matter  of  Sound  Discretion. — It  rests 
within  the  sound  discretion  of  the  court,  in  a  view  of  all  the  circumstances, 
to  reopen  a  case  because  of  the  estate  not  being  fully  administered.^ 

Simply  that  the  bankrupt  has  been  denied  a  discharge,  and  creditors 
may  pursue  him  on  old  debts,  will  not  cause  the  refusal  of  an  application 
to  reopen  the  estate.  The  creditors  may  pursue  the  assets  through  the 
machinery  of  the  bankruptcy  court  if  they  so  desire. ^"^  And  no  reopening 
will  be  granted  pn  application  of  the  bankrupt  eighteen  months  after  his 
discharge,  where  no  assets  exist  and  the  only  object  is  to  make  a  creditor 
a  party  to  bar  him  by  the  discharge. ^^ 

§  2304.  What  Is  Lack  of  "Full"  Administration.— It  has  been  held, 
that  the  existence  of  assets  unadministered  must  be  shown  ;^2  j^^t  probably 
there  may  be  other  lack  of  "full  administration''  that  might  authorize  a 
reopening.  1^ 

§  2305.  No  Time  Limited  for  Application  to  Reopen. — Xo  time  is 
fixed  by  statute  within  which  the  reopening  must  be  applied  for  or  made.^-* 

8.    In  re  Newton,  6  A.  B.  R.  52,  107  Fed.  430  (C.  C.  A.  Mo.) 
_  9.    In  re  Paine,  11  A.  B.  R.  351,  127  Fed.  248  (D.  C.  Ky.),  where  the  applica- 
tion was  made  on  the  ground  that  the  bankrupt  had  concealed  assets. 

In  re  Goldman,  11  A.  B.  R.  707,  129  Fed.  212  (C.  C.  A.  N.  Y.),  also  to  re- 
cover concealed  assets. 

Inferentially,  In  re  Newton,  6  A.  B.  R.  52,  107  Fed.  430  (C.  C.  A.  IMo.);  In  re 
Soper  &  Slada,  1  A.  B.  R.  193  (Ref.  N.  Y.). 

10.  In  re  Barton's  Estate,  16  A.  B.  R.  576,  144  Fed.  540  (D.  C.  Ark.). 

11.  In  re  Spicer,  16  A.  B.  R.  802,  145  Fed.  431  (D.  C.  N.  Y.). 

12.  In  re  Newton,  6  A.  B.  R.  52,  107  Fed.  439  (C.  C.  A.  :\Io.). 

13.  See,  by  way  of  suggestion,  although  contra.  In  re  Soper  &  Slada,  1  A. 
B.  R.  193  (Ref.  N.  Y.). 

District  court's  simple  order  affirming  referee's  order  denying  an  application 
to  reopen  a  case  must  be  taken  to  affirm  the  referee's  findings  of  fact  that  there 
was  no  unadministered  assets.  In  re  O'Connell,  14  A.  B.  R.  237,  137  Fed.  838 
(C.  C.  A.  Mass.). 

14.  In  re  Paine,  11  A.  B.  R.  354,  127  Fed.  248   (D.  C.  Ky.). 

Not  directly  in  point  but  inferentially,  Clark  v.  Pidcock,  12  A.  B.  R.  .309 
(C.  C.  A.  N.  J.):  "We  do  not  see  that  any  lapse  of  time,  or  at  all  events,  the 
time  elapsed  in  the  present  case,  can  have  the  effect  of  taking  away  this  dis- 
cretion to  appoint  a  trustee,  conferred  by  the  section  quoted  upon  a  court  of 
bankruptcy." 


§  2310  CLOSING  AND  re;opening  of  estates.  1403 

§  2306.  But  Must  Be  within  Reasonable  Time :     Laches  Will  Bar. 

— The  application   for  the  reopening  must  be  made  within  a  reasonable 
time;^^  and  laches  will  bar  the  right. 

In  re  Paine,  11  A.  B.  R.  351,  137  Fed.  248  (D.  C.  Ky.) :  "Something  is  doubt- 
less left  to  the  sound  discretion  of  the  court  upon  a  consideration  of  all  the 
circumstances  surrounding  each  case.  It  would  not  be  supposed  that  the  court 
would  as  readily  reopen  a  case  where  the  creditors  knew  all  the  facts  and  slept 
on  their  rights  as  where  the  concealment  of  assets  was  not  only  artful  but  was 
unknown  to  the  creditors,  and  not  discovered  by  them  for  a  long  period.  I  take 
the  proper  rule  to  be  that  a  fairly  reasonable  time,  under  all  the  circumstances 
of  a  case,  should  be  allowed,  and  that  if  the  parties  who  had  full  knowledge 
delayed  an  unreasonable  time  to  seek  to  reopen  a  case,  their  laches  would 
authorize  the  court  to  refuse  to  do  so.  But  neither  the  statute  nor  judicial  dis- 
cretion dictates  any  hard  and  fast  rule  in  the  premises." 

Thus,  a  case  will  not  be  reopened  on  the  application  of  a  creditor  in 
order  to  let  him  come  in  and  contest  the  bankrupt's  claim  to  exemptions, 
where  such  creditor  has  been  duly  scheduled  and  has  had  due  notice  of 
the  proceedings. 1^ 

§  2307.  Application  Not  a  "Suit"  within  §  11  (D)  Limiting 
"Suits"  to  Two  Years. — The  application  to  reopen  a  case,  upon  the 
ground  that  the  proceedings  were  closed  before  the  estate  was  fully  ad- 
ministered, is  not  a  "suit"  within  the  meaning  of  §  11  (d),  providing  that 
suits  shall  not  be  brought  by  or  against  a  trustee  subsequent  to  two  years 
after  the  estate  is  closed. i''' 

§  2308.  Procedure:  Application  to  Be  to  Judge. — Reopening  is 
accomplished  by  an  application  to  the  district  judge,  who,  if  he  approves 
the  application,  enters  an  order  reopening  the  case  and  rereferring  the 
case  to  the  referee;  who  thereupon  calls  a  new  meeting  of  creditors  for 
the  election  of  a  new  trustee,  and  closes  the  estate  again  in  the  regular 
manner,  when  it  has  been  finally  fully  administered.^^ 

§  2309.  No  Formality  Requisite  in  Application. — No  particular 
formality  is  necessary  in  the  application.^^ 

§  2310.  But  Not  to  Be  Indefinite:  Should  Be  Verified  and  Show 
Assets  XJnadministered  or  Other  Lack. — But  the  application  should 
not  be  indefinite,  and  it  should  be  supported  by  affidavit,  and  it  should 
show  assets  unadministered. 


15.  In  re  Paine,  11  A.  B.  R.  351,  127  Fed.  248  (D.  C.  Ky.). 

16.  In  re  Reese,  8  A.  B.  R.  411,  115  Fed.  993  (D.  C.  Ala.). 

17.  In  re  Paine,  11  A.  B.  R.  351,  127  Fed.  248  (D.  C.  Ky.). 

18.  But  compare,   In  re   Sonnabend,  18  A.   B.   R.   119    (Ref.   Mass.),  where  it 
is  held,  that  the  referee  has  the  power  to  reopen  the  estate. 

19.  In  re  Newton,  6  A.  B.  R.  52,  107  Fed.  430  (C.  C.  A.  Mo.). 


1404  REMINGTON    ON    BANKRUPTCY.  §   2314 

In  re  Newton,  6  A.  B.  R.  52,  107  Fed.  429  (C.  C.  A.  Mo.):  "We  do  not  wish 
to  be  understood  as  holding  that  the  petition  to  reopen'  an  estate  once  closed 
must  be  of  any  formal  or  technical  character.  Such  is  not  necessary,  and  in  the 
practical  administration  of  the  Bankruptcy  Act  is  not  advisable,  but  such  peti- 
tion must  be  either  in  itself,  or  in  connection  with  supporting  affidavits,  of  such 
persuasive  character  as  to  reasonably  satisfy  the  court  of  the  requisite  jurisdic- 
tional fact,  namely,  that  there  are  some  assets  belonging  to  the  bankrupt  which 
have  not  been  administered.  We  are  of  opinion  that  the  petition  in  this 
case,  if  treated  as  a  proceeding  to  reopen  the  estate,  was  vitally  defective,  in 
that  it  failed  to  state  any  substantial  or  definite  facts  from  which  the  court  could 
reasonably  find  that  there  were  assets  to  be  administered." 

Or,  if  not  assets  imadministered,  then  some  other  lack  of  due  adminis- 
tration.^^^ 

§  2311-.  Who  May  Apply:  Only  Creditors  Who  Have  Proved  or 
May  Prove  Claims,  Competent. — Only  creditors  who  have  proved, 
or  are  still'  entitled  to  prove,  their  claims  may  have  the  estate  reopened. 
Thus,  a  former  trustee  is  not  a  competent  party  ;2i  nor  is  a  creditor  who 
did  not  prove  his  claim  within  the  year  after  the  adjudication ;22  but  a' 
creditor  who  filed  his  proof  of  claim  within  the  year,  although  the  estate 
was  closed,  is  a  competent  party.^s  And  the  assignee  of  a  claim  that  was 
duly  proved  within  the  year  is  a  competent  party,  although  the  claim  was 
not  assigned  to  him  until  more  than  a  year  after  the  estate  had  been 
closed. 24 

'§  2312.  Who  May  Oppose  Reopening. — It  is  questionable  whether  a 
bankrupt  is  competent  to  oppose  the  reopening  of  a  case. 

In  re  Paine,  11  A.  B.  R.  354,  127  Fed.  246  (D.  C.  Ky.) :  "Indeed,  if  a  bankrupt 
has  honestly  surrendered  all  his  assets  to  the  trustee,  he  seems  to  have  no  in- 
terest in  the  question  of  reopening  the  case." 

§  2213.  Whether  Third  Party  Who  Has  Interests  in  Property 
Competent. — It  does  not  appear  to  have  been  decided  whether  a  third 
party  who  has  an  interest  in  the  property  is  competent,  either  to  apply  for 
reopening  or  to  oppose  the  reopening  of  an  estate. 

§  2314.  Trustee  Elected  Anew  and  Administration  to  Proceed  in 
Usual  Manner. — Upon  the  reopening  of  the  estate  a  trustee  must  be 
elected,  the  old  trusteeship  not  being  revived  by  the  reopening.     And  the 

20.  In  re  Soper  &  Slada,' 1  A.  B.  R.  193   (Ref.  N.  Y.). 

21.  In  re  Paine,  11  A.  B.  R.  351,  127  Fed.  246   (D.  C.  Ky.). 

22.  In  re  Paine,  11  A.  B.  R.  351,  127  Fed.  246  (D.  C.  Ky.). 

23.  In  re  Paine,  11  A.  B.  R.  351,  127  Fed.  246  (D.  C.  Ky.),  where  the  creditor 
filed  his  claim  in  the  clerk's  office  within  the  year,  the  estate  before  the  referee 
having  already  been  closed. 

24.  Impliedly,  Clark  v.  Pidcock,  12  A.  B.  R.  314,  129  Fed.  745  (C.  C.  A.  N.  J.). 


§   2315  CLOSING  AND  REOPENING  OF  ESTATES.  1405 

court  may  not  appoint  a  trustee  unless  the  creditors  have  first  been  given 
an  opportunity  to  do  so  and  have  failed  to  make  choice. ^^ 

In  re  Newton,  6  A.  B.  R.  54,  107  Fed.  429  (C.  C.  A.  Mo.):  "This  section,  in 
our  opinion,  confers  upon  the  creditors  6f  the  estate  the  same  authority  and 
power  with  respect  to  the  appointment  of  a  trustee,  after  an  estate  once  closed 
has  been,  by  order  of  court,  reopened,  as  is  conferred  upon  them  at  the  first 
meeting  held  after  the  adjudication." 

The  reopening  of  the  estate  effects  no  more  than  the  putting  of  the 
estate  back  into  process  of  adn:;inistration.  S^eps  must  be  taken,  just  as 
if  the  estate  had  never  been  closed;  thus,  the  reopening  of  the  estate  on 
the  ground  of  an  alleged  fraudulent  conveyance  is  not  in  and  of  itself  an 
authority  to  bring  suit  to  set  the  conveyance  aside. ^^ 

i§  2315.  Reopening  Does  Not  Toll  Year's  Limitation  for  Proof  of 
Claims. — The  reopening  of  the  estate  does  not  toll  the  statutory  limita- 
tion of  one  year  from  the  adjudication  for  the  proof  of-  debts;  and  subse- 
quent proceedings,  so  far  as  unsecured  creditors  are  concerned,  can  only 
redound  to  the  benefit  of  those  who  have  filed  their  proofs  of  claim  within 
the  year  after  the  adjudication. 2'' 

25.  Bankr.  Act,  §  44  (a):  "The  creditors  of  a  bankrupt  estate  shall  at  their 
first  meeting  *  *  *  qj-  after  an  estate  has  been  reopened  *  *  *  appoint 
one  trustee  or  three  trustees  of  such  estate." 

Inferentially,  obiter.  In  re  Barton's  Estate,  16  A.  B.  R.  577,  144  Fed.  540 
(D.  C.  x\rk.).  But  compare  procedure  in  Clark  v.  Pidcock,  13  A.  B.  R.  315, 
129  Fed.  745  (C.  C.  A.  N.  J.). 

26.  In  re  Ryburn,  16  A.  B.  R.  514,  145  Fed.  662  (D.   C.   Conn.). 

27.  In  re  Shaffer,  4  A.  B.  R.  728,  104  Fed.  431  (D.  C.  N.  Car.). 


PART  VIII. 

Crimes  and  Contempts. 


CHAPTER  XLIII. 

Crimes  against  the  Bankrupt  Act. 

Synopsis  of  Chapter. 

§  2316.  Crimes  against  the  Act. 

§  2317.  Sectien   29    Penal   and   to   Be   Strictly   Construed. 

§  2318.  Acts    Committed    before    Bankruptcy    Not   within    Statute. 

§  2319.  Continuing  Concealment.  '■ 

§  2320.  Whether    an    Offense,    if    Committed    before    Trustee    Appointed. 

§  2321.  Indictment  to  Be  Specific  and  to  Contain  All  Essential  Elements. 

§  2322.  Indictment    for    False    Oath    to    Aver    Falsity    and    Scienter. 

§  2323.  Schedules  of  Bankrupt   Not  to  Be  Used  before   Grand  Jury. 

§  2324.  Immunity    from    Use    of    Bankrupt's    Testimony,    Effectual    Obstacle    to 

Conviction  for  Perjury. 

§  2325.  Others    than    Bankrupt    Indictable    for    "False    Oath." 

§  2326.  But  Only  Bankrupt  Indictable  for  Concealment  of  Assets  from  Trustee. 

§  2327.  Essential   Elements   in   Proof  of  "False   Oath." 

§  2328.  In   Proof   of   "Concealment    of  Assets." 

§   2329.  Advice    of    Counsel. 

§  2316.  Crimes  against  the  Act. — In  order  to  carry  out  the  purposes 
of  bankruptcy  law,  the  Bankrupt  Act  declares  certain  acts  to  be  offenses 
and  prescribes  punishment  for  the  committing  of  them.  Perhaps  in  these 
offenses  will  be  found  what  is  left  of  the  original  criminal  nature  of  bank- 
ruptcy law  as  it  was  in  the  time  of  King  Henry  V^HI  and  his  successors. 

The  statute  in  §  29  declares  the  following  offenses  and  their  punish- 
ment : 

"Offenses  (penalty  for  misappropriating  property,  etc.)  :  (a)  A  person  shall 
be  punished,  by  imprisonment  for  a  period  not  to  exceed  five  years,  upon  con- 
viction of  the  oflfense  of  having  knowingly  and  fraudulently  appropriated  to  his 
own  use,  embezzled,  spent,  or  unlawfully  transferred  any  property  or  secreted 
or  destroyed  any  document  belonging  to  a  bankrupt  estate  which  came  into 
his  charge  as  trustee. 

(Concealing  property)  (b)  A  person  shall  be  punished,  by  imprisonment 
for  a  period  not  to  exceed  two  years,  upon  conviction  of  the  ofifense  of  having 
knowingly  and  fraudulently  (l)  concealed  while  a  bankrupt,  or  after  his  dis- 
charge, from  his  trustee  any  of  the  property  belonging  to  his  estate  in  bank- 
ruptcy; or  (2)  made  a  false  oath  or  account  in,  or  in  relation  to  any  proceeding 
in  bankruptcy;  (3)  presented  under  oath  any  false  claim  for  proof  against  the 
estate  of  a  bankrupt,  or  used  any  such  claim  in  composition  personally  or  by 
agent,  proxy,  or  attorney,  or  as  agent,  proxy,  or  attorney;  or  (4)  received  any 
material  amount  of  property  from  a  bankrupt  after  the  filing  of  the  petition, 
with  intent  to  defeat  this  act;  or  (5)  extorted  or  attempted  to  extort  any  money 
or  property  from  any  person  as  a  consideration  for  acting  or  forbearing  to  act 
in  bankruptcy  proceedings. 

(Acting  as  referee  when  interested)  (c)  A  person  shall  be  punished  by  fine, 
no%to  exceed  five  hundred  dollars,  and  forfeit  his  office,  and  the  same  shall 
thereupon  become  vacant,  upon  conviction   of  the  offense   of  having  knowingly 

2  Rem  B— 14 


1410  REMINGTON    ON   BANKRUPTCY.  §   2319 

(l)  acted  as  a  referee  in  a  case  in  which  he  is  directly  or  indirectly  interested; 
or  (2)  purchased,  while  a  referee,  directly  or  indirectly,  any  property  of  the 
estate  in  bankruptcy  of  which  he  is  referee;  or  (3)  refused,  while  a  referee  or 
trustee,  to  permit  a  reasonable  opportunity  for  the  inspection  of  the  accounts 
relating  to  the  afifairs  of,  and  the  papers  and  records  of,  estates  in  his  charge 
by  parties   in  interest  when   directed  by  the   court   so   to   do. 

(Prosecution  to  be  in  one  year)  (d)  A  person  shall  not  be  prosecuted  for 
any  oflfense  arising  under  this  act  unless  the  indictment  is  found  or  the  infor- 
mation is  filed  in  court  within  one  j-ear  after  the  commission  of  t?he  offense." 

Thus,  the  perpetration  of  a  fraudulent  concealment  is  a  punishable  of- 
fense;^ also  the  commission  of  a  false  oath.- 

§  2317.  Section  29  Penal  and  to  Be  Strictly  Construed. — Section 
29  is  a  penal  statute  and  must  be  strictly  construed. 

Field  V.  U.  S.,  14  A.  B.  R.  507,  137  Fed.  6  (C.  C.  A.  Ark.):  "A  penal  statute 
which  creates  and  denounces  a  new  offense  must  be  strictly  construed.  Where 
it  is  plain  and  unambiguous,  the  courts  may  not  lawfully  extend  it  by  interpre- 
tation to  a  class  of  persons  who  are  excluded  from  its  effect  by  its  terms  for 
the  reason  that  their  act  may  be  as  mischievous  as  those  of  the  class  whose 
deeds  it  denounces." 

§  2318.  Acts  Committed  before  Bankruptcy  Not  within  Statute. — 

This  provision  of  the  act  does  not  make  any  act  of  the  bankrupt  before 
the  bankruptcy  criminal.^ 

In  re  Stead  &  Curtis,  6  A.  B.  R.  75,  107  Fed.  6S2  (D.  C.  N.  Car.):  "*  *  * 
the  acts  made  criminal  under  the  Act  are  acts  after  the  adjudication." 

§  2319.  Continuing  Concealment. — But  concealment  from  the  trus- 
tee is  perpetrated — continuing  concealment — by  the  bankrupt's  failure  to 
reveal  recoverable  property,  when  the  duty  exists  for  him  to  reveal  it,  af- 
ter bankruptcy,  although  the  initial  acts  of  fraud  or  secreting  occurred  be- 
fore the  bankruptcy. 

U.  S.  V.  Cohn,  15  A.  B.  R.  357,  142  Fed.  983  (D.  C.  N.  Y.) :  "This  provision 
of  the  Bankrupt  Act  does  not  make  any  act  of  the  bankrupt  before  the  bank- 
ruptcy criminal.  But  if  a  bankrupt,  before  the  bankruptcy,  has  concealed  his 
property,  and,  after  his  trustee  is  appointed  continues  to  conceal  it  from  the 
trustee,  he  is  criminally  liable  under  this  section,  and,  if  indicted  for  such  crime, 
evidence   of  his   acts   of  concealment  before   the   bankruptcy,   as   well   as   those 

1.  U.  S.  V.  Levinson  &  Kornblut,  13  A.  B.  R.  32  (D.  C.  S.  C.) ;  U.  S.  v. 
Cohn,  15  A.  B.  R.  357  (D.  C.  N.  Y.) :  Indictment  for  comspiracy  to  conceal; 
U.  S.  V.  Lake,  12  A.  B.  R.  270,  129  Fed.  499  (D.  C.  Ark.);  U.  S.  v.  Marsh  Cham- 
bers, 13  A.  B.  R.  708,  135  Fed.  1023  (D.  C.  N.  Y.) ;  Field  v.  U.  S.,  14  A.  B.  R. 
507,  137  Fed.  6  (C.  C.  A.  Ark.). 

U.  S.  V.  Lowenstein,  11  A.  B.  R.  134  (D.  C.  Pa.):  Bankrupt  collecting  money 
'after  bankruptcy  and  paying  some  creditors  having  honest  debts:  held  not  fraud- 
ulent concealment.     McNeil  v.  U.  S.,  18  A.  B.  R.  18,  150  Fed.  82  (C.  C.  A.  Tex.). 

2.  Bartlett  v.  U.  S.,  5  A.  B.  R.  678,  106  Fed.  884  (D.  C.  Mont.);  U.  S.  v.  Lake, 
12  A.  B.  R.  270,  129  Fed.  499  (D.  C.  Ark.).  • 

As  to  duty  to  report  offenses  arising  in  the  course  of  the  proceedings  to  the 
district  attorney,  see  In  re  Simon  &  Sternberg,  18  A.  B.  R.  204  (D.  C.  Ga.). 

3.  U.  S.  V.  Cohn,  15  A.  B.  R.  357,  142  Fed.  983   (D.  C.  N.  Y.). 


§   2321  CRIMES  AGAINST  THE)  BANKRUPT  ACT.  '  1411 

subsequent  thereto,  would  undoubtedly  be  admissible  as  part  of  the  res  gestae. 
A  conspiracy  to  commit  a  crime  always,  in  the  nature  of  the  case,  precedes  the 
commission  of  the  crime;  and,  in  my  opinion,  it  does  not  follow,  because,  at 
the  time  that  a  conspiracy  is  entered  into  to  conceal  property  from  a  trustee, 
no  trustee  has  been  appointed  and  no  proceedings  in  bankruptcy  begun,  that, 
therefore,  the  crime  of  conspiracy  under  §  5440  cannot  have  occurred." 

And  evidence  of  acts  of  concealment  before  the  bankruptcy,  as  well  as 
those  subsequent  thereto,  are  admissible  as  part  of  the  res  gestae.'* 

§  2320.  Whether  an  Offense,  if  Committed  before  Trustee  Ap- 
pointed.— It  has  been  held,  in  an  obiter,  that  the  offense  of  concealment 
of  assets  from  a  trustee  may  be  committed  before  the  appointment  of  a 
trustee,  if  after  adjudication. 

Dbiter,  U.  S.  v.  Goldstein,  12  A.  B.  R.  755  (D.  C.  Va.) :  "It  is  true  that  clause 
1  applies  to  concealing  property  from  the  trustee,  and  that  in  the  case  at  bar 
the  alleged  concealment  was  prior  to  the  appointment  of  the  trustee.  But  when 
a  person  files  his  voluntary  petition  in  bankruptcy,  he  knows  that  a  trustee  will 
be  appointed,  and  that  such  trustee  takes  title  as  of  the  date  of  the  adjudication. 
It  follows  that  a  concealment  of  property  after  the  adjudication,  even  if  before 
the  appointment  of  the  trustee,  is  a  concealment  from  the  trustee." 

But  this  is  doubtful  law. 

§  2321.  Indictment  to  Be  Specific  and  to  Contain  All  Essential 
Elements. — The  indictment  must  be  specific  and  must  contain  all  the 
essential  elements  of  the  offense.^ 

Obiter,  McNiel  v.  U.  S.,  18  A.  B.  R.  22,  150  Fed.  82  (C.  C.  A.  Tex.):  "To 
support  this  contention  counsel  rely  on  United  States  v.  Carll,  105  U.  S.  611, 
to  the  efifect  that  in  an  indictment  upon  the  statute  it  is  not  sufficient  to  set 
forth  the  offense  in  the  words  of  the  statute,  unless  those  words  of  themselves 
fully,  directly,  and  expressly,  without  uncertainty  or  ambiguity,  set  forth  all 
the  elements  necessary  to  constitute  the  offense  intended  to  be  punished,  and 
the  fact  that  the  statute  in  question,  read  in  the  light  of  the  common  law  and 
of  other  statutes  on  the  like  matter,  enables  the  court  to  infer  the  intent  of  the 
Legislature,  does  not  dispense  with  the  necessity  of  alleging  in  the  indictment 
all  the  facts  necessary  to  bring  the  case  within  that  intent.  The  Carll  Case 
has  been  followed  by  the  Supreme  Court  in  many  cases.  See  United  States  v. 
Hess,  124  U.  S.  483;  Evans  v.  United  States,  153  U.  S.  584;  and  Keck  v.  United 
States,  172  U.  S.  434,  all  to  the  efifect  that  all  the  ingredients  of  the  ofifense  are 
to  be  charged  in  the  indictment,  although  the  statute  in  its  general  or  special 
description   has   omitted   some   of   them." 

Thus,  as  to  the  materiality  of  the  false  oath — no  allegation  of  the  mate- 
riality is  required,  where  the  facts  pleaded  sufficiently  show  of  themselves 
the  materiality.*^ 

4.  U.  S.  V.   Cohn,  15  A.  B.  R.  357,  142  Fed.  983  (D.  C.  N.  Y.). 

5.  Bartlett  v.   U.  S.,  5  A.  B.  R.  678,  105  Fed.  884  (C.  C.  A.  Mont.),  a  case  of 

6.  U.  S.  v.   Lake,  12  A.  B.  R.  270,  129  Fed.  499  (D.  C.  Ark.). 


1412  '  REMINGTON    ON   BANKRUPTCY.  §   2326 

Thus,  also,  as  to  the  description  of  the  property.  An  indictment  against 
the  president  of  a  bankrupt  corporation  for  making  a  false  oath  to  its 
schedules  may  describe  the  assets  charged  to  have  been  knowingly  and 
fraudulently  omitted  from  the  schedules  as  "one  hundred  and  fifty  thou- 
sand dollars  in  lawful  money  of  the  United  States."'''  And  the  averments 
of  the  indictment  must  not  be  made  argumentatively,  but  directly.^ 

§  2322.  Indictment  for  False  Oath  to  Aver  Falsity  and  Scienter. — 

The  indictment  for  a  false  oath  must  aver  not  only  knowledge  of  the  falsity 
but  also  must  directly  aver  the  falsity  itself.^ 

§  2323  Schedules  of  Bankrupt  Not  to  Be  Used  before  Grand 
Jury. — The  schedules  of  the  bankrupt  may  not  be  used  before  the  grand 
jury;  and  an  indictment  procured  by  their  use  will  be  dismissed,  even 
though  the- crime  charged  is  the  false  scheduling  itself,  whereby  a  fake 
oath  or  concealment  of  assets  was  perpetrated.^*^  This  rule  is  carrying 
the  doctrine  of  immunity  to  its  extreme.^ ^ 

§  2324.  Immunity  from  Use  of  Bankrupt's  Testimony  Effectual 
Obstacle  to  Conviction  for  Perjury, — The  statutory  immunity  of  §  7 
(9)  from  the  use  as  evidence  in  any  criminal  proceedings  of  the  bank- 
rupt's testimony  before  the  referee  is  an  effectual  obstacle  to  conviction 
for  perjury,  as  construed  b}^  the  courts. ^^ 

§  2325.    Others  than  Bankrupt  Indictable  for   "False   Oath." — 

A  person  need  not  be  a  bankrupt  in  order  to  be  indictable  for  making  a 
"false  oath"  in  a  bankruptcy  proceedings. 

Thus,  an  officer  of  bankrupt  corporation  may  be  so  indicted. ^-^ 

§  2326.  But  Only  Bankrupt  Indictable  for  Concealment  of  Assets 
from  Trustee. — But  only  the  bankrupt  is  indictable  for  concealment  of 
assets  from  the  trustee. 

Thus,  an  officer  of  a  bankrupt  corporation  may  not  be  indicted  under  §  29 
for  concealing  assets,  for  it  is  only  concealments  by  bankrupts  that  the 
statute  is  directed  against,  and  the  officer  is  not  the  bankrupt,  in  criminal 
prosecutions.^-^ 

Field  z'.  U.  S.,  14  A.  B.  R.  507,  137  Fed.  6  (C.  C.  A.  Ark.):  "The  officer  of 
bankrupt  corporation,  who  is  not  and  has  not  been  a  bankrupt,  is  not  liable  to 

7.  U.  S.  V.  Lake,  12  A.  B.  R.  270,  129  Fed.  499   (D.  C.  Ark.). 

8.  Bartlett  v.  U.  S.,  5  A.  B.  R.  678,  105  Fed.  884  (C.  C.  A.  Mont.). 

9.  Bartlett  v.  U.  S.,  5  A.  B.  R.  678,  105  Fed.  884  (C.  C.  A.  Mont.).  Compare, 
as  to  when  scienter  sufficiently  averred,  McNiel  v.  U.  S.,  18  A.  B.  R.  21,  150 
Fed.  82  (C.  C.  A.  Tex.). 

10.  U.  S.  V.  Marsh  Chambers,  13  A.  B.  R.  708,  135  Fed.  1022  (D.  C.  N.  Y.). 
But  compare.  State  zk  Strait   (Minn.),  102  N.  W.  913. 

11.  See  ante,  §   1556,  note. 

12.  U.  S.  V.  Simon,  17  A.  B.  R.  41  (D.  C.  Wash.).     See  ante,  §  1556. 

13.  U.  S.  V.  Lake,  12  A.  B.  R.  270,  129  Fed.  499   (D.  C.  Ark.). 

14.  U.  S.  V.  Lake,  12  A.  B.  R.  270,  129  Fed.  499  (D.  C.  Ark.). 


§   2329  CRIMES  AGAINST  THE  BANKRUPT  ACT.  1413 

punishment  under  §  29b  of  the  Bankruptcy  Law,  1898,  for  having  fraudulently 
and  knowingly  concealed  the  property  of  the  estate  of  the  corporation  in  bank- 
ruptcy from  its  trustee.  The  present  or  past  bankruptcy  of  the  person  accused 
is  an  indispensable  element  of  the  ofifense  denounced  by  the  statute." 

§  2327.  Essential  Elements  in  Proof  of  "False  Oath."— Upon 
the  trial  of  an  indictment  for  the  commission  of  a  "false  oath"  on  gen- 
eral examination,  it  must  be  proved  that  the  oath  was  an  oath  authorized 
by  the  Statute ;  that  it  was  in  fact  administered ;  that  it  was  administered 
to  the  defendant;  that  it  was  so  administered  by  one  authorized  to  admin- 
i.=ter  it;  that  the  testimony  was  willfully  false;  and  was  material  to  the 
subject  under  investigation.^^ 

An  oath  before  the  referee  is  sufificient.^^ 

§  2328.  In  Proof  of  "Concealment  of  Assets." — The  essential  ele- 
ments in  the  proof  of  concealment  of  assets  are  well  set  forth  in  the  charge 
to  the  jury  in  U.  S.  v.  Levinson,  13  A.  B.  R.  29  (D.  C.  S.  C.)  and  are  ex- 
plicated hereinafter  under  the  subject  of  "Concealment  of  Assets  as  Bar 
to  Discharge."  ^'^ 

§  2329.  Advice  of  Counsel. — Advice  of  counsel  may  negative  crim- 
inal interest. ^^ 

15.  U.  S.  V.  Wechsler,  16  A.  B.  R.  1  (D.  C.  N.  Y.).  See  post,  "False  Oath 
as  Bar  to  Discharge,"  §  2523. 

16.  U.  S.  V.  Simon,  17  A.  B.  R.  41  (D.  C.  Wash.). 

17.  See  post,  §  2487,  et  seq. 

18.  Obiter,  McNiel  v.  U.  S.,  18  A.  B.  R.  21,  150  Fed.  82  (C.  C.  A.  Tex.). 

As  to  this  subject,  see  similar  subjects  under  "Fraudulent  Concealments" 
and  "False  Oaths"  as  bars  to  discharge,  post,  §§  2487,  2523. 


CHAPTER  XLIV. 

Contempts. 

Synopsis  of  Chapter. 

§  2330.  Contempt,    What    Constitutes,    in    General. 

§  2331.  "Willfully  Evasive''  or  "Flagrantly  False''  Testimony  in  Face  of  Court, 

Contempt. 
§  2332.  Contempt   Not  in   Presence  of  Court. 
§  2333.  Advice    of    Counsel. 

§  2334.  Contempt  before   Referee,   What    Constitutes,    Defined   by    Statute. 
§  2335.  Referee    Has    No   Powder   to   Commit. 
§  2336.  Referee  Simply  to  Certify  Facts  to  Judge. 
§  2337.  Making  of   Certificate,  Judicial  Act,   Not   Ministerial   Duty. 
§  2338.  Judge  to   Hear  and  Punish,   if   Contempt   Committed. 
§  2339.  Power   to    Commit,    Cautiously   Exercised. 
§  2340.  Evidence  to  Be  beyond  Reasonable  Doubt. 
§  2341.  No    Punishment   for   Failure   to   Comply  with    Order   until    Opportunity 

Given    to    Show    Inability. 
§  2342.  Review  of  Refusal  to  Certify. 
§  2343.  Not  Reviewable  by  Habeas  Corpus. 
§  2344.  Order  of  District  Judge  Not  Reversed  Except  for  Clear  Error. 

§  2330.  Contempt,  What  Constitutes,  in  General. — What  will  con- 
stitute contempt  of  the  U.  S.  district  court  as  a  court  of  bankruptcy,  is 
left  in  general  to  the  ordinary  rules  of  law  upon  the  subject. ^ 

In  re  IMayer,  3  A.  B.  R.  533,  98  Fed.  839  (D.  C.  Wis.):  "The  district  court 
has  inherent  power  to  summarilj-  punish  for  contempt  the  concealment  or  with- 

1.  Instance,  In  re  Fellerman,  17  A.  B.  R.  789,  149  Fed.  244  (D.  C.  N.  Y.) : 
Willfully  evasive  testimony  in  face  of  court. 

Instance,  U.  S.  v.  Goldstein,  12  A.  B.  R.  755,  132  Fed.  789  (D.  C.  Va.) ;  in- 
stance, In  re  Home  Discount  Co.,  17  A.  B.  R.  170,  147  Fed.  538  (D.  C.  Ala.). 

Instance,  obiter,  Turrentine  r.  Blackmore,  4  A.  B.  R.  338,  28  So.  95  (Ala. 
Sup.  Ct.)  :  Instituting  suits  in  state  courts  to  recover  property  in  specie  from 
bankruptcy  trustee. 

Instance,  In  re  Fortunato,  9  A.  B.  R.  630,  123  Fed.  622  (D.  C.  N.  Y.) :  Dis- 
obedience of  injunction  restraining  execution  creditors  from  examining  the 
bankrupt  in  supplementary  proceedings. 

Instance,  Ex  parte  O'Neal,  11  A.  B.  R.  196,  125  Fed.  967  (D.  C.  Fla.) :  As- 
saulting trustee  while  the  latter  is  performing  the  duties  of  his  office. 

Instance,  In  re  Geiser,  12  A.  B.  R.  208  (D.  C.  Mont):  Constable  turning 
back  to  purchaser  at  execution  sale  excess  of  purchase  price  over  amount  of 
judgment  and  costs  and  denying  receipt  of  same  upon  order  of  referee  to 
surrender  the  same. 

Instance,  held  not  contempt.  In  re  INIcBryde,  3  A.  B.  R.  729,  99  Fed.  686  (D. 
C.  N.  Car.):  Merely  threatening  to  levy  but  not  actually  levying  on  property, 
after  adjudication. 

Instance,  not  contempt.  In  re  Watts,  10  A.  B.  R.  113,  190  U.  S.  1:  Under 
advice  of  counsel,  state  court  receiver  compelling  surrender  of  assets  previousl^- 
voluntarily  surrendered  by  him  to  the  receiver  in  bankruptcy. 

For  instances  of  contempt  for  failure  to  obey  summary  orders  to  surrender 
assets,  see  subject,  "Summary  Orders  on  Bankrupts  and  Others,"  ante, 
§  1856,  et  seq. 


§  2330  CONTEMPTS.  1415 

holding  from  the  trustee  of  money  or  property  traced  to  the  possession  or 
control  of  the  bankrupt." 

Boyd  V.  Gluckiich,  8  A.  B.  R.  398,  116  Fed.  131  (C.  C.  A.  Iowa):  "Frequent 
reference  is  made  to  §  41  of  the  Bankrupt  Act,  as  though  that  act  invested 
courts  of  bankruptcy  with  broader  and  larger  powers  to  punish  for  contempt 
than  is  possessed  by  other  United  States  courts.  It  does  nothing  of  the  kind. 
This  section  does  not  in  express  terms  confer  on  the  court  of  bankruptcy  the 
power  to  punish  for  contempt.  But  no  such  enactment  was  necessary.  The 
moment  the  court  was  called  into  existence  it  became  possessed  of  this  power 
by  the  operation  of  the  common  law,  as  well  as  by  §  725  of  the  Revised  Stat- 
utes of  the  United  States.  The  reference  to  the  power  to  punish  for  contempt 
in  §  41  of  the  Bankrupt  Act  was  not  to  confer  the  power  on  the  court  of 
bankruptcy,  for  its  creation  alone  invested  it  with  that  power,  but  it  was  to  make 
it  plain  that  the  power  was  not  conferred  on  referees  in  bankruptcy,  and  to  con- 
fer it  on  the  'judge'  of  the  court  of  bankruptcy,  who  could  not  exercise  the 
power  in  the  absence  of  the  statute  expressly  conferring  it.  This  is  done  by 
§  41b,  in  these  terms: 

"'(b)  The  referee  shall  certify  the  facts  to  the  judge,  if  any  person  shall 
do  any  of  the  things  forbidden  in  this  section.  The  judge  shall  thereupon,  in 
a  summary  manner,  hear  the  evidence  as  to  the  acts  comiplained  of,  and,  if  it  is 
such  as  to  warrant'  him  in  so  doing,  punish  such  person  in  the  same  manner, 
and  to  the  same  extent  as  for  a  contempt  committed  before  the  court  of  Bank- 
ruptcy.    *     *     *' 

"By  reference  to  §  41  it  will  be  seen  that  'the  things  forbidden  in  this  section,' 
concerning  which  the  referee  is  required  to  certify  the  facts  to  the  judge,  in- 
clude only  those  things  which  would  be  punishable  as  contempts  by  all  courts 
of  record.  They  are  the  common  and  familiar  heads  for  the  exercise  of  this 
jurisdiction  by  all  courts  of  record.  Xo  new  or  enlarged  jurisdiction  is  con- 
ferred, and  no  power  to  impose  a  punishment  which  might  not  rightly  and 
lawfully  be  imposed,  on  a  similar  state  of  facts,  by  any  other  United  States 
court.  Any  act,  matter,  or  thing  which  any  United  States  court  may  punish  as 
a  contempt  may  be  punished  as  such  by  a  court  of  bankruptcy;  and  any  act, 
matter  or  thing  which  cannot  be  punished  as  a  contempt  by  other  United  States 
courts  cannot  be  punished  as  such  by  a  court  of  bankruptcy.  Moreover,  the 
mode  of  proceeding  in  a  court  of  bankruptcy'  to  determine  whether  a  construc- 
tive contempt  has  been  committed  should  conform  to  the  established 
practice  in  like  cases  in  all  other  United  States  courts  as  near  as  may  be,  and 
what  is  legally  sufficient  to  purge  a  contempt  in  the  other  courts  of  the  United 
States  is  sufficient  to  purge  the  like  contempt  in  a  court  of  bankruptcy.     *     *     * 

"The  seventeenth  section  of  the  Judiciary  Act  of  1789  (now  §  725  of  the 
Revised  Statutes  of  the  United  States),  provides  that  all  the  courts  of  the 
United  States  'shall  have  power  to  punish  by  fine  or  imprisonment  at  the  discre- 
tion of  said  courts  all  contempts  of  authority  in  any  cause  or  hearing  before  the 
same.'  For  what  was  esteemed  an  excessive  and  oppressive  exercise  of  the 
power  to  punish  for  contempt  under  this  section  and  at  common  law,  the  United 
States  House  of  Representatives  in  1831  adopted  and  presented  to  the  Senate 
articles  of  impeachment  against  Judge  Peck,  judge  of  the  United  States  Dis- 
trict Court  for  the  district  of  Missouri;  and,  though  the  judge  was  acquitted 
by  the  Senate,  the  Congress  immediately  testified  its  disapproval  of  his  action, 
and  put  its  repetition  out  of  the  power  of  the  United  States  judges  in  the  fu- 
ture, by  the  passage  of  the  act  of  March  2,  1831,  entitled  'An  act  declaratory  of 
the  law  concerning  contempts  of  court,'  now  part  of  §  725  of  the  revised  stat- 
utes of  the  United  States.     This  act  applies  to  all  courts  of  the  United  States 


1416  REMINGTON    ON   BANKRUPTCY.  §   233.1 

which  derive  their  existence  and  powers  from  acts  of  Congress,  whether  created 
before  or  after  its  passage.  It  defines  and  limits  the  powers  of  the  courts  of 
the  United  States  to  punish  for  contempt.  Since  the  passage  of  this  act  the 
power  of  these  courts  in  the  punishment  of  contempts  can  only  be  exercised  (1) 
to  insure  order  and  decorum  in  their  presence;  (2)  to  secure  faithfulness  on 
the  part  of  their  officers  in  their  official  transactions;  and  (3)  to  enforce 
obedience  to  their  lawful  orders,  judgments,  and  processes.  Formerly  the  only 
protection  the  citizens  had  against  the  unjust,  oppressive  or  illegal  exercise  of 
this  power  was  found  (in  the  language  of  Judge  Brewer  In  re  Pryor,  18  Kan. 
72,  26  Am.  Rep.  747),  'in  the  publicity  of  all  judicial  proceedings^  and  the  appeal 
which  may  be  made  to  the  Legislature  for  proceedings  against  any  judge  who 
proves  himself  unworthy  of  the  power  intrusted  to  him.'  The  case  of  Judge 
Peck  is  not  the  only  instance  in  which  redress  was  sought  against  the  unwar- 
ranted exercise  of  this  power  by  the  impeachment  of  the  judge.  In  1807,  arti- 
cles of  impeachment  were  preferred  against  the  judges  of  the  Supreme  Court 
of  Pennsylvania  for  an  abusive  exercise  of  this  power,  and,  while  they  were 
acquitted,  their  trial  led  to  the  passage  of  the  act  of  the  Assembly  of  that  State 
of  1809,  limiting  and  restricting  the  power  of  the  court  to  punish  for  contempt; 
and  impeachment  of  judges  for  similar  acts  and  like  legislation  has  taken  place 
in  other  States.  Indeed,  in  this  country  the  power  of  the  courts  to  punish  for 
contempt  has  always  been  looked  on  with  jealousy,  and  a  very  strong  disposi- 
tion shown  to  restrict  it.  It  has  been  declared  to  be  'arbitrary  in  its  nature' 
(Batchelder  v.  Moore,  42  Cal.  412) ;  to  be  an  exception  to  the  provisions  of  the 
Constitution  of  the  United  States,  and  not  to  be  extended  in  the  least  degree 
beyond  the  limits  imposed  by  statute.  Rap.  Contempt,  §  11;  Rutherford  v. 
Holmes,  5  Hun  317;  Bergh's  Case,  16  Abb.  Pr.  (N.  S.)  266;  People  v.  Jacobs, 
66  N.  Y.  8;  Ex  parte  Robinson,  19  Wall.  505,  22  L.  Ed.  205.  And  in  a  note  in 
1  Kent.  Com.  330,  note  'b,'  it  is  said  'that  the  power  of  the  courts  to  punish 
summarily  for  contempts  has  lately  been  much  restricted  in  England.'  Not 
only  has  the  power  to  punish  for  contempts  been  very  much  restricted,  but  in 
many  jurisdictions  the  right  of  appeal  and  review  of  such  proceedings  has  been 
allowed.  And  the  right  of  review  of  the  proceedings  in  the  case  of  an  alleged 
constructive  contempt,  like  the  one  in  the  case  at  bar,  is  given  by  the  Bank- 
rupt Act." 

Ex  parte  O'Neal,  11  A.  B.  R.  198,  125  Fed.  967  (D.  C.  Fla.) :  "Unquestionably 
the  District  Court  had  jurisdiction  summarily  to  try  and  determine  these  ques- 
tions, and,  having  such  jurisdiction,  said  court  was  fully  authorized  to  hear 
and  decide  and  adjudge  upon  the  merits." 

§  2331.  "Willfully  Evasive"  or  "Flagrantly  False"  Testimony  in 
Face  of  Court,  Contempt. — Willfully  evasive  or  flagrantly  false  testi- 
mony given  by  a  witness  in  the  face  of  the  court  is  a  contempt,^  and  is 
punishable  as  a  contempt,  although  also  punishable  as  a  crime.^ 


2.  In  re  Fellerman,  17  A.  B.  R.  789,  149  Fed.  244  (D.  C.  N.  Y.). 

It  has  been  held,  competent  for  the  bankruptcy  court  to  compel  the  peti- 
tioning creditors  on  dismissal  of  the  petition  for  insufficient  proof,  to  pay  the 
costs  and  expenses  of  a  receiver  appointed  therein  by  order  and  punishment  for 
contempt  for  failure  to  obey  the  order.  In  re  Lavoc,  15  A.  B.  R.  293,  142  Fed. 
"960  (C.  C.  A.  N.  Y.).     But  this  seems  to  be  a  far  stretch  of  the  law. 

3.  In  re  Fellerman,  17  A.  B.  R.  789,  149  Fed.  244  (D.  C.  N.  Y.). 


^  2334  CONTEMPTS.  1417 

§  2332.  Contempt  Not  in  Presence  of  Court. — The  act.  in  order  to 
constitute  contempt,  need  not  be  committed  in  the  presence  of  the  court, 
nor  when  the  court  is  in  session. 

Ex  parte  O'Neal,  11  A.  B.  R.  196,  125  Fed.  967  (D.  C.  Fla.) :  "The  charge 
of  contempt  against  the  relator  is  based  upon  the  fact  that  he  unlawfully  as- 
saulted and  resisted  an  officer  of  the  District  Court  in  the  execution  of  orders 
of  the  court,  and  in  the  performance  of  the  duties  of  his  office  under  such 
orders;  and  in  that  respect  it  would  seem  to  be  immaterial  whether  at  the  time 
of  the  resistance  the  court  was  actually  in  session,  with  a  judge  present  in  the 
district,  or  whether  the  place  of  resistance  was  40  or  400  feet  from  the  actual 
place  where  the  court  was  usually  held,  so  long  as  it  was  not  in  the  actual  pres- 
ence of  the  court,  nor  so  near  thereto  as  to  embarrass  the  administration  of 
justice." 

§  2333.  Advice  of  Counsel. — Advice  of  counsel  may  palHate,  but  it 
does  not  excuse,  contempt."* 

In  re  Home  Discount  Co.,  17  A.  B.  R.  170,  147  Fed.  538  (D.  C.  Ala.):  "This 
is  not  one  of  the  cases  in  which  reliance  upon  the  advice  of  counsel  can  shield 
a  party  from  the  consequences  of  a  deliberate  disobedience.  Here  there  was 
a  purpose  not  to  perform  an  act  which  the  order  exacted — an  order  so  precise 
and  definite  that  no  man  could  read  it  and  fail  to  know  what  it  demanded. 
Respondent  does  not  claim  that  it  misconstrued  the  order,  or  that  it  did  not 
intend  to  disobey  it.  On  the  contrary,  it  admits  that  it  knew  precisely  what  the 
order  required  and  that  it  did  not  intend  to  obey  it.  It  concluded  to  disobey 
on  the  advice  of  counsel,  on  the  theory  that  the  referee  had  no  authority  to 
make  the  order  and  that  the  court  had  no  power  to  compel  obedience  to  it 
l)efore  the  court  itself  first  passed  on  the  petition  for  review.  Having  ability 
to  comply,  and  having  intentionally  and  designedly  disobeyed  the  order,  real- 
izing fully  what  it  enjoined,  the  company  cannot  be  heard  to  say  that  it  did 
not  intend  disobedience  to  the  process  of  the  court.  The  intent  is  shown  by 
the  act,  which  speaks  for  itself.  Agnew  v.  United  States,  165  U.  S.  50.  This 
is  not  a  case  where  the  disobedient  party  did  a  forbidden  act,  honestly,  though 
mistakenly,  believing  that  its  conduct  was  not  forbidden  by  the  order,  and 
therefore,  although  it  knowingly  did  the  forbidden  thing,  yet  had  not  any  actual 
intent  to  disobey  the  command.  Under  such  circumstances  there  is  no  moral 
intent  to  defy  the  order,  though  there  is  disobedience  to  its  command." 

§  2334.  Contempt  before  Referee,  What  Constitutes,  Defined  by 
Statute. — What  constitutes  contempt  before  the  referee  appears  to  be 
defined  by  the  statute,  which  provides,  in  §  41   (a)  that: 

"A  person  shall  not,  in  proceedings  before  a  referee,  (1)  disobey  or  resist  any 
lawful  order,  process,  or  writ;^  (2)  misbehave  during  a  hearing  or  so  near  the 
place  thereof  as  to  obstruct  the  same;    (3)  neglect  to  produce,  after  having  been 

4.  U.  S.  V.  Goldstein,  13  A.  B.  R.  755,  132  Ped.  789   (D.  C.  Va.). 

5.  Instance  under  (1)  In  re  Geiser,  12  A.  B.  R.  208  (D.  C.  Mont.):  Denial 
l)y  constable  of  receipt  of  excess  of  proceeds  of  execution  sale  which  he  had 
turned  back  to  the  purchaser. 

As  to  contempts  of  bankrupts  for  failing  to  obey  orders  to  surrender  prop- 
erty, see  ante,  subject,  "Summary  Orders  on  Bankrupts  and  Others,"  §  1856, 
•et  seq. 


1418  REMINGTON    ON    BANKRUPTCY.  §   2337 

ordered  to  do  so,  any  pertinent  document;  or  (4)  refuse  to  appear  after  hav- 
ing been  subpoenaed,  or,  upon  appearing,  refuse  to  take  the  oath  as  a  witness, 
or,  after  having  taken  the  oath,  refuse  to  be  examined  according  to  law;  pro- 
vided, that  no  person  shall  be  required  to  attend  as  a  witness  before  a  referee 
at  a  place  outside  of  the  State  of  his  residence,  more  than  one  hundred  miles 
from  such  place  of  residence,  and  only  in  case  his  lawful  mileage  and  fee  for 
one  day's  attendance  shall  be  first  paid  or  tendered  to  him." 

§  2235.  Referee  Has  No  Power  to  Commit. — The  referee  has  no 
jurisdiction  to  punish  for  contempt.^ 

§  2336.  Referee  Simply  to  Certify  Facts  to  Judge. — The  referee 
certifies  the  facts  to  the  judge,  if  any  person  shall  have  committed  a  con- 
tempt before  him.''' 

In  re  Romine,  14  A.  B.  R.  785,  138  Fed.  837  (D.  C.  W.  Va.,  affirmed  sub  nom. 
Bk.  V.  Johnson,  16  A.  B.  R.  209,  143  Fed.  463):  "This  proposition  may  be  re- 
solved into  two  heads:  (a)  his  power  to  determine  as  to  whether  contempt 
exists;  (b)  his  method  of  procedure.  This  last  presents  no  difficulty;  in  fact  is 
well  settled.  In  a  case  where  a  referee  believes  a  witness  improperly  refuses 
to  testify  or  produce  written  testimony — in  other  words,  to  be  in  contempt  for 
any  reason — it  is  his  plain  duty  to  set  forth  the  contempt  upon  the  record, 
certifying  the  facts  to  the  district  judge,  who  will  then  deal  with  the  question 
as  if  the  contempt  had  originally  arisen  in  his  court." 

I§  2337.  Making  of  Certificate,  Judicial  Act,  Not  Ministerial 
Duty. — The  referee  is  to  judicially  determine  whether  or  not  a  contempt 
has  been  committed  before  certifying  the  culprit  to  the  judge,  and  is  not 
obliged  to  make  the  certificate  unless  in  his  opinion  a  contempt  has  been 
committed. 

In  re  Romine,  14  A.  B.  R.  790,  138  Fed.  837  (D.  C.  W.  Va.) :  "What  shall 
a  referee  do  in  a  case  like  this  where  his  conscience  and  judgment  tell  him  that 
the  evidence  is  improper,  immaterial  and  not  pertinent,  and  he  has  so  ruled? 
Must  he  nevertheless  stop,  and  certify  that  a  contempt  has  been  committed, 
which  he  does  not  believe  to  be  true,  simply  because  the  parties  demand  it? 
When  the  right  of  protection  guaranteed  by  all  courts  to  a  witness  is  taken  into 
consideration,  I  am  clearly  of  the  opinion  that  the  referee  has  a  right  to  and 
must  determine  judicially  in  the  -first  place  whether  a  contempt  has  been  com- 
mitted, and,  if  he  thinks  not,  to  refuse,  no  matter  how  strongly  urged,  to_  cer- 
tify the  matter  for  contempt  proceedings  to  the  judge." 

6.  Bankr.  Act,  §  38  (a)  :  "Referees  respectively  are  hereby  invested,  subject 
always  to  a  review  by  ths  judge,  within  the  limits  of  their  districts  as  es- 
tablished from  time  to  time  with  jurisdiction,  to  *  *  *  (2)  exercise  the 
powers  vested  in  courts  of  bankruptcy  for  the  administering  of  oaths  to  and  the 
examination  of  persons  as  witnesses  and  for  requiring  the  production  of  docu- 
ments in  proceedings  before  them," except  the  power  of  commitment." 

Bank  v.  Johnson,  16  A.  B.  R.  211,  143  Fed.  463  (C.  C.  A.  W.  Va.,  affirming 
In  re  Romine,  14  A.  B.  R.  785,  138  Fed.  837);  In  re  Miller,  5  A.  B.  R.  185,  105 
Fed.  57  (D.  C.  Iowa). 

7.  Bankr.  Act,  §  41  (b).  In  re  Miller,  5  A.  B.  R.  184,  105  Fed.  57  (D.  C. 
Iowa);  Bank  v.  Johnson,  16  A.  B.  R.  210,  143  Fed.  463  (C.  C.  A.  W.  Va.,  affirm- 
ing In  re  Romine,  14  A.  B.  R.  785,  138  Fed.  837,  D.  C.  W.  Va.). 


§  2344  CONTEMPTS.  14i9 

§  2338.    Judge  to  Hear  and  Punish,  if  Contempt  Committed.— 

The  judge  shall  thereupon,  in  a  summary  manner,  hear  the  evidence  as 
to  the  acts  complained  of,  and,  if  it  is  such  as  to  warrant  him  in  so  doing, 
punish  such  person  in  the  same  manner  and  to  the  same  extent  as  for  a 
contempt  committed  before  the  court  of  bankruptcy,  or  commit  such  per- 
son upon  the  same  conditions  as  if  the  doing  of  the  forbidden  act  had 
occurred  with  reference  to  the  process  of,  or  in  the  presence  of,  the  court. ^ 

§  2339.  Power  to  Commit,  Cautiously  Exercised. — The  power  to 
punish  for  contempt  is  cautiously  exercised.^ 

In  re  McCormick,  3  A.  B.  R.  340,  97  Fed.  566  (D.  C.  N.  Y.) :  "As  such  pun- 
ishment may  inv'olve  imprisonment,  however,  this  power  should  be  cautiously- 
exercised,  and  in  cases  only  where  wilful  disobedience  by  the  bankrupt  is  proved 
beyond  reasonable  doubt,  as  in  a  criminal  case." 

§  2340.  Evidence  to  Be  beyond  Reasonable  Doubt. — The  evidence 
should  be  beyond  reasonable  doubt.  ^° 

§  2341.  No  Punishment  for  Failure  to  Comply  with  Order  until 
Opportunity  Given  to  Show  Inability. — A  bankrupt  should,  not  be 
punished  for  contempt  given  because  of  his  failure  to  comply  with  an  order 
of  the  court  before  he  is  given  an  opportunity  to  prove  his  inability  to  do 
so.ii 

§  2342.  Review  of  Refusal  to  Certify. — Any  party  aggrieved  by  the 
referee's  refusal  to  certify  a  person  for  contempt  has  his  remedy  by  peti- 
tion for  review,  as  in  other  cases. ^^ 

§  2343.  Not  Reviewable  by  Habeas  Corpus. — The  action  of  the  dis- 
trict court  in  contempt  matters  is  not  reviewable  by  the  Circuit  Court  on 
habeas  corpus. ^-^ 

§  2344.    Order  of  District  Judge  Not  Reversed  Except  for  Clear 

Error. — On  review  by  the  circuit  court  of  appeals  the  district  judge's 
order  will  not  be  reversed,  except  upon  clear  proof  of  error. ^■^ 

8.  Bankr.  Act,  §  41  (b).  Where  the  certificate  of  the  referee  is  accompanied 
with  a  verbatim  transcript  of  the  testimony  a  demurrer  to  the  rule  will  be 
overruled.     U.  S.  v.  Goldstein,  12  A.  B.  R.  755,  132  Fed.  789  (D.  C.  Va.). 

9.  In  re  Mayer,  3  A.  B.  R.  533,  98  Fed.  839  (D  C.  Wis.);  In  re  Romine,  14 
A.   B.  R.  790,  138   Fed.  837   (D.  C.  Wis.). 

But  compare.  In  re  Lavoc,  15  A.  B.  R.  293  (C.  C.  A.  N.  Y.),  where  the  cir- 
cuit court  of  appeals  upheld  the  right  of  the  lower  court  to  compel  by  punish- 
ment for  contempt  the  payment  of  costs  by  the  petitioning  creditors  upon  dis- 
missal of  the  petition  for  failure  to  prove  same. 

10.  In  re  Romine,  14  A.  B.  R.  790,  138  Fed.  837  (D.  C.  W.  Va.) ;  In  re  Mc- 
Cormick, 3  A.  B.  R.  340,  97  Fed.  566  (D.  C.  N.  Y.),  quoted  at  §  2339. 

11.  In  re  Hausman,  10  A.  B.  R.  64,  121  Fed.  984  (C.  C.  A.  N.  Y.). 

12.  Obiter.  In  re  Romine,  14  A.  B.  R.  791,  138  Fed.  837  (D.  C.  W.  Va.). 

13.  Ex  parte  O'Neal,  11  A.  B.   R.  196,  125  Fed.  967   (D.   C.   Fla.). 

14.  In  re  Lew  &  Co.,  15  A.  B.  R.  166  (C.  C.  A.). 


PART  IX. 
Composition  with  Creditors. 


CHAPTER  XLV. 
Nature  and  Efficct  of  Composition. 
Synopsis  of  Chapter. 

§  2345.  Composition  Simply  Different  Method  of  Administrating  Estate  and 
Realizing   on   Same    for   Creditors. 

§  2346.  Efifect  of  Composition,  in  General. 

§  2347.  Composition   Restores    Estate   to   Debtor. 

§  2348.  Pendency  of  Petition  for  Confirmation  Suspends  Sale  and  Distribu- 
tion   of    Assets. 

§  2349.  Confirmation  of  Composition  in  Effect  a  Discharge. 

§  2350.  Release  of  Debts  Is  by  Operation  of  Law  and  Not  by  Consent. 

§  2351.  Claims    "Provable,"    Though    Not    Actually    "Proved,"    Discharged. 

§  2352.  But   Must   Be    "Duly   Scheduled." 

§  2353.  "Duly  Scheduled" — As  to  Time — Different  in  Composition  from  What  It 
Is  in  Discharge. 

§  2354.  Right  to   Composition  and   Effect   of   Composition,   Distinct. 

§  2345.  Composition  Simply  Different  Method  of  Administering 
Estate  and  Realizing  on  Same  for  Creditors. — We  have  thus  far 
been  considering  the  usual  course  of  administration  of  a  bankrupt  estate. 
We  have  traced  it  from  the  beginning  through  its  different  steps,  ending 
with  the  distribution  of  the  assets  and  the  winding  up  of  the  case.  Some- 
times, however,  the  bankruptcy  case  does  not  take  this  course.  It  is 
possible  for  a  bankrupt  to  lift  the  estate  out  of  the  bankruptcy  cotirt  and 
to  resume  the  charge  and  ownership  of  it,  freed  from  the  claims  of  his 
creditors.  This  is  accomplished  by  the  bankrupt  making  a  "composition" 
with  his  creditors. 

Compare,  remarks,  U.  S.  ex  rel.  Adler  v.  Hammond,  4  A.  B.  R.  738  (C.  C.  A. 
Tenn.) :  "The  law  prescribes  that  after  he  has  been  adjudged  a  bankrupt,  has 
been  examined,  and  has  filed  a  schedule  of  his  property  and  a  list  of  his  cred- 
itors, two  methods  of  procedure  are  open,  each  of  which  is  designed  to  ac- 
complish the  ends  intended  by  the  act.  One  of  these  is  by  the  tendering  of  a  cer- 
tain sum  to  his  creditors  by  the  debtor  in  lieu  of  the  amount  which  might 
ultimately  be  gatheVed  from  the  assets  and  their  acceptance  thereof.  Obviously 
this  amount  is  contemplated  as  a  sum  which  will  be  the  equivalent  of  the  as- 
sets which  would  be  obtained  by  the  other  and  more  tedious  course,  for  the 
creditors  have  the  right  to  reject  it.  If  they  accept  it,  their  object  is  satisfied, 
and  it  only  remains  to  execute  the  purpose  toward  the  bankrupt.  This  is  done  by 
the  confirmation  of  the  composition  by  the  court,  which  is  required  to  see  that 
the  nonassenting  creditors  are  not  wronged  thereby;  and  the  law  declares 
that  the  confirmation  shall  have  the  effect  to  release  or  discharge  the  bankrupt. 
If  this  course  is  not  pursued,  or  proves  abortive,  the  proceeding  advances 
by  the  pther  method.  The  assets  in  specie  are  turned  over  to  the  trustee,  who 
collects  and  converts  them  into  money,  and  that  is  distributed  to  the  creditors, 
who  then  get  that  which  they  would  have  reached  by  the  former  course,  more 
or  less,  as  it  may  turn  out.     Then,  because  the  record  does  not  show  any  formal 


1424  REMIXGTOX    ox    BAXKRUPTCY.  §    2347 

declaration  of  the  right  of  the  bankrupt  to  be  released,  it  is  provided  that  he 
may  obtain  an  order  declaring  that  right.  It  is  to  be  noted  that  the  court  is 
charged  with  the  same  duty  whether  it  is  sitting  to  determine  whether  a  compo- 
sition should  be  confirmed  as  where  it  is  considering  the  propriety  of  a  formal 
discharge,  namely,  to  ascertain  whether  the  conditions  which  the  law  prescribes 
have  been  complied  with.  This  general  survey  may  conduce  somewhat  to  a 
clearer  apprehension  of  the  significance  and  essential  character  of  the  pro- 
visions with  which  we  have  to  deal.  The  act  provides  an  appeal  from  a  judg- 
ment which  grants  or  denies  a  discharge." 

In  re  Fox,  6  A.  B.  R.  529  (Ref.  Ohio,  affirmed  by  D.  C.) :  "The  true  theory 
is  that  the  confirmation  of  a  composition,  whilst  operating  on  the  one  hand  to 
discharge  the  bankrupts  from  their  obligations  and  to  revest  them  with  the  title 
to  the  estate,  operates  on  the  other  hand  to  substitute  the  funds  on  deposit  in 
the  place  of  the  estate,  the  only  change  being  that  the  substituted  fund  is  there- 
upon to  be  distributed  as  the  judge  may  specially  direct  rather  than  in  accord- 
ance with  the  usual  procedure  in  the  disbursement  of  the  dividends." 

Composition  is  treated,  even  in  the  Act,  as  in  some  respects  outside  of 
bankruptcy.^ 

In  re  Lane,  11  A.   B.   R.  137,  125   Fed.  772    (D.   C.   Mass.):     "Section   12    (e) 

*  *  *  provides,  '*  *  *  whenever  a  composition  is  not  confirmed  the 
estate  shall  be  administered  in  bankruptcy  as  herein  provided.'  Composition 
is  thus  treated,  even  in  the  act,  as  in  some  respects  outside  of  bankruptcy." 

This  Statutory  composition  is  quite  different  from  a  settlement  and  dis- 
rpissal  of  the  proceedings. 

§  2346.  Effect  of  Composition,  in  General. — A  composition  re- 
stores the  estate  to  the  bankrupt,  frees  him  from  all  his  debts  provable  and 
dischargeable  in  bankruptcy,  and  -distributes  among  his  creditors  the 
amount  the  bankrupt  is  required  thereby  to  pay  for  the  ransom  of  his 
estate. 

§  2347.  Composition  Restores  Estate  to  Debtor. — The  composi- 
tion restores  the  estate  to  the  debtor  and  revests  in  him  the  title  thereto. ^ 

Stone  V.  Jenkins,  4  A.  B.  R.  568,  176  Mass.  544:  "The  only  question  which 
has  been  argued  before  us  is  the  right  of  the  plaintiff  to  maintain  the  action 
after  he  was   discharged  as  trustee   and  the  estate  was   closed  up  and  settled. 

*  *  *  When  the  right  of  action  accrued,  ^lorris  had  been  adjudged  bankrupt, 
and  upon  the  appointment  of  the  plaintiff  as  trustee  the  right  of  action  vested 

1.  Bankr.  Act,  §  12  (e) :  "Upon  the  confirmation  of  a  composition,  the  con- 
sideration shall  be  distributed  as  the  judge  shall  direct,  and  the  case  dismissed. 
Whenever  a  composition  is  not  confirmed,  the  estate  shall  be  administered  in 
bankruptcy  as  herein  provided." 

2.  Bankr.  Act,  §  70  (f ) :  "Upon  the  confirmation  of  a  composition  offered 
by  a  bankrupt,  the  title  to  his  property  shall  thereupon  revest  in  him."  Im- 
pliedly and  obiter.  In  re  Becher,  15  A.  B.  R.  231  (D.  C.  Pa.). 

Bankr.  Act,  §  21  (g) :  "A  certified  copy  of  an  order  confirming  a  c'omposi- 
tion  shall  constitute  evidence  of  the  revesting  of  the  title  of  his  property  in  the 
bankrupt,  and  if  recorded  shall  impart  the  same  notice  that  a  deed  from  the 
trustee  to  the  bankrupt  if  recorded  would  impart." 


§  2348  NATURE  AND  IJFF^ECT  OF  COMPOSITION.  1425 

in  liini,  and  suit  was  properly  brought  in  his  own  name.  When  the  offer  of 
composition  was  confirmed,  and  the  order  made  discharging  the  trustee,  and 
closing  up  the  estate,  the  property  in  the  trustee's  hands,  including  choses  in 
action  belonging  to  the  bankrupt  estate,  vested,  by  force  of  the  statute,  in 
Morris.     Bankr.  Act,  1898,  §  70." 

In  re  Rider,  3  A.  B,  R.  179,  96  Fed.  808  (D.  C.  N.  Y.)  :  "The  effect  of  a  com- 
position is  to  supersede  the  bankruptcy  proceedings  and  reinvest  the  bankrupt 
with  all  his  property  free  from  the  claims  of  creditors." 

Suits  begun  by  the  trustee,  which  the  bankrupt  might  have  instituted 
had  there  been  no  bankruptcy,  are  not  abated  by  the  confirmation  of  the 
composition,  but  the  title  to  the  right  of  action  revests  in  the  bankrupt.-^ 

Stone,  as  Trustee,  v.  Jenkins,  4  A.  B.  R.  568,  176  Mass.  544,  57  N.  E.  1001 
(^lass.  Sup.  Jud.  Court):  "We  have,  therefore,  a  case  in  which  the  right  of 
action  was  in  the  trustee  when  the  suit  was  begun,  but  has  become  vested  dur- 
ing the  pendency  of  the  action  in  the  bankrupt.  In  such  a  case  it  would  seem 
to  follow,  either  that  the  trustee  should  be  allowed,  with  the  consent  of  the 
bankrupt,  to  prosecute  the  action  for  his  benefit,  or  the  bankrupt  should  be  al- 
lowed to  come  in  and  prosecute  it  in  the  name  of  the  trustee  on  such  terms  as 
the  court  might  deem  reasonable;  or  the  suit  should  be  amended  so  that  the 
action  should  proceed  thenceforward  in  the  bankrupt's  name.  If  neither  one 
of  these  things  was  done,  there  would  seem  to  be  no  good  reason  why  a  dis- 
continuance should  not  be  ordered.  Cutts  v.  Parsons,  2  Mass.  440.  But  it  would 
serve  no  useful  purpose  to  compel  the  plaintiff  to  discontinue,  and  to  oblige 
the  bankrupt  to  bring  an  action  in  his  own  name,  and  such  a  rule  might  enable 
the  defendant,  under  some  circumstances,  though  not,  perhaps,  in  this  case,  to 
interpose  as  a  defense  the  statute  of  limitations,  or  some  technical  matter 
which  he  could  not  otherwise  have  availed  of.  In  Mayhew  v.  Pentecost,  129 
Mass.  332,  it  was  held  that  an  action  to  recover  a  debt  due  before  his  bank- 
ruptcy might  be  brought  by  the  bankrupt  after  the  bankruptcy,  with  the  con- 
sent and  for  the  benefit  of  the  assignee  in  bankruptcy.  E  converso,  we  do  not 
see  why  an  action  duly  brought  by  an  assignee  or  trustee  in  bankruptcy  may 
not  be  maintained  in  his  name,  with  his  consent,  by  the  bankrupt,  for  his  benefit, 
after  the  cause  of  action  has  become  vested  in  him,  or  may  not  be  so  maintained 
by  the  assignee  or  trustee  with  the  consent  of  the  bankrupt." 

§  2348.  Pendency  of  Petition  for  Confirmation  Suspends  Sale 
and  Distribution  of  Assets. — The  pendency  of  the  petition  for  confir- 
mation of  a  composition  undoubtedly  suspends  all  proceedings  for  the 
sale  or  distribution  of  the  assets,  since  the  very  object  of  a  composition  is 
to  restore  the  estate  to  its  original  owner. 

However,  it  has  been  held,  in  one  case,  that  if  the  confirmation  proceed- 
ings are  unreasonably  delayed,  or  the  bankrupt  is  failing  to  make  the  re- 
quisite deposit,  it  may  not  be  improper  to  order  sale  and  distribution  of 
the  assets.^  Nevertheless,  the  better  practice  would  be  first  to  dismiss  the 
petition  for  confirmation  of  the  composition.     If  the  neglect  would  not 

3.  Obiter,  In  re  Becker  Bros.,  15  A.  B.  R.  231  (D.  C.  Pa.). 

4.  In  re  Fisher  &  Co.,  14  A.  B.  R.  366,  135  Fed.  223  (D.  C.  N.  J.). 

2  Rem  B— 15 


1426  REMINGTON    ON   BANKRUPTCY.  §   2349 

warrant  a  dismissal  of  the  petition  for  want  of  prosecution,  it  would  not 
warrant  a  disregard  of  it. 

And  the  court  at  all  times  would  have  jurisdiction  to  determine  the 
ownership  of  property  in  its  custody  and  claimed  adversely.^ 

§  2349.    Confirmation  of  Composition  in  Effect  a  Discharge. — 

The  confirmation  of  a  composition  is  in  effect  a  discharge.*^ 

In  re  Friend,  13  A.  B.  R.  597,  134  Fed.  778  (C.  C.  A.  Ills.):  "By  virtue  of  § 
14  (c)  a,  *  *  *  a  judgment  confirming  a  composition  is  a  judgment  granting 
a  discharge." 

U.  S.  ex  rel  Adler  v.  Hammond,  4  A.  B.  R.  736,  104  Fed.  862  (C.  C.  A.  Tenn.) : 
"The  one  'discharge'  is  the  equivalent  of  the  other  for  the  purposes  of  the 
act,  and  both  are  covered  by  the  same  section  of  the  act  (14),  which  relates 
solely  to  that  subject.  Moreover,  it  is  to  be  observed  that  in  both  methods,  the 
procedure  is  under  the  control  of  the  judge.  In  the  case  of  a  composition,  the 
nonassenting  creditors  are  given  the  opportunity  to  contest  the  confirmation 
which  is  to  operate  as  a  discharge.  It  is  against  that  consequence  that  the  con- 
test is  directed.  It  is  made  because  the  nonassenting  creditors  are  not  satisfied 
that  their  claims  shall  be  discharged  by  the  payment  of  the  amount  tendered. 
Questions  as  important  perhaps  as  any  that  may  occur  in  bankruptcy  proceed- 
ings may  arise  upon  the  hearing.  If  the  composition  is  confirmed,  the  contest- 
ing creditors  are  cut  off  from  any  further  consideration  of  the  fact  unless  they 
can  appeal.  And  so  of  the  bankrupt;  whichever  way  the  decision  goes,  it  is 
the  end  of  that  endeavor  of  the  debtor  and  the  creditors  to  close  the  matter." 

Glover  Grocery  Co.  v.  Dome,  8  A.  B.  R.  702,  116  Ga.  216:  "Under  §§  12  and 
14  of  the  Bankrupt  Act  of  1898,  the  confirmation  of  a  composition  proposed 
by  a  bankrupt  to  his  creditors,  followed  by  a  dismissal  of  the  case,  has  the  efifect 
of  discharging  him  from  all  ordinary  claims  provable  in  bankruptcy,  though  the 
holders  thereof  did  not  actually  prove  the  same,  and  consequently  did  not  par- 
ticipate with  the  other  creditors  in  taking  action  upon  the  composition  when 
ofifered." 

Ross  V.  Saunders,  5  A.  B.  R.  350,  105  Fed.  915  (C.  C.  A.  Mass.):  "It  is  true 
that  under  the  present  act  the  action  on  the  composition,  if  confirmed,  operates 
to  discharge  the  bankrupt  from  all  his  debts  except  those  otherwise  specified; 
and  in  this  particular  the  statute  is  unlike  the  earlier  ones.  Therefore  it  may 
well  be  said  that  now  the  confirming  or  the  refusing  to  confirm  a  composition 
constitutes  a  'judgment  granting  or  denying  a  discharge,'  as  the  case  may  be, 
and   that  either   comes  within   the   general   letter   of  the   provision   for   appeals." 

'And  the  confirmation  or  refusal  of  confirmation  is  reviewable  only  in 
the  sam'e  manner  as  discharge."  Confirmation  of  a  composition,  indeed, 
may  be  proved  tmder  an  allegation  of  "discharge."^     And  in  code  states, 

5.  In  re  J.  C.  Winship  Co.,  9  A.  B.  R.  641,  120  Fed.  93   (C.  C.  A.  Ills.). 

6.  Bankr.  Act,  §  14  (c) :  "The  confirmation  of  a  composition  shall  discharge 
the  bankrupt  from  his  debts,  other  than  those  agreed  to  be  paid  by  the  terms 
of  the  composition  and  those  not  afifected  by  a  discharge." 

In  re  Rider,  3  A.  B.  R.  178,  90  Fed.  808  (D.  C.  N.  Y.);  Mandell  &  Co.  v. 
Levy,  14  A.  B.  R.  549  (N.  Y.  Sup.  Ct.  App.) ;  In  re  Eisenberg,  16  A.  B.  R.  777 
(D.  C.  N.  Y.);  [1867]  In  re  Becket,  Fed.  Cases  No.  1,210;  [1867]  In  re  Merri- 
man,  Fed.  Cases  No.  9,479,  18  N.  B.  Reg.  411;  Broadway  Trust  Co.  v.  Man- 
heim,  14  A.  B.  R.  122  (Sup.  Ct.  N.  Y.) ;  Wilot  v.  Mudge,  103  U.  S.  217. 

7.  In  re  Friend,  13  A.  B.  R.  597,  134  Fed.  778  (C.  C.  A.  Ills.). 

8.  Mandell  &  Co.  v.  Levy,  14  A.  B.  R.  549  (N.  Y.  Sup.  Ct.  App.);  Broadway 
Trust  Co.  v.  Manheim,  14  A.  B.  R.  122  (Sup.  Ct.  N.  Y.). 


§    2353  NATURE  AND  EFFECT  OF  COMPOSITION,  1427 

where  jurisdiction  to  render  judgment  is  sufficiently  pleaded  by  pleading 
the  judgment  to  have  been  "duly"  made,  it  is  sufficient  to  plead  that  the 
discharge  by  way  of  composition  was  "duly"  made.  The  order  of  con- 
firmation is  sufficiently  proved  by  a  certified  copy  thereof.^ 

§  2350.  Release  of  Debts  Is  by  Operation  of  Law  and  Not  by 
Consent. — The  release  effected  by  a  composition  is  a  release  by  operation 
of  law  and  not  by  mutual  consent. 

In  re  Rider,  3  A.  B.  R.  178,  96  Fed.  808  (D.  C.  N.  Y.) :  "A  law  which  compels 
a  creditor,  against  his  will,  to  accept  in  discharge  of  his  debt  just  what  the 
debtor  sees  fit  to  offer,  should  be  strictly  construed." 

The  idea  of  compositions  with  creditors  is  familiar.  In  its  ordinary 
form  it  rests  upon  mutual  consent  and  valuable  consideration.  But  a  com- 
position in  bankruptcy  is  different.  A  composition  in  bankruptcy  restores 
the  estate  to  the  debtor  and  frees  him  from  his  debts,  to  be  sure,  but  not 
by  virtue  of  mutual  consent  nor  contract,  but  by  operation  of  law.  This 
distinction  is  of  great  importance  in  practice  when  it  comes  to  considering 
the  obligations  of  guarantors  and  sureties  of  debts  owed  by  bankrupts. 
Were  the  composition  a  voluntary  release,  it  might  release  the  guarantor 
or  surety;  being  by  operation  of  law,  however,  it  would  not  have  that  ef- 
fect, even  if  the  statute  did  not  provide  in  §  16  that 

"The  liability  of  a  person  who  is  a  codebtor  with,  or  guarantor  or  in  any  man- 
ner a  surety  for,  a  bankrupt  shall  not  be  altered  by  the  discharge  of  such  bank- 
rupt." 

§  2351.  Claims  "Provable,"  Though  Not  ActuaUy  "Proved,"  Dis- 
charged.— Claims  that  are  provable,  although  not  actually  proved,  are 
discharged  by  the  composition,  if  duly  scheduled. ^° 

§  2352.  But  Must  Be  "Duly  Scheduled. — But  where  claims  are 
not  "duly  scheduled"  they  are  not  discharged,^ ^  unless  the  creditor  had 
actual  notice    of  the  pendency  of  the  bankruptcy  proceedings    in  time. 

§  2353.  "Duly  Scheduled"— As  to  Time— Different  in  Composi- 
tion from  What  It  Is  in  Discharge. — "Due"  scheduling  is  dift'erent  in 
compositiori  matters  from  what  it  is  in  discharge  matters,  so  far  as  time 
and  notice  are  concerned ;  for  a  claim  may  be  "duly  scheduled,"  so  far 
as  discharge  is  concerned,  if  the  creditor  gets  notice  in  time  to 
prove  his  claim  to  participate  in  dividends  and  oppose  discharge ;  but 
not  so  in  compositions,  for  in  compositions  an  additional  right  exists  to 
participate  in  the  original  acceptance  or  rejection  of  the  proposed  compo- 
sition. 

9.  Mandell  &  Co.  v.  Levy,  14  A.  B.  R.  549  (N.  Y.  Sup.  Ct.  App.). 

10.  Glover  Grocery  Co.  v.  Dorn,  8  A.  B.  R.  702,  116  Ga.  216. 

11.  Broadway  Trust  Co.  v.  Manheim,  14  A.  B.  R.  122  (Sup.  Ct.  N.  Y.). 


1428  EEMIXGTON    ON    BAXKRUPTCY.  §    2354 

Broadwaj^  Trust  Co.  f.  Manheini,  14  A.  B.  R.  122  (Sup.  Ct.  N.  Y.) :  "In  the 
case  of  discharge  in  bankruptcy  as  distinguished  from  a  composition  it  might 
be  the  case  that  if  such  knowledge  were  acquired  in  time  to  enable  the  creditor 
to  prove  his  claim  and  have  it  allowed,  to  participate  in  the  dividends  of  the 
bankrupt  estate,  or  to  be  heard  in  opposition  to  the  application  for  discharge, 
it  would  be  sufficient.  Fider  i'.  Manheim,  81  X.  W.  2.  But  in  the  case  of  a  com- 
position agreement"  it  seems  to  me  a  dififerent  rule  should  apply.  I  think  the 
unscheduled  creditor  should  have  notice  or  actual  knowledge  of  the  bankruptcy 
proceeding  prior  to  the  time  when  the  application  for  the  confirmation  of  the 
composition  agreement  is  filed.  Before  such  application  can  be  filed,  the  pro- 
posed agreement  must  be  accepted  in  writing  by  a  majority  in  number  of  all 
creditors  whose  claims  have  been  allowed,  which  number  must  represent  a 
majority  in  amount  of  such  claims.  Bankruptcy  Act,  §  12.  In  this  case  the 
first  of  the  notes  sued  upon  matured  June  11,  1904,  and  the  second  July  11, 
1904,  and  plaintiff's  actual  knowledge  of  defendant's  bankruptcy  proceedings 
was  subsequent  to  the  latter  date.  But  the  defendant  was  adjudicated  a  bank- 
rupt on  April  11,  1904,  and  prior  to  ]\Iay  4,  1904,  he  had  obtained  the  consent 
of  a  majority  of  the  creditors  whose  claims  had  been  allowed  and  approved, 
and  on  that  day  he  filed  his  application  for  a  confirmation  of  the  composition 
agreement.  If  the  plaintiff  had  had  knowledge  or  notice  of  the  proceedings 
prior  to  that  time  it  might  have  proved  its  claim  and  withheld  its  consent 
from  the  proposed  composition  and  prevented  the  bankrupt  from  obtaining 
the  required  majority.  Since  the  proceeding  compels  dissenting  creditors  to 
accept  the  percentage  accepted  by  the  majority  and  deprives  them  of  their  rem- 
edies on  the  balance  thereafter,  this  section  of  the  Bankruptcy  Act  should  be 
strictly  construed.  Collier  on  Bankruptcy  (5th  Ed.),  214;  In  re  Monroe,  7  Am. 
B.  R.  706.  The  knowledge  of  the  plaintiff  came  too  late  to  enable  it  to  'have 
an  equal  opportunity  with  other  creditors'  in  participating  'in  the  administration 
of  the  affairs  of  the  estate.'  The  fault  was  the  fault  of  the  defendant  in  not 
properly  preparing  his  schedules  as  to  the  name  of  the  creditor,  or  in  failing 
to  amend  the  same  after  he  had  learned  who  the  real  owner  of  the  debt  was. 
I  think  the  order  of  the  bankruptcy  court  confirming  the  proposed  composition, 
so  far  as  the  plaintiff  is  cpncerned,  is  inoperative,  and  affords  no  defense  to  the 
action." 

§  2354.  Right  to  Composition  and  Effect  of  Composition,  Dis- 
tinct.— The  right  to  a  composition  and  the  effect  of  it  are  distinct  propo- 
:>itions.^- 

12.  In  re  Eisenberg,  16  A.  B.  R.  777  (D.  C.  N.  Y.).  Compare  similar  rules 
relative  to  discharge,  post,  §  2662,  et  seq. 


CHAPTER  XLVI. 
Procedure;  on  Composition. 
Synopsis  of  Chapter. 

DIVISION   1. 

§  2355.   Ofifer  of  Composition. 
"§  2356.   Statute    Strictly    Construed    and    All    Requirements    to    Be    Fulfilled. 

§  2357.   Irregular   Compositions   and   Settlements  in   Other  than   Statutory   Man- 
ner. 

§  2358.   Special  Meeting:  for  Presentation  of  Ofifer. 

§  2359.   Examination    of    Bankrupt    and    Filing    of    Schedules    Requisite    before 
Ofifer. 

§  2360.  Ofifer  to  Be  Accepted  in  Writing. 

§  2361.  Ofifer  to  Be  Accepted  by  Majority  in  Number  and  Amount  of  Allowed 
Claims. 

§  2362.  Creditors    Once   Accepting    May    Not    Withdraw,    Except   for    Fraud    or 
IMisrepresentation. 

DIVISION  2. 

§  2363.  Petition    for    Confirmation    of    Composition,    When    May    Be    Filed. 

§  2364.  Designation  of  Amount  and  Place  of  Deposit. 

§  2365.  Deposit  to  Be  Sufficient  to  Pay  All  Costs  and  Priority   Claipis  as  Well 
as   Consideration   to   Creditors. 

§  2366.  Must  Cover  All   Claims   Filed  and  All  Schedules. 

§  2367.  Whether   Must   Cover   Deficiency   of  Secured    Claims    Not   Yet    Filed. 

§  2368.  What    Costs   Provided   for   in   Composition. 

§  2369.  Whether    Consideration   Always    to    Be    in    Money. 

§  2370.   Form    of    Application    for    Confirmation    of    Composition. 

§  2371.  Ten  Days  Notice  by  Mail  to  Be  Given. 

DIVISION  3. 

§  2372.  Hearing  on  Petition  for  Confirmation  of  Composition. 

§  2373.   Only  Judge  to  Pass  on  Application. 

§  2374.  But    May    Refer   Issues    to    Referee    as    Special    Master. 

Division   1. 

The  Offer  oe  Composition. 

§  2355.  Ofifer  of  Composition. — The  first  step  in  the  procedure  is  for 
•the  bankrupt  to  offer  terms  of  composition  to  his  creditors.  The  statute 
provides  that  a  bankrupt  may  ofifer  terms  of  composition  to  his  creditors 
after,  but  not  before,  he  has  been  examined  in  open  court  or  at  a  meet- 
ing of  his  creditors,  and  has  filed  in  court  the  schedule  of  his  property 
and  list  of  his  creditors,  required  to  be  filed  by  bankrupts.^ 

1.    Bankr.  Act,  §  12   (a). 


1430  REMINGTON    ON   BANKRUPTCY.  §    2357 

§  2356.  Statute  Strictly  Construed  and  All  Requirements  to  Be 
Fulfilled. — This  entire  §  12  should  be  strictly  construed  and  all  its  re- 
quirements be  carefully  complied  with.^ 

In  re  Frear,  10  A.  B.  R.  199,  120  Fed.  978  (D.  C.  N.  Y.) :  "It  will  be  observed 
that  there  has  been  no  compliance  with  the  law.  The  parties  and  referee  have 
adopted  a  mode  of  composition  and  procedure  utterly  at  variance  with  the  law, 
and  now  ask  the  court  to  approve  and  confirm  it.  The  proceedings  adopted  and 
followed  is  not  sanctioned  by  the  law,  and  neither  the  court  nor  the  judge  has. 
power  to  confirm  it. 

"Promises  to  pay  money  or  merchandise  at  a  future  day  have  been 
substituted  for  money;  the  money,  etc.,  were  not  deposited  in  a  place  desig- 
nated by  the  judge,  or  subject  to  his  order;  the  ofifer  and  its  acceptance  were 
procured  in  violation  of  the  provisions  of  the  law;  and,  finally,  if  the  judge  or 
court  should  confirm  the  composition,  so  called,  it  would  be  impossible  to  com- 
ply with  subdivision  'e'  of  §  12,  which  says,  'Upon  the  confirmation  of  a  com- 
position the  consideration  shall  be  distributed  as  the  judge  shall  direct.'  The 
consideration  has  never  been  subject  to  the  order  of  the  judge,  and  has  been 
already  distributed,  so  far  as  paid  in,  pursuant  to  the  order  of  a  referee  who 
had  no  power  or  jurisdiction  in  the  premises  whatever,  and  whose  acts  were 
those  of  an  individual,  merely.  This  court  has  no  power  to  ratify  or  confirm 
such  a  proceeding,  and  cannot  put  its  seal  of  approval  thereon.  The  statute 
was  made  to  be  observed  and -complied  with,  and  only  when  there  has  been  a 
substantial  compliance  therewith  will  the  judge  or  court  approve  and  confirm 
the  proceedings.  These  matters  of  noncompliance  are  not  technical,  but  go 
to  the  very  pith  and  marrow  of  the  law  and  objects  to  be  attained.  If  this  pro- 
ceeding is  confirmed  or  approved,  the  court  or  judge  will  necessarily  be  com- 
pelled in  the  future  to  approve  any  manner  or  mode  of  composition  to  which 
creditors  may  not  object.  No  significance  can  be  attached  to  the  fact  that  no 
creditor  opposes  this  application.  It  is  not  probable  that  they  have  employed 
an  attorney  or  know  of  their  rights  in  the  matter.  But  silence  or  acquiescence 
on  the  part  of  the  creditors  and  their  attorneys  gives  no  excuse  for  the  judge 
or  court  to  violate  the  statute,  or  substitute  an  unauthorized  and  illegal  pro- 
ceeding for  the  one  provided  by  law.  Such  silence  confers  no  jurisdiction. 
Jurisdiction  to  confirm  this  so-called  composition  could  not  be  conferred  by  the 
express  consent  of  all  the  creditors.  The  bankrupt  is  not  aided  by  subdivision 
9  of  §  2  of  the  Act." 

And  where  the  parties  and  the  referee  have  adopted  a  mode  and  pro- 
cedure utterly  at  variance  with  the  law,  the  composition  is  not  to  be  con- 
firmed.^   . 

§  2357.  Irregular  Compositions  and  Settlements  in  Other  than 
Statutory  Manner. — Sometimes  bankrupts  attempt  to  settle  with  credit- 
ors and  get  back  their  assets  without  pursuing  the  statutory  method  pro-» 
vided  for  compositions.  There  seems  no  objection  to  such  settlements, 
so  far  as  the  law  is  concerned ;  but  they  are  full  of  risk  to  the  parties.    In 

2,  In  re  Rider,  3  A.  B.  R.  178,  96  Fed.  808  (D.  C.  N.  Y.),  quoted  ante,  §§ 
2350,  2351.  Compare,  analogously,  Bank  v.  DooHttle.  5  A.  B.  R.  741,  107  Fed. 
236    (C.   C.   A.   Tex.).      Compare    [1867]    In   re   Shields,    Fed.    Cas.   12,784. 

3.  In  re  Frear,  10  A.  B.  R.  199,  120  Fed.  978  (D.  C.  N.  Y.). 


§   2358  PROCEDURE  O?  COMPOSITION.  1431 

the  first  place,  care  must  be  taken  that  notice  goes  to  all  creditors  of  the 
proposed  dismissal,  else  creditors  not  notified  may  be  entitled,  perhaps,  to 
reinstatement  of  the  case.  In  the  second  place,  care  must  be  taken  to  get 
the  consent  of  all  creditors ;  for  such  a  settlement  is  dependent  upon  con- 
sent and  not  upon  the  statute,  and  those  not  consenting  will  not  likely  be 
bound. 

Thus,  unscheduled  creditors  without  notice  may  have  their  claims  liqui- 
dated and  passed  upon  despite  a  settlement  and  dismissal  of  the  bank- 
ruptcy proceedings.^ 

§  2358.  Special  Meeting  for  Presentation  of  Offer. — It  is  not,  per- 
haps, necessary  that  a  special  meeting  of  creditors  be  called  in  order  to 
have  the  presentation  of  the  oft'er  to  creditors  legal  f'  but  it  is  the  better 
practice  to  present  the  offer  at  a  special  meeting  called  for  that  express 
purpose.^ 

The  statute,  to  be  sure,  does  not  require  such  special  meeting,  but  the 
reason  of  the  matter  would  show  it  to  be  manifestly  unfair  to  creditors 
not  to  give  thera  special  notice  of  so  important  a  move  as  the  offer  of  a 
composition.    As  the  court  says  in 

In  re  Rider,  3  A.  B.  R.  178,  96  Fed.  808  (D.  C.  N.  Y.) :  "A  construction  which 
permits  the  bankrupt  to  select  a  time  when  but  few  creditors  have  proved  and 
then  to  present  his  terms  only  to  such  creditors  as  he  believes  to  be  friendly 
to  his  interest,  keeping  the  general  creditors  in  the  dark  until  he  has  obtained 
a  majority  of  the  few  who  have  proved,  is  contrary  to  the  intent  and  spirit  of 
the  law.  It  would  enable  a  few  active  and  friendly  creditors  on  the  spot  so  to 
manipulate  the  proceedings  that  the  necessary  majority  could  be  secured  while 
distant  creditors  were  wholly  ignorant  of  the  proposed  settlement.     *     *     * 

"Section  12  is  easily  capable  of  a  construction  compatible  with  the  intent  and 
purpose  which  has  always  ruled  proceedings  of  this  kind.  After  the  bankrupt 
has  been  examined  and  filed  a  list  of  his  creditors  he  'may  offer  terms 
of  composition  to  his  creditors.'  This  plainly  implies  that  the  offer  should  be 
made  to  all  creditors,  whether  they  have  proved  their  debts  or  not.  It  is  not 
essential  that  proofs  shall  be  made  before,  or  at,  the  first  meeting.  They  may 
be  made  at  any  time  within  a  year  after  the  adjudication,  and  it  is  not  neces- 
sary that  they  shall  be  filed,  in  the  first  instance,  with  the  referee.  Section 
57,  c.  n. 

"After  the  terms  are  thus 'made  known  to  all  the  creditors  they  have  a  reason- 
able time  to  decide  whether  they  will  accept  the  offer  or  not." 

The  fact  that  the  offer  is  made  at  the  meeting  of  creditors,  and  that  the 
notice  states  that  the  meeting  has  been  called  for  the  election  of  a  trustee 
and  -'for  other  matters,"  will  not  circumvent  the  salutary  rule  that  special 
notice  ought  to  be  given  of  the  proposed  settlement  to  all  creditors.     Cred- 

4.  In  re  Howard  Lockwood  &  Co.,  4  A.  B.  R.  731,  104  Fed.  794  (D.  C. 
N.   Y.). 

5.  In  re  Hilborn,  4  A.   B.   R.  741,  104  Fed.  866   (D.   C.  N.  Y.). 

6.  Impliedly,  In  re  Rider,  3  A.   B.  R.  178,  96  Fed.   808   (D.  C.  N.   Y.). 


1432  REMINGTON    ON    BANKRUPTCY.  §    2361 

iters  might  not  care  to  be  present  at  the  election  of  a, trustee  to  conduct 
the  administration  of  the  estate  in  the  regular  way,  though  they  might  be 
greatly  interested  in  the  offer  and  acceptance  of  a  proposed  composition. 

In  re  Frear,  10  A.  B.  R.  199,  120  Fed.  978  (D.  C.  N.  Y.) :  "Notice  by  mail  and 
by  publication  of  motion  to  confirm  was  given.  But  this  is  not  a  presentation  of 
the  offer  of  compromise.  The  general  creditors  who  do  not  appear  at  the  first 
meeting  have  the  right  to  assume  that  the  estate  will  be  administered  in  the 
regular    way." 

And  such  creditors  might  have  much  to  say  that  would  influence  the 
other  creditors  to  reject  the  same. 

]\Ioreover.  turning  to  the  forms  and  orders  prescribed  by  the  Supreme 
Court,  a  light  is  thrown  upon  the  subject  by  the  interpretation  manifestly 
put  upon  the  statute  by  the  Supreme  Court;  for  the  Supreme  Court 
has  prescribed  a  form,  known  as  Form  No.  60,  for  calling  precisely  such 
a  meeting — a  meeting  to  consider  a  proposed  ofifer." 

Thus,  even  by  the  Supreme  Court's  form  it  appears  the  bankrupt  is  to 
make  his  ofifer  at  a  meeting  of  creditors  called  for  the  special  purpose. 

§  2359.   Examination  of  Bankrupt  and  Filing  of  Schedules  Req- 
uisite  before    Offer. — Before   presenting   the  offer   he   must   have  been 
examined  in  open  court  or  at  some  meeting  of  his  creditors.    He  also  must 
have  filed  his  schedules — his  schedules  of  assets  and  his  list  of  creditors.. 
Not  until  then  is  it  competent  for  him  to  present  the  ofifer.^ 

•§  2360.  Offer  to  Be  Accepted  in  Writing. — The  offer  must  be  ac- 
cepted* in  writing.^ 

§  2361.  Offer  to  Be  Accepted  by  Majority  in  Number  and  Amount 
of  Allowed  Claims. — The  offer  must  be  accepted  by  at  least  a  majority 
in  number  and  amount  of  creditors  whose  claims  have  been,  by  that  time, 
allowed;  but  no  more  are  requisite.^*' 

It  does  not  require  acceptance  by  a  majority  in  number  and  amount  of 

7.  Compare,  Form  No.  60:  "The  above  named  bankrupt  respectfully  repre- 
sents that  a  composition  of per  cent,  upon  all  unsecured  debts,  not  entitled 

to   priority   in    satisfaction    of   debts    has    been    proposed 

by to creditors,  as  porvided  by  the  acts  of  Congress  relating 

to  bankruptcy,  and  verily  believe  that  the  said  composition  will  be  accepted  bj' 
a  majority  in  number  and  in  value  of creditors  whose  claims  are  allowed. 

"Wherefore,  he  prays  that  a  meeting  of  creditors  may  be  duly  called  to 

act  upon  said  proposal  for  a  composition,  according  to  the  provisions  of  said 
acts  and  the  rules  of  court." 

In  xe  Rider,  3  A.  B.   R.   178,  96   Fed.   808    (D.   C.   N.   Y.). 

8.  Bankr.  Act,  §  13  (a):  "A  bankrupt  may  offer  terms  of  composition  to 
his  creditors  after,  but  not  before,  he  has  been  examined  in  open  court  or  at 
a  meeting  of  his  creditors,  and  filed  in  court  the  schedule  of  his  property  and 
list  of  creditors,  required  to  be  filed  by  bankrupts." 

Obiter,   In  re  Rider,  3  A.  B.  R.   178,  96   Fed.   808   (D.   C.   N.  Y.). 

9.  Bankr.  Act,  §  12  (b) ;  In  re  Rider,  3  A.  B.  R.  178,  96  Fed.  808  (D.  C.  N.  Y.V 

10.  Bankr.  Act,  §  12  (b);  In  re  Rider,  3  A.  B.  R.  178,  96  Fed.  808  (D.  C.  N.  Y.). 


§   2362  PROCEDURE  OF  COMPOSITION,  1433 

all  claims  against  the  bankrupt,  nor  even  of  al!  claims  against  him  that 
are  already  allowed  and  that  may  be  allowed  within  a  certain  time  after- 
wards. It  is  only  requisite  that  the  acceptance  be  by  a  majority  whose 
claims  have  already  been  allowed.  Hence,  the  reason  of  the  rule,  that  the 
offer  should  be  made  only  at  a  meeting  specially  called  for  that  purpose, 
becomes  even  more  evident. 

Compare,  In  re  Rider,  3  A.  B.  R.  178,  96  Fed.  808  (D.  C.  X.  Y.) :  "The  pres- 
ent law  should  be  construed  in  the  light  of  similar  prior  enactments,  and  any 
doubt  should  be  resolved  against  those  who  seek  to  deprive  creditors  of  the 
right  to  have  the  debtor's  property  applied  to  the  payment  of  his  debts.  Noth- 
ing short  of  an  absolutely  plain  and  unambiguous  provision  will  convince  the 
court  that  Congress  intended  for  the  first  time,  it  is  thought,  in  the  history 
of  bankruptcy  legislation,  to  vest  such  unusual  and  dictatorial  powers  with  a 
minority  of  the  creditors.  It  may  be  assumed  that  the  language  of  §  12  is  not 
as  perspicuous  as  could  be  desired,  but,  read  as  a  whole,  the  intention  of  Con- 
gress seems  plain  to  permit  a  compromise  only  when  sanctioned  by  a  majority 
in  number  and  amount  of  the  creditors  whose  claims  have  been  allowed,  after 
due  notice  to  them  of  the  bankrupt's  proposition.  If  the  construction  contended 
for  by  the  bankrupt  be  accepted  it  will  lead  to  most  inequitable  results.  Take, 
for  illustration,  a  case  where  there  are  thirty  creditors  and  only  three  have 
proved  their  debts,  for  equal  amounts,  at  the  time  the  composition  is  offered. 
If  the  bankrupt  obtains  the  consent  of  two  of  them  the  composition  must  be 
confirmed,  although  the  remaining  twenty-eight  creditors  may  be  in  open  op- 
position." 

On  the  other  hand,  it  does  not  mean  that  the  creditor  need  be  present 
either  in  person  or  by  proxy,  as  is  requisite  to  participation  in  other  credit- 
ors' meetings. 

Creditors  may  act  through  their  duly  appointed  attorneys  in  fact.^^ 
But  the  power  of  attorney  should  especially  provide  for  the  acceptance 
of  a  composition. 

§  2362.  Creditors  Once  Accepting  May  Not  Withdraw,  Except  for 
Fraud  or  Misrepresentation. — Creditors  once  accepting  will  not  be  al- 
lowed to  withdraw  acceptance,  in  the  absence  of  fraud  or  misrepresenta- 
tion. 

In  re  Levy,  6  A.  B.  R.  299,  110  Fed.  744  (D.  C.  Penn.)  :  "These  creditors 
voluntarily  came  into  court,  accepted  the  proposed  composition  and  asked  the 
court  to  act  in  the  matter  and  confirm  the  composition.  They  procured  the 
court  to  act,  and  they  are  now  estopped  from  interfering  with  the  further  con- 
duct of  the  case  in  the  matter  of  this  composition.  Had  they  alleged  fraud 
or  misrepresentation  in  the  procuring  of  their  signatures  to  the  acceptance  the 
case  would  be  different." 

11.  Bankr.  Act,  §  1  (g);  [1867]  In  re  Weber  Furn.  Co.,  13  B.  Reg.  529,  559, 
Fed.  Cases  17,330. 


1434  remington  on  bankruptcy.  §  2367 

Division  2. 

Filing  of  the;  Application  for  the  Confirmation  of  the  Composition. 

§  2363.  Petition  for  Confirmation  of  Composition,  When  May 
Be  Filed. — /\fter  the  acceptance  of  the  oiTer  by  the  requisite  creditors,  the 
next  step  is  the  fiHng  of  the  petition  for  confirmation  of  the  composition. 
An  application  for  the  confirmation  of  a  composition  may  be  filed  in 
the  court  of  bankruptcy  after,  but  not  before,  it  has  been  ac- 
cepted in  writing  by  a  majority  in  number  of  all  creditors  whose  claims 
have  been  allowed,  which  number  must  represent  a  majority  in  amount 
of  such  claims,  and  the  consideration  to  be  paid  by  the  bankrupt  to  his 
creditors,  and  the  money  necessary  to  pay  all  debts  which  have  priority, 
and  the  cost  of  the  proceedings,  have  been  deposited  in  such  place  as  shall 
be  designated  by  and  subject  to  the  order  of  the  judge. ^- 

§  2364.  Designation  of  Amount  and  Place  of  Deposit. — From  a 
strict  reading  of  the  statute  it  would  appear  that  the  bankrupt  should  first 
procure  an  order  from  the  judge,  designating  the  amount  and  place  of  de- 
posit of  the  consideration  proposed  by  the  ofifer  to  be  given  to  the  creditors 
and  to  cover  the  costs. ^^ 

In  practice  a  special  order  is  not  generally  made  before  the  filing  of  the 
application,  but  the  referee  in  charge  certifies  to  the  requisite  amount  and 
the  bankrupt  thereupon  deposits  the  money  in  the  regularly  designated 
depository. 

§  2365.  Deposit  to  Be  Sufficient  to  Pay  All  Costs  and  Priority 
Claims,  as  Well  as  Consideration  to  Creditors. — The  deposit  must  be 
sufficient  to  pay  all  costs  and  all  priority  claims,  as  well  as  the  consider- 
ation that  will  go  to  general  creditors.^-* 

Thus,  it  must  be  sufficient  to  cover  taxes. ^^ 

§  2366.  Must  Cover  All  Claims  Filed  and  All  Scheduled.— The  de- 
posit must  also  be  sufficient  to  pay  the  percentage  not  only  on  all  claims 
filed  before  the  confirmation,  but  also  on  all  other  claims  listed  by  the 
bankrupt  in  his  schedules.^*' 

§  2367.  Whether  Must  Cover  Deficiency  of  Secured  Claims  Not 
Yet  Filed. — It  has  been  held    that  the  deposit  need  not  cover  the  per- 

12.  Bankr.    Act,    §    12    (a). 

13.  In  re  Frear,  10  A.  B.  R.   199,   120   Fed.  978   (D.   C.   N.  Y.). 

14.  Bankr.  Act,  §  12  (b).  In  re  Harris,  9  A.  B.  R.  20,  117  Fed.  575  (D.  C 
Tenn.);  In  re  Fox,  6  A.  B.  R.  525  (Ref.  Ohio,  affirmed  by  D.  C);  In  re  Harvey, 
16  A.  B.  R.  345,  144  Fed.  901  (D.  C.  Pa.). 

15.  In  re   Flynn,   13  A.   B.   R.   720,   134   Fed.   145    (D.    C.    Mass.). 

16.  In  re  Fox,  6  A.  B.  R.  525  (Ref.  Ohio,  affirmed  by  D.  C);  In  re  Harvey, 
16  A.   B.  R.  345,  144  Fed.  901   (D.  C.  Pa.). 


§    2369  PROCEDURE  OF  COMPOSITIOX.  1435 

centage  on  the  deficiency  of  secured  claims  where  such  claims  have  not 
been  filed. ^^  But  this  is  doubtful  law.  The  bankrupt  can  estimate  the 
value  of  the  securities  if  the  creditor  neglects  to  do  so  and  the  creditor 
will  be  estopped  by  his  laches. 

§  2368.  What  Costs  Provided  for  in  Composition. — The  costs  and 
priority  claims  will  be  regulated  by  the  same  rule  in  compositions  as  in  the 
regular  administration  of  the  bankrupt  estate,  except  that  the  referee  and 
trustee  will  each  receive  only  one-half  of  one  per  cent,  for  their  commis- 
sions. Frequently  it  happens  also  that  no  trustee  is  elected,  the  election 
being  deferred  pending  the  composition  proceedings.  So  these  items  are 
likely  to  vary  in  these  particulars  from  the  usual  costs  of  the  regular 
bankruptcy  proceedings ;  otherwise  they  are  the  same.^^ 

The  court  will  not  order  the  costs  paid,  against  the  objections  of  the 
bankrupt.  It  will  simply  refuse  to  confirm  the  composition  until  they  are 
provided;  for  the  composition  must  be  voluntary  on  the  bankrupt's  part.^^ 

The  election  of  a  trustee  may  be  dispensed  with  or  postponed,  where  the 
bankrupt  announces  his  intention  of  offering  terms  of  composition. ^o 

§  2369.  Whether  Consideration  Always  to  Be  in  Money. — \\  hether 
the  consideration  must  always  be  money  is  not  clear.  The  wording  of  the 
section  is  very  significant — the  use  of  the  word  "consideration"  instead  of 
the  word  "money"  in  the  part  that  relates  to  what  shall  be  deposited  for 
the  creditors,  and  the  use  of  the  word  "money"  in  the  part  that  provides 
what  shall  be  deposited  to  pay  costs  and  priority  claims ;  also  the  neces- 
sities of  the  situation  itself — the  bankrupt  usually  having  little  opportunity 
of  getting  money — are  likewise  significant,  and  point  to  an  intention  on  the 
part  of  Congress  to  leave  it  possible  for  the  bankrupt  to  obtain  a  composi- 
tion on  the  strength  of  depositing  for  creditors  something  else  than  money, 
as,  for  instance,  his  promissory  notes  secured  by  endorsement  or  by  mort- 
gage upon  the  property  thus  redeemed  by  him  from  bankruptcy.^i 

Or  perhaps  shares  of  stock. 22 

The  law  of  1867  provided  for  payment  or  satisfaction  in  money  in  con- 
tradistinction from  other  property,  but  nevertheless  even  under  that  law  a 
composition  was  held  proper  that  was  effected  by  the  giving  of  notes. ^^ 

17.  In  re  Harvey,  16  A.  B.  R.  345,  144  Fed.  901   (D.  C.  Pa.). 

18.  Instance  of  costs  on  composition:  Attornej^s'  fees  to  petitioning  cred- 
itors and  bankrupt.     In  re  Talton,  14  A.  B.  R.  617,  137  Fed.  178  (D.  C.  N.  Car.). 

Instance  of  costs  refused:  No  allowance  to  referee  as  special  master.  In  re 
Talton,  14  A.   B.   R.  617,  137  Fed.  178   (D.   C.  N.   Car.). 

19.  In  re   Harris,  9  A.   B.   R.  20,  117  Fed.  575   (D.   C.   Tenn.). 

20.  In  re  Rung  Bros.,  2  A.  B.  R.  620   (Ref.  N.  Y.). 

21.  But  see  In  re  Frear,  10  A.  B.  R.  199,  120  Fed.  978  (D.  C.  N.  Y.). 

22.  In  re  Woodend,  12  A.  B.  R.  768,  133  Fed.  593  (D.  C.  N.  Y.),  quoted  posr, 
§  2386:  In  this  case  confirmation  was  refused,  but  not  upon  the  ground  that  the 
ofifer  was  not  in  money. 

23.  In  re  Reiman,  11  B.  Reg.  21,  13  Reg.  128,  12  Blatchf.  562;  In  re  Lang- 
don,  13  B.  Reg.  60;  In  re  Lewis,  14  B.  Reg.  144;  In  re  Hurst,  13  B.  Reg.  455. 


1436  REMINGTON    ON    BANKRUPTCY.  §    2373 

§  2370.  Form  of  Application  for  Confirmation  of  Composition. — 

The  form  of  the  appHcation  for  the  confirmation  of  a  composition  is 
prescribed  by  the  Supreme  Court,  and  is  known  as  Form  No.  61. ^^  It  sets 
forth  the  performance  of  the  requisite  acts  hereinbefore  mentioned. 

§  2371.  Ten  Days  Notice  by  Mail  to  Be  Given. — Ten  days  notice 
by  mail  must  be  given  to  ah  creditors,  unless  waived  by  them  in  writing, 
of  the  hearing  upon  the  apphcation  for  the  confirmation  of  the  composi- 
tion.^^     This  notice  is  usually  given  by  the  referee. 

Division  3. 
Hearing  on  Petition  eor  Confirmation  of  Composition. 

§  2372.   Hearing  on  Petition  for  Confirmation  of  Composition.— 

The  statute  in  §   12   (c)   provides  that 

"A  date  and  place,  with  reference  to  the  convenience  of  the  parties  in 
interest,  shall  be  fixed  for  the  hearing  upon  each  application  for  the  con- 
firmation of  a  composition;  and  such  objections  as  may  be  made  to  its 
confirmation." 

And  further  provides  that  "the  judge  shall  confirm  a  composition  if  satis- 
fied that  (1)  it  is  for  the  best  interests  of  the  creditors;  (2)  the  bankrupt 
has  not  been  guilty  of  any  of  the  acts  or  failed  to  perform  any  of  the  duties 
which  would  be  a  bar  to  his  discharge;  and  (3)  the  offer  and  its  acceptance 
are  in  good  faith  and  have  not  been  made  or  procured  except  as  herein 
provided,  or  by  any  means,  promises,  or  acts  herein  forbidden." 

!§  2373.  Only  Judge  to  Pass  on  Application. — Only  the  judge  may 
pass  upon  the  application  for  the  confirmation  of  a  composition. 

Section  38  in  clause  4,  in  prescribing  the  jurisdiction  of  referees,  pro- 
vides that  they  shall. 

"Perform  such  part  of  the  duties,  except  as  to  questions  arising  out  of  the 
applications  of  bankrupts  for  compositions  or  discharges,  as  are  by  this  act 
conferred  on  Courts  of  bankruptcy"  etc. 

Therefore,  composition  matters  must  all  go  directly  before  the  judge. 

24.    Official   Form   61:     "At    ,    in    said   District,    on   the    day    of 

-,  A.    D.   19 ,   now   comes  ,   the   above   named  bankrupt,   and 


respectfully  represents  to  the  court  that,  after  he  had  been  examined  in  open 
court  (or  at  a  meeting  of  his  creditors)  and  had  filed  in  court  a  schedule  of 
his  property  and  a  list  of  his  creditors,  as  required  by  law,  he  offered  terms 
of  composition  to  his  creditors,  which  terms  have  been  accepted  in  writing  by 
a.  majority  in  number  of  all  creditors  whose  claims  have  been  allowed,  which 
number  represented  a  majority  of  such  claims;  that  the  consideration  to  be 
paid  by  the  bankrupt  to  his  creditors,  the  money  necessary  to  pay  all  debts 
which  have  priority,  and  the  costs  of  the  proceedings,  amounting  in  all  to  the 

sum  of  dollars,  has  been  deposited,  subject  to  the  order  of  the  judge, 

in  the    National   Bank,  of    ,    a  designated    depository    of 

money  in  bankruptcy  .cases. 

"Wherefore  the  said  respectfully  asks  that  the  said  com- 
position may  be   confirmed  by  the  court." 

25.    Bankr.  Act      §  58  (a)   (2). 


§  2374  procedure;  of  composition.  1437 

§  2374.    But  May  Refer  Issues  to  Referee  as  Special  Master. — 

But  the  judge  may  refer  the  questions  mvolved  to  the  referee  as  a  special 
master,  who  will  then  report  his  findings  to  the  judge  for  final  disposition. 2*5 

Adler  v.  Jones,  6  A.  B.  R.  247,  109  Fed.  967  (C.  C.  A.  Tenn.) :  "Questions 
arising  out  of  applications  for  confirmation  of  compositions  are,  therefore, 
addressed  to-  the  judge.  He  may  doubtless  require  the  referee  to  report  the 
facts." 

26.  See  General  Order  No.  XLI  of  the  Supreme  Court's  General  Orders  in 
Bankruptcy:  "3.  Applications  for  a  discharge,  or  for  the  approval  of  a  composi- 
tion *  *  *  shall  be  heard  and  decided  by  the  Judge.  But  he  may  refer  such 
an  application,  or  any  specified  issue  arising  thereon,  to  the  referee  to  ascertain 
and  report  the  facts." 


CHAPTER  XU'II. 

Opposition  to  Confirmation  of  a  Composition. 

Synopsis  of  Chapter. 

DIVISION  1. 

§  2375.  Only    Creditors    May    Oppose    Confirmation:     Trustee    May    Not. 
§  2376.  Court    May    Refuse    Confirmation    without    Appearance    of    Any    "Party 
in  Interest"  Where  Procedure  Irregular. 

DIVISION  2. 

§  2377.  Procedure  on  Opposition  to  Composition  Similar  to  That  on  Discharge. 

§  2378.  Entrj^  of  Appearance  Requisite. 

§  2379.  Ten   Days   Time  after  Appearance,   for   Filing   Specifications. 

§  2380.  Form  and  Allegations  of  Specifications,  Similar  to  Discharge. 

DIVISION  3. 

§  2381.  Three    Grounds    of   Opposition. 

§  2382.  Statutory  Grounds   Requisite  to   Bar   Confirmation   on   Merits. 

§  2383.  Burden  of  Proof  on   Opposing   Creditor. 

subdivision  "a." 

§  2384.  First    Ground— "Not    for    Best    Interests    of    Creditors." 
§  2385.  Test    of    "Best    Interest"— Whether    More    Could    Be    Realized    by    Or- 
dinary Administration. 
§  2386.  Creditors'   Acceptance   of   Ofifer    Not   to    Be    Lightly    Interfered   with. 

SUBDIVISION    "b." 

§  2387.  Second   Ground — Commission  of  Act   Barring  Discharge,   Bars   Compo- 
sition. 

SUBDIVISION    "C." 

§  2388.  Third    Ground — Offer   or   Acceptance    Not   in    Good   Faith   or   Procured 
Improperly. 

Division   1. 

Who  May  Oppose  thf  Confirmation  of  a  Composition. 

§  2375.  Only  Creditors  May  Oppose  Confirmation:  Trustee  May 
Not. — The  statute  does  not  in  express  terms  declare  who  may  oppose  the 
confirmation  of  a  composition,  but  does  so  impHedly,  by  providing,  in  gen- 
eral terms,  in  §  12  (c)  for  the  fixing  of  a  time  and  place  convenient  to 
"parties  in  interest. "^ 

iBut  by  construction  of  the  statute  and  orders  it  is  deduced  that  only 
creditors  may  be  parties  to  oppose  it,  and  that  the  trttstee  may  not  do  so. 

1.    In  re  Levey,  13  A.  B.  R.  312,  133  Fed.  572  (D.  C.  N.  Y.}. 


§    2377  OPPOSITION   TO   CONFIRMATION    OF   A   COMPOSITION.  1439 

Ross  V.  Sanders,  5  A.  B.  R.  350,  105  Fed.  915  (C.  C.  A.  Mass.):  "There  is 
no  law  authorizing  any  person  to  become  a  party  to  this  proceeding  except  the 
bankrupt  and  his  creditors.  The  statute  directs  notice  to  the  latter,  and  to 
no  other  person;  and  General  Order  32  (32  C.  C.  A.  xxxi,  89  Fed.  xiii.)  pro- 
vides for  their  appearance,  and  for  no  other.  There  is  nothing  in  the  statute 
or  in  the  General  Orders  which  authorized  the  trustee,  as  trustee,  to  interfere 
in  this  proceeding,  beyond  furnishing  such  information  concerning  the  estate 
under  his  charge,  and  the  admjinistration  thereof,  as  might  be  requested, 
which  duty  is  expressly  imposed  on  him  by  law.  JSTeither  is  there  anything 
which  justifies  the  trustee  in  defending  this  appeal  at  the  expense  of  the 
estate,  or  in  his  capacity  as  trustee.  The  English  statutes  in  bankruptcy  'pro- 
vide expressly  that  a  trustee  may  appeal  from  an  order  of  confirmation.  Under 
those  statutes  the  official  receiver  becomes  the  ad  interim  trustee,  and  stands 
quasi  trustee  until  the  trustee  proper  is  appointed.  Therefore  he  has  the  same 
relation  to  a  question  of  composition  which  the  trustee  has,  but  he  is  not 
expressly  authorized  by  the  statutes  to  appeal.  Consequently,  in  Ex  parte 
Reed,  17  Q.  B.  Div.  244,  258,  an  official  receiver  was  somewhat  sharply  told 
that  he  ought  not  to  appear  on  the  hearing  of  an  appeal  of  this  character  unless 
the  court  required  him  to  do  so.  In  that  particular  case  it  was  held  that  he 
ought  not  to  have  appeared,  and  his  costs  were  refused,  although  the  composi- 
tion was  set  aside.  This  is  in  accordance  with  the  ordinary  rule  that  a  stake- 
holder stands  equal  between  the  parties  concerned,  and  should  not  interfere  in 
litigation  unless  .  equired  to  do  so  by  the  court  which  has  jurisdiction  over 
him." 

Thus,  it  was  held  that  a  creditor,  who  by  an  assignment  induced  by  the 
alleged  false  representations  of  the  trustee  and  bankrupt,  had  parted  with 
all  title  to  his  claim  against  the  estate  could  not  assail  a  composition  nor 
move  to  vacate  its  confirmation. ^ 

§  2376.  Court  May  Refuse  Confirmation  without  Appearance  of 
Any  "Party  in  Interest,"  Where  Procedure  Irregular. — It  may  be 

the  duty  of  the  Judge,  without  the  appearance  of  any  party  in  interest  in 
opposition,  to  refuse  to  confirm  a  composition.-^ 

But  such  refusal  should  only  occur  where  the  proceedings  are  irregular. 
The  statute  hardly  permits  the  court,  of  its  own  motion,  to  refuse  con- 
firmation on  the  merits,  any  more  than  to  refuse  discharge. 

Division  2. 

Procedure  upon  Opposition  to  Confirmation  of  Composition. 

§  2377.  Procedure  on  Opposition  to  Composition  Similar  to  That 
on  Discharge. — In  general,  the  procedure  on  opposition  to  confirmation 
of  a  composition  is  similar  to  that  on  opposition  to  discharge.'* 

2.  Obiter,  In  re  Wrisley  Co.,  13  A.  B.  R.  193,  133  Fed.  388  (C.  C.  A.  Ills.). 

3.  Ross  V.  Saunders,  5  A.  B.  R.  350,-  105  Fed.  915  (C.  C.  A.  Mass.),  wherein 
the  court  quotes  In  re  Burr,  2  Q.  B.  Div.  467,  472:  "In  bankruptcy  cases,  the 
court  has  very  often  to  protect  creditors   against  themselves." 

4.  Bank  v.  Doolittle,  5  A.  B.  R.  736,  107  Fed.  236  (C.  C.  A.  Tex.). 


1440  REMINGTON    OX    BANKRUPTCY,  ^    2381 

§  2378.  Entry  of  Appearance  Requisite. — Any  creditor  desiring  to 
oppose  the  confirmation  of  a  composition,  must  enter  his  appearance — that 
is  to  say,  appear  before  the  judge  or  the  district  clerk  and  have  the  entry 
made  that  he  appears — for  the  purpose  of  opposing  the  confirmation  at  or 
before  the  time  set  in  the  notices,  precisely  the  same  as  in  cases  of  oppo- 
sition to  a  discharge.''' 

§  2379.  Ten  Days  Time  after  Appearance,  for  Filing  Specifica- 
tions.— Thereafter,  within  ten  days  time,  unless  longer  time  is  given  by 
the  judge,  the  creditor  must  file  written  specifications  of  the  grounds  of 
his  opposition  to  the  confirmation  of  the  composition,  precisely  as  in  case 
of  discharge. "^ 

§  2380.  Form  and  Allegations  of  Specifications,  Similar  to  Dis- 
charge.— The  form  and  allegations  of  the  creditor's  specifications  of  his 
grounds  of  opposition  to  the  confirmation  of  the  composition  follow,  in 
general,  those  in  opposition  to  discharge.'^ 

Division  4- 

Grounds  for  Opposition  to  thi;  Conpirmation  op  a  Composition. 

§  2381.  Three  Grounds  of  Opposition. — The  statute  provides  three 
grounds  for  refusing  confirmation  of  a  composition. 

The  judge  must  confirm  a  composition,  if  satisfied  that  it  is  for  the 
best  interests  of  the  creditors  and  if  the  bankrupt  has  not  been  guilty 
of  any  of  the  acts  or  failed  to  perform  any  of  the  duties  w-hich  would  be  a 
bar  to  his  discharge,  and  the  ofifer  and  its  acceptance  are  in  good  faith  and 
have  not  been  made  or  procured  except  as  provided  in  the  act,  or  by  any 
means,  promises  or  acts  forbidden  by  the  Act.^ 

5.  Gen.  Ord.  XXXII:  "A  creditor  opposing  the  application  of  a  bankrupt  for 
his  discharge,  or  for  the  confirmation  of  a  composition,  shall  enter  his  appear- 
ance in  opposition  thereto  on  the  day  when  the  creditors  are  required  to  show 
cause,  and  shall  file  a  specification  in  writing  of  the  grounds  of  his  opposition 
within  ten  days  thereafter,  unless  the  time  shall  be  enlarged  bj-  special  order  of 
the  judge." 

Adler  v.  Jones,  6  A.  B.  R.  248,  109  Fed.  967  (C.  C.  A.  Tenn.). 

6.  Gen.  Ord.  Xo.  XXXII. 

Delay  in  order  to  permit  liquidation  of  claim  refused.  In  re  Heinsfurter, 
3  A.  B.  R.  109,  97  Fed.  198  (D.  C.  Iowa).  In  this  case  the  court  refused  to  de- 
lay confirmation  to  give  time  for  a  creditor  to  effect  a  liquidation  of  an  unliqui- 
dated claim,  because  of  laches,  or  prior  disallowance  by  the  Bankruptcj'  Court 
itself  and  because  of  a  preference. 

7.  Adler  v.  Jones,  6  A.  B.  R.  248,  109  Fed.  967  (C.  C.  A.  Tenn.);  Bk.  v.  Doo- 
little,  5  A.  B.  R.  736,  107  Fed.  236   (C.  C.  A.  Tex.). 

8.  Bankr.  Act,  §  12  (b).  See  also,  Bank  v.  Doolittle,  5  A.  B.  R.  736,  107  Fed. 
236  (C.  C.  A.  Tex.).  Compare,  interesting  discussion  of  the  functions  of  the 
judge  in  relation  to  compositions  in  Ross  v.  Saunders,  5  A.  B.  R.  350  (C.  C.  A. 
Mass.). 


§    2385  OPPOSITION   TO   CONFIRMATION    OF   A   COMPOSITION.  1441 

§  2382.  Statutory  Grounds  Requisite  to  Bar  Confirmation  on 
Merits. — Only  such  grounds  as  are  prescribed  by  statute  will  suffice  to 
prevent  confirmation  of  a  composition.^ 

But,  after  confirmation,  it  is  possible  that  the  court  retains  the  power 
to  set  aside  its  order  of  confirmation  and  reinstate  the  case  precisely  as 
in  other  cases. ^"^ 

And  the  court  may,  for  good  cause,  delay  confirmation  without  re- 
fusing it.^^ 

But  for  irregularity  of  procedure  and  failure  to  comply  with  the  stat- 
utory requirements,  the  court  may  refuse  confirmation  of  a  composition; 
and  may  do  so  even  on  its  own  motion. 

§  2383.  Burden  of  Proof  on  Opposing  Creditor. — The  burden  of 
proof  is  on  the  creditor  opposing  the  confirmation.^- 

SUBDIVISION    "a." 

First  Ground  of  Opposition  to  Confirmation  of  a  Composition. 

§  2384.   First  Ground:     "Not  for  Best  Interests  of  Creditors."— 

Where  the  composition  is  not  for  the  best  interests  of  the  creditors  it  may 
be  refused. ^^        , 

§  2385.  Test  of  "Best  Interest"— Whether  More  Could  Be  Real- 
ized by  Ordinary  Administration. — The  test  is  not  whether  the  bank- 
rupt could  give  more,  but  is  whether  or  not  more  could  be  realized  by 
creditors  if  the  assets  are  administered  in  due  course. ^^ 

Adler  t-.  Jones,  6  A.  B.  R.  248,  109  Fed.  967  (C.  C.  A.  Tenn.) :  "It  comes, 
then,  to  this:  if  the  court  is  satisfied  upon  the  hearing  that  the  composition 
offered  would  pay  creditors  very  considerably  less  than  they  might  reasonably 
be  expected  to  realize  in  the  administration  of  the  assets  in  due  course,  then 
the  composition  is  not  for  'the  best  interest  of  creditors.     In  determining  this 

9.  Bank  v.  Doolittle,  5  A.  B.  R.  741,  107  Fed.  236  (C.  C.  A.  Tex.);  In  re  Rud- 
wick,  2  A.  B.  R.  114,  9.3  Fed.  787  (D.  C.  Mass.). 

10.  Bank  v.  Doolittle,  5  A.   B.  R.  742,  107  Fed.  2.36   (C.  C.  A.  Tex.). 

11.  Inferentially,  In  re  Heinsfurter,  3  A.  B.  R.  109,  97  Fed.  198  (D.  C.  Iowa): 
In  this  case,  however,  delay  was  refused  because  of  lack  of  a  sufficient  reason 
therefor. 

12.  Obiter,  Bk.  v.  Doolittle,  5  A.  B.  R.  741,  107  Fed.  236   (C.  C.  A.  Tex.).'* 

13.  Bankr.  Act,  §  12  (b).  In  re  Rider,  3  A.  B.  R.  178,  96  Fed.  808  (D.  C.  N. 
Y.);  In  re  Woodend,  12  A.  B.  R.  768,  133  Fed.  .593  (D.  C.  N.  Y.);  Adler  v.  Jones, 
6  A.  B.  R.  248,  109  Fed.  967  (C.  C.  A.  Tenn.).  Obiter,  U.  S.  ex  rel  Adler  v. 
Hammond.  4  A.  B.  R.  736,  104  Fed.  62  (C.  C.  A.  Tenn.).  Obiter,  confirmation 
being  granted,  In  re  Arrington  Co.,  8  A.  B.  R.  66,  113  Fed.  498  (D.  C.  Va.). 
Obiter,  confirmation  being  granted.  In  re  Criterion  Watch  Case  Co.,  8  A.  B.  R. 
206  (Ref.  N.  Y.). 

14.  Inferentially,  in  re  Criterion  Watch  Case  Co.,  8  A.  B.  R.  206  (Ref.  N.  Y.)  ; 
In  re  Arrington  Co.,  8  A.  B.  R.  66,  113  Fed.  498  (D.  C.  Va.) ;  instance.  In  re 
:\Iartin,  18  A.  B.  R.  250  (D.  C.  N.  Y.);  [1867]  In  re  Whipple,  Fed.  Cases  No. 
17,513;   [1867]   In  re  Weber  Furniture  Co.,  Fed.  Cases  No.  17,330. 

2  Rem  B— 16 


1442  REMINGTON    ON   BANKRUPTCY.  §    2386 

question  the  courts  will  doubtless  be  influenced  by  the  consideration  that 
man  can  ordinarily  do  better  with  his  own  property,  and  realize  more  there- 
from, than  can  be  obtained  in  course  of  judicial  proceedings  with  compulsory 
sales  and  expense  of  administration." 

[1867]  In  re  Morris,  Fed.  Cases  No.  7,303,  11  N.  B.  Reg.  443:  "In  the 
absence  of  fraud  and  concealment  the  question  for  the  court  seems  to  be  not 
whether  the  debtor  might  have  offered  more,  but  whether  the  estate  would 
pay  more  in  bankruptcy." 

Obiter  U.  S.  ex  rel  Adler  v.  Hammond,  4  A.  B.  R.  736,  104  Fed.  62  (C.  C. 
A.  Tenn.) :  "Obviously  this  amount  is  contemplated  as  a  sum  which  will  be 
the  equivalent  of  the  assets  which  would  be  obtained  bj^  the  other  and  more 
tedious   course." 

Thus,  if  the  composition  offered  would  pay  creditors  considerably  less 
than  they  might  reasonably  expect  to  realize  in  the  administration  of  the 
assets  in  due  course,  then  the  composition  is  manifestly  not  for  the  best 
interests  of  the  creditors  ;^^  even  though  the  amount  expected  to  be  real- 
ized be  dependent  on  the  successful  outcome  of  a  pending  suit  to  set 
aside  a  fraudulent  transfer. ^"^ 

§  2386.  Creditors'  Acceptance  of  Offer  Not  to  Be  Lightly  Inter- 
fered with. — The  decision  of  the  majority  of  the  creditors  usually  is 
conclusive  as  to  "best  interest"  in  the  amount  of  the  composition,  when 
such  judgment  is  exercised  by  them  in  good  faith  and  there  is  nothing  to 
indicate  fraud,  accident  or  mistake.^" 

[1867]  In  re  Weber  Furniture  Co.,  Fed.  Cases  No.  17,330  (on  review  No. 
17,331) :  "But  where  a  composition  deed  has  been  signed  by  a  large  majority 
of  the  creditors  upon  a  full  consideration  of  the  condition  of  the  debtor, 
I  should  be  very  reluctant  to  overrule  their  judgment  simply  because 
I  thought  the  estate  would  yield  a  larger  dividend  in  bankruptcy.  Much 
would  depend  upon  the  character  of  the  property  and  the  state  of  the 
market.  In  the  case  above  cited  Judge  Lowell  intimated  'that  a  difiference 
of  five  per  cent,  upon  the  amount  of  the  debts  and  the  probable  amount  of  the 
assets  would  not  be  sufificient  to  induce  me  to  reject  the  resolution.'  I  would 
go  even  further  than  that,  and  say  that  where  the  property  consisted  of  real 
estate  or  of  goods,  the  value  of  which  depended  upon  the  caprices  of  fashion, 
or  other  like  contingencies,  I  would  not  overrule  the  discretion  of  the  cred- 
itors, fairly  exercised,  if  the  difference  were  ten  or  even  fifteen  per  cent." 

But  it  is  not  always  conclusive. 

Ixt  re  Woodend,  12  A.  B.  R.  768,  133  Fed.  593  (D.  C.  N.  Y.) :  "The  actual 
composition  proposed,  therefore,  as  I  understand  it,  consists  of  an  offer  to 
pay  debts  with  worthless  stock,  the  acceptance  of  which  will  impose  a  heavy 
personal  liability.  For  instance,  a  creditor  for  $1000  is  to  be  forced  to  accept 
in   full   settlement  eleven   shares,   worth   $2.75,   the   acceptance   of  which   would 

15.  Adler  v.  Jones.  6  A.  B.  R.  248,  109  Fed.  967  (C.  C.  A.  Tenn.);  [1867]  In  re 
Reiman,  11  B.  Reg.  21,  13  B.  Reg.  128. 

16.  Adler  v.  Jones,  6  A.  B.  R.  248,  109  Fed.  967  (C.  C.  A.  Tenn.). 

17.  In  re  Arrington  Co.,  8  A.  B.  R.  66,  113  Fed.  498  (D.  C.  Va.). 


§    2387  OPPOSITION   TO   CONFIRMATION    OF   A   COMPOSITION.  1443 

involve  him  in  a  personal  liability  to  the  extent  of  $1,100.  I  think  that  no  such 
composition  should  be  confirmed.  It  is  urged  that  a  large  majority  of  the 
creditors  have  assented  to  it.  Any  creditors  who  choose  to  make  such  a 
settlement  are  free  to  do  so,  but  in  my  opinion  this  court  should  not  compel 
any   dissenting   creditor   to   accept    such    an   offer." 

SUBDIVISION    "b." 

Second  Ground  for  Opposing  Confirmation  of  Composition. 

§  2387.  Second  Ground — Commission  of  Act  Barring  Discharge, 
Bars  Composition. — If  the  bankrupt  has  committed  any  of  the  acts  that 
would  be  a  bar  to  his  discharge,  confirmation  of  his  composition  will  be 
refused,  no  matter  how  beneficial  the  composition  would  be  to  his  cred- 
itors, nor  how  few  creditors  are  opposing  the  confirmation.^^ 

In  re  Godwin,  10  A.  B.  R.  252,  122  Fed.  Ill  (D.  C.  Penn.) :  "It  is  very 
likely  that  the  creditors  may  lose  by  the  defeat  of  the  proposed  composition; 
but  this  consideration  cannot  be  allowed  to  influence  the  court  in  deciding 
whether  the  bankrupt  has  been  'guilty  of  any  of  the  acts,  or  failed  to  perform 
any  of  the  duties,  which  would  be  a  bar  to  his  discharge.'  Bankruptcy  Act, 
§  12,  cl.  'd.'  I  agree  with  the  learned  referee  that  the  testimony  establishes 
the  fact  satisfactorily  that  the  bankrupt  has  committed  one  of  the  offenses 
specified  in  §  14,  clause  'b.'  He  has,  'with  fraudulent  intent  to  conceal  his  true 
financial  condition  and  in  contemplation  of  bankruptcy,  destroyed,  concealed 
or  failed  to  keep  books  of  account  or  records  from  which  his  true  condition 
might  be  ascertained.'  This  being  so,  I  think  the  act  requires  me  to  refuse 
approval  of  the  composition,  without  regard  to  the  question  whether  the 
creditors  would  be  benefited  thereby;  and  the  fact  that  only  one  creditor 
is  actively  objecting,  while  a  large  majority  is  in  favor  of  taking  what  the 
bankrupt  offers,  is   of  no  importance   in  the  present   inquiry. 

"The  report  of  the  referee  is  approved  and  the  confirmation  of  the  com- 
position is  refused." 

In  re  Olman,  13  A.  B.  R.  398  (D.  C.  Ohio):  "T]\e  absurdity  of  the  ex- 
planation offered  compels  the  belief  that  the  bankrupts  failed  to  keep  books 
from  which  their  true  condition  might  be  ascertained,  and  withheld  such 
books  as  they  did  keep  for  the  purpose  of  concealing  their  true  financial 
condition,  and  to  enable  them  to  conceal  property  from  their  creditors,  and  that 
it  was  done  with  a  view  to  force  a  profitable  compromise  with  the  creditors, 
or  ultimately  to  secure  a  discharge  from  their  debts  through  proceedings  in 
bankruptcy. 
"The    application    to    confirm   the    composition    therefore    will    be    refused." 

In  this  connection  it  is  well  to  call  attention  to  the  offense  of  presenting 
J.  false  claim  for  proof,  or  of  using  any  such  claim  in  composition,  per- 
sonally or  by  agent,  proxy  or  attorney,  or  as  agent,  proxy  or  attorney.  Al- 
though there  appear  to  be  no  cases  decided  under  the  present  law  upon  the 
point,  such  use  of  false  claims  is  deemed  to  be  more  or  less  frequent  in 
composition  cases,  and  would  be  a  bar  to  confirmation. 

18.  Instance  where  "False  Oath"  urged,  but  not  proved.  In  re  Cohen,  18  A.  B. 
R.  85,  149  Fed.  908  (D.  C.  N.  Y.). 


1444  remixgtox  ox  baxkruptcy.  §  2388 

subdivisiox'  "c" 
Third  Grouxd  of  Oppositiox  to  Coxfirmatiox  of  a  Compositiox. 

§  2388.  Third  Ground — Offer  or  Acceptance  Not  in  Good  Faith  or 
Procured  Improperly. — If  the  offer  or  its  acceptance  is  not  in  good  faith 
or  has  been  made  or  procured  improperly,  confirmation  may  be  re  fused.  ^^ 

Thus,  where  a  trustee  was  interested  in  a  scheme  of  composition  with 
creditors,  and  by  conceahiient  or  false  representations,  in  aid  of  the  bank- 
rupt, induced  creditors  to  act  contrary  to  their  interests,  a  composition  thus 
entered  into  was  annulled.-'^ 

19.  Bankr.  Act,  §  12  (b). 

As  to  the  effect  of  a  secret  advantage  given  under  a  composition,  see  Batchel- 
der  V.  Whitmore,  10  A.  B.  R.  641  (C.  C.  A.  Mass.).  Compare  same  subject 
where  composition,  in  which  the  secret  advantage  was  given,  occurred  before 
bankruptcy.     In  re  ChampHn,  8  A.  B.  R.  121  (D.  C.  Mass.). 

20.  In  re  Wrisjey  Co.,  13  A.  B.  R.  193,  133  Fed.  888   (C.  C.  A.  Ills.). 

The  bankrupt's  attorney  is  not  necessarily  disqualified  from  collecting  claims 
for  the  trustee  in  composition  cases  and  the  attorney  may  recover  for  such 
services.     Keyes  v.  McKirrow,  9  A.  B.  R.  322,  180  Mass.  261. 


CHAPTER  XLVIII. 

DlSTRIBUTlOX      AND      PROCEEDINGS     AFTER     CONFIRMATION      IN      COMPOSI- 
TION   Cases. 

Synopsis   of   Chapter. 

§  2389.  Distribution,    upon    Confirmation    of    Composition. 

§  2390.  Judge    Directs    Manner    of    Distribution. 

§  2391.  Referee  Divested  of  Jurisdiction  by  Confirmation  of  Composition  Ex- 
cept   as    Otherwise    Ordered   by   Judge. 

§  2392.   Distributing  Agent   Usually   Appointed. 

§  2393.  All  Creditors  to  Share,  Whether  Proofs  Filed  or  Allowed  or  Not, 
unless  Limited  by  Order  of  Distribution. 

§  2394.  Whether   Bound   by   Year's   Limitation    for    Filing   Claims. 

§  2395.  Secured  Creditors  to  Participate  to  Amount  of  Deficit. 

§  2396.  But  Judge  May  Limit  Time  and  Require  Filing  of  Proofs  of  Claims. 

§   2397.   Closing  of   Case  after   Distribution   Completed. 

§  2398.  Jurisdiction  to  Determine  Ownership  of  Property  in  Custody  of  Court 
Not  Divested. 

§  2389.  Distribution,  upon  Confirmation  of  Composition. — Upon 
the  confirmation  of  a  composition,  the  con.sideration  is  to  be  distributed 
as  the  judge  directs,  and  the  case  dismissed.  AA'henever  a  composition  is 
not  confirmed,  the  estate  is  to  be  administered  in  bankruptcy  as  provided 
in  the  Act.^ 

§  2390.  Judge  Directs  Manner  of  Distribution. — The  judge  directs 
the  manner  of  distribution. - 

§  239L  Referee  Divested  of  Jurisdiction  by  Confirmation  of 
Composition,  Except  as  Otherwise  Ordered  by  Judge. — The  referee 
is  (hvested  of  jurisdiction  by  the  confirmation  of  a  composition.-^ 

In  re  Fox,  6  A.  B.  R.  526  (Ref.  Ohio,  affirmed  by  D.  C.) :  "Section  12e  of 
the  Bankruptcy  Act  provides  that  'upon  the  confirmation  of  a  composition 
the  consideration  shall  be  distributed  as  the  judge  shall  direct  and  the  case 
dismissed.  Whenever  a  composition  is  not  confirmed  the  estate  shall  be  admin- 
istered in  bankruptcy  as  herein  provided.' 

"This  section,  taken  in  conjunction  with  the  well   defined  reservation  to  the 

1.  Bankr.  Act,  §  12  (e).  In  re  Lane.  11  A.  B.  R.  137,  125  Fed.  772  (D.  C. 
Mass.). 

2.  Bankr.  Act,  §  12.  (e).  In  re  Lane.  11  A.  B.  R.  137,  125  Fed.  772  (D.  C. 
Mass.). 

3.  But  compare,  apparently  contra,  In  re  Sonnabend,  18  A.  B.  R.  117  (Ref. 
Mass.). 


1446  REMINGTON   ON    BANKRUPTCY.  f^   2394 

judge  contained  in  §  38  (4)  of  all  'questions  arising  out  of  the  applications  of 
bankrupts  for  compositions,'  sufficiently  indicates  that  the  confirmation  of  the 
composition  in  this  case  divested  the  referee  of  further  jurisdiction  and 
placed  the  composition  fund  and  all  questions  relating  to  its  distribution — 
including  necessarily  the  allowance  of  contested  claims — directly  'under  the 
supervision  of  the  judge  himself,  as  well  as  all  questions  arising  more  spe- 
cifically out  of  the  consideration  of  the  advisability  of  approving  the  compo- 
sition." 

But,  undoubtedly,  the  judge  may,  in  his  order,  direct  the  referee  to 
determine  the  vahdity  of  claims  and. to  perform  other  functions  relative 
to  the  distribution;  but  this  would  be  by  virtue  of  the  order  and  not  be- 
cause he  is  the  referee.^ 

§  2392.  Distributing-  Agent  Usually  Appointed. — Usually  the  judge 
appoints  a  distributing  agent  to  take  charge  of  the  composition  fund  and 
to  disburse  it  in  accordance  with  the  order  of  confirmation.  The  clerk  of 
the  court  or  referee,  or  trustee  or  any  other  person  may  be  such  dis- 
tributing agent.  The  distributing  agent  may  be  allowed  compensation  for 
lis  services,  under  the  broad  authority  that  the  distribution  shall  be  ac- 
complished "as  the  judge  shall  direct." 

§  2393.  All  Creditors  to  Share,  Whether  Proofs  Filed  or  Allowed 
or  Not,  unless  Limited  by  Order  of  Distribution. — All  creditors  are 
entitled  to  share,  even  those  who  did  not  file  their  claims  before  the  con- 
firmation.^ 

It  is  also  a  question,  whether,  unless  the  judge  has  ordered  otherwise, 
it  is  not  the  duty  of  the  distributing  agent  appointed  by  the  judge,  to  pay 
the  percentage  to  the  creditors  whose  claims  have  not  yet  been  filed,  ac- 
cording to  the  schedules,  without  demand  or  proof  of  claim,  subject  simply 
to  correction  on  application  to  the  judge.*^ 

§  2394.   Whether  Bound  by  Year's  Limitation  for  Filing  Claims. 

— It  is  also  a  question  whether,  unless  the  judge  in  his  order  has  pre- 
scribed a  limit,  creditors  are  limited  by  the  statutory  period  of  one  year 
from  the  date  of  the  adjudication  in  making  demand  for  their  respective 
shares.  The  limitation  of  one  year  was  made  in  the  interests  of  all  the 
creditors  as  a  body ;  but,  in  compositions,  it  is  a  matter  of  indifference  to 
other  creditors  when  any  one  particular  creditor  is  paid  his  share.''' 

In  re  Fox,  6  A.  B.  R.  527  (Ref.  Ohio,  affirmed  by  D.  C.) :  "In  the  fir^t 
place    the   fascinating  analogy   between   the   complete   distribution   of   an   estate 

4.   Obiter,  In  re  Fox,  6  A.  B.  R.  526  (Ref.  Ohio). 

£.  In  re  Fox,  6  A.  B.  R.  525  (Ref.  Ohio,  affirmed  by  D.  C).  Compare,  infer- 
entially,  to  same  effect,  In  re  Rider,  3  A.  B.  R.  178,  96  Fed.  808  (D.  C.  N.  Y.). 

6.  In  re  Fox,  6  A.  B.  R.  525  (Ref.  Ohio,  affirmed  by  D.  Cf.). 

7.  Contra,  In  re  Lane,  11  A.  B.  R.  136  (D.  C.  Mass.). 


§   2394  PROCEEDINGS  AFTER  CONFIRMATION.  1447 

in  dividends  before  the  expiration  of  the  allotted  year  and  the  distribution  of 
composition  money  to  those  only  who  have  promptly  filed  their  claims  does 
not  stand  under  close  inspection.  In  compositions  the  amount  each  creditor 
is  to  receive  is  fixed  and  his  delay  in  calling  for  it  hurts  no  one  but  himself, 
whilst  in  the  payment  of  dividends  no  one  can  get  any  pay  at  all  until  the 
rate  is  determined;  and,  if  the  rate  could  not  be  determined  until  the  last 
straggler  had  filed  his  claim,  then  no  one  could  get  his  pay  until  the  end  of  the 
year.  For  this  reason  the  law  says  the  laggard  claimant  of  a  dividend  must 
suffer  rather  than  all  the  others.  But  such  considerations  do  not  apply  to- 
compositions;  for  who  is  hurt  if  the  creditor  does  take  the  whole  year  or 
more   to   demand  his   monej^?      No   one  but   himself. 

"In  the  next  place,  the  creditors  and  the  amounts  of  their  claims  to  be- 
covered  by  the  composition  arrangement  may  not,  as  is  mistakenly  contended,, 
be  different  from  those  set  forth  in  the  list  already  filed  as  part  of  the  bank- 
rupt's original  schedules;  nor  would  it  be  necessary  for  them  to  be  different 
in  order  to  avoid  the  contingency  of  a  total  frustration  of  a  desirable  com- 
position through  some  unscrupulous  creditor  making  an  excessive  claim.  This 
is  so  for  the  reason  that  the  'list  of  creditors'  required  by  §  7  of  the  act  to  be- 
filed  by  bankrupts  with  their  petitions  need  not  show  the  amounts  claimed 
by  the  respective  creditors,  though  it  may  do  so,  but  need  show  merely  the 
respective  amounts  'due,'  that  is  to  say,  rightfully  owing,  to  each  of  them. 
So  it  is  evident  no  unjust  claims  need  be  taken  into  account  in  fixing  the 
deposit,  even  if  it  is  the  schedules  that  are  required  to  be  taken  for  the 
basis;  for  as  to  the  claims  alread}^  filed,  the  order  of  allowance  itself  determines 
their  justness;  and  as  to  those  not  filed,  the  bankrupt's  own  estimate  of  their- 
justness  is  controlling,  and  he  has  no  one  to  blame  but  himself  if  he  has  to  make 
a    deposit   to   cover  some   scheduled   claims   that   are   unjust. 

"Again,  there  is  no  half-way  stop  between  the  position  that  all  just  claims 
must  be  allowed  to  participate  in  the  composition  fund,  and  the  position  that 
only  those  filed  before  the  filing  of  the  petition  for  confirmation  may  partic- 
ipate. Thus  it  would  be  inconsistent  with  either  position  to  hold  that  those 
proved  after  the  petition  was  filed  and  before  the  judge  had  acted  on  it  should' 
be  included  in  the  distribution.  There  would  exist  necessity,  in  such  an  event, 
for  adding  to  the  deposit  and  for  amending  the  petition  to  correspond  there- 
with, each  time  a  new  claim  was  added,  up  to  the  very  day  of  the  confirmation 
hearing,  and  the  bankrupts  would  still  be  laboring  under  the  burden  of  the 
uncertainties  complained  of,  in  making  their  offer  of  composition." 

Contra,  In  re  Brown,  10  A.  B.  R.  589,  123  Fed.  336  (D.  C.  Colo.):  "The 
question  presented  by  thes^  petitions  is  whether,  in  a  case  where  composition 
is  effected,  a  creditor  must,  under  §  57  of  the  Bankrupt  Act,  prove  his  claim 
within  one  year  from  the  date  of  adjudication.  That  he  must  do  so  in  ordinary 
cases  where  composition  is  not  made,  has  been  the  uniform  rule  since  the  act 
was  passed.  In  re  Meyer  Stein  (C.  C),  1  Am.  B.  R.  662,  94  Fed.  124.  The 
rule  must  be  the  same  in  a  case  where  composition  is  made.  Under  section  12, 
the  bankrupt  may  offer  terms  of  composition  'after  but  not  before  he  has  been 
examined  in  open  court,  or  at  a  meeting  of  his  creditors.'  The  creditors  here 
referred  to  are  such  as  have  proved  their  claims,  for  no  others  can  participate  • 
in  a  meeting  of  creditors.  Clause  'b'  of  this  section  provides  for  confirmation 
of  the  composition  'after  but  not  before  it  has  been  accepted  in  writing  by  a 
majority  in  number  of  all  creditors  whose  claiins  have  been  allowed-.'  Under 
clause  'e,'  if  the  composition  shall  fail,  'the  estate  shall  be  administered  in 
bankruptcy  as  herein  provided.'     As  to  the  proof  of  claims,  the  course  of  pro- 


1448  REMIXXTOX    ox    BANKRUPTCY.  §    2395 

ceeding  is  precisely  the  same  whether  there  be  composition,  or  proceedings 
are  carried  through  in  ordinary  course.  Only  those  creditors  who  prove 
their  claims  within  one  year  from  the  date  of  adjudication  can  have  divi- 
dends from  the  estate,  or  assert  a  right  to  share  in  the  funds  paid  in  composi- 
tion. The  officers  of  the  court  cannot  know  what  amount  should  be  paid  to 
a  creditor,  or,  indeed,  who  are  creditors,  except  upon  proof  of  their  claims 
in  the  time  and  manner  provided  bj^  law.  The  bankrupt  is  entitled  to  the 
money  remaining  in  court  unclaimed  after  the  expiration  of  the  year  in  which 
proof  of  claims  could  be  made,  and  the  creditor  cannot  be  heard  to  say  that 
it  was  not  in  fault,  in  respect  to  the  failure  to  present  its  claim.  The  language 
of  the  statute  permits  no  exceptions  to  its  terms.  'Claims  shall  not  be  proved 
against  a  bankrupt  estate  subsequent  to  one  year  after  the  adjudication.'  Xo 
language  could  be  more  explicit,  and  no  court  can  doubt  as  to  its  meaning." 

§  2395.   Secured  Creditors  to  Participate  to  Amount  of  Deficit. — 

Secured  creditors  are  entitled  to  their  respective  shares  to  the  extent  of  any 
deficit  left  after  appHcation  of  their  security  on  the  debt. 

[1867]  Paret  v.  Ticknor,  16  X.  B.  Reg.  315:  "I  am  of  opinion  myself  that  the 
compromise  provisions  of  bankruptcy  design  that  every  creditor  shall  receive 
the  same  proportion  of  his  debt;  and  I  am  of  opinion  as  regards  the  parties 
who  shall  receive,  that  the  secured  creditor  is  a  creditor  for  that  purpose  for 
all  that  is  not  satisfied  by  his  security;  and  I  am  of  the  opinion  that  whenever 
this  fact  is  ascertained,  even  after  the  compromise,  that  remainder  constitutes 
a  debt  against  the  bankrupt,  of  which  he  shall  pay  the  same  proportion  to  that 
creditor  that  he  has  paid  to  the  unsecured  creditors." 

[1867]  Cavanna  v.  Bassett,  3  Fed.  Rep.  21.5:  "Composition  proceedings  do  not 
operate  to  deprive  a  secured  creditor  of  the  right,  after  exhausting  his  own 
securit}',  and  ascertaining  the  amount  unpaid,  to  assert  against  the  bankrupt 
a  claim  for  the  deficienc}^  and  such  claims  may  be  enforced  through  the 
instrumentality  of  an  execution  issued  against  the  property  of  the  debtor  on 
the  deficient  judgment;  complainant  had  a  right  to  hold  on  to  her  security, 
and  as  a  secured  creditor  she  could  not  properly  participate  in  the  composition 
proceedings;  she  could  not  be  coinpelled  to  surrender  her  securitj^  and  then 
come  in  and  prove  her  claim,  nor  was  it  encumbent  on  her  to  have  her  security 
valued  and  then  to  make  proof  of  any  balance;  the  bankrupts  knew  or  should 
have  known  that  there  was  a  liability  that  the  security  would  not  paj^  the  in- 
debtedness; they  were  chargeable  with  notice  that  such  a  contingency  might 
arise,  and  if  ^hey  desired  to  put  complainant  in  position  where  the  complain- 
ant's proceedings  would  operate  upon  hers,  they  might  have  applied  to  the 
court  for  proceedings  compulsory  in  their  nature,  to  have  the  security  valued; 
not  having  done  so,  there  remained  a  liability  that  in  case  the  security  should 
prove  inadequate,  complainant  would  have  the  right  as  to  any  deficiency,  to 
compel  the  payment  of  the  same  to  the  extent  of  the  percentage  paid  to  unse- 
cured  creditors   under   the   composition." 

In  re  Kahn,  9  A.  B.  R.  113  (Ref.  X.  Y.,  approved  by  D.  C.) :  "It  thus  would 
appear  that  the  bankrupt  must  be  willing,  in  view  of  the  situation,  to  assume 
the  risk  and  liability  of  being  compelled  to  make  good  hereafter  to  such  mort- 
gage creditors,  the  same  percentage  of  such  deficiency,  if  any  could  arise, 
as  he  is  now  offering  to  paj^  to  his  body  of  creditors;  and  the  mortgage  cred- 
itors are  not  injuriously  affected  by  the  composition,  because  as  is  pointed  out 


§  2398  PROCEEDINGS  AFTER  confirmatiox.  1449 

in  the  last  case  cited,  tliey  could  by  proper  proceedings  in  the  court,  have 
their  security  valued  and  present  a  provable  claim  for  the  difference  between 
the  amount  of  their   security  and  the   amount  of  their   respective   debts." 

Secured  creditors  either  may  receive  their  dividends  with  the  others 
iipon  complying  with  the  statutory  provisions  regarding  the  determination 
of  the  vakie  of  securities,  §  57;  or,  perhaps,  if  they  do  not  do  so,  doubtless 
the  bankrupt  would  be  still  liable  thereafter  to  them  for  their  dividend, 
when  the  deficit  should  be  ascertained.^ 

§  2396.  But  Judge  May  Limit  Time  and  Require  Filing  of  Proofs 
of  Claims. — But  the  judge  may,  by  order,  undoubtedly  fix  a  limit  for 
creditors  to  make  demand,  and  may  prescribe  that  creditors  shall  make 
due  proof  of  claims ;  and  may  direct,  in  other  ways,  the  manner  of  dis- 
tribution.'^ 

§  2397.  Closing  of  Case  after  Distribution  Completed. — After^  a 
composition  has  been  confirmed  and  the  consideration  distributed,  the 
case  is  closed.  The  statute  says  the  case  is  to  be  "dismissed."  The  dis- 
missal either  refers  merely  to  a  dismissal  or  closing  of  the  original  bank- 
ruptcy proceedings  before  the  referee,  or  is  a  misnomer;  for  composi- 
tion is  precisely  as  much  a  way  of  administering  an  estate  and  discharging 
a  bankrupt  as  any  other  way.^" 

In  re  Fox,  6  A.  B.  R.  529  (Ref.  Ohio,  affirmed  by  D.  C.) :  "Nor  is  it  proper 
to  consider  that  there  is  no  longer  a  case  in  court.  There  still  must  remain  a 
case  pending  somewhere  so  long  as  the  deposit  fund  is  not  paid  out;  there 
m'ust  be  some  case  in  which  the  distributing  agent  may  file  his  report;  it  is 
not  conceivable  that  he  could  be  existing  stark  alone  and  unconnected  with 
■any  case  in  court.  The  reporter  in  his  note  to  the  case.  In  re  Rider,  3  Am.  B. 
R.  178,  is  in  this  regard  wholly  in  error.  Section  12e,  in  declaring  the  pro- 
■cedure,  does  not  mean  that  the  case  is  to  be  dismissed  immediately  upon  the 
entry  of  the  order  of  confirmation.  It  means  that  thereafter,  upon  completion 
•of  the  distribution,  the  case  is  to  be  dismissed — not  beforehand.  Such  is  cer- 
tainly the  reasonable  intendment.  And  the  question  still  remains:  How  long 
shall  the  case  be  kept  pending  thereafter?  The  answer  is,  until  the  distribution 
has  been  completed,  until  all  the  just  creditors  have  been  pai4  their  per- 
centages." 

And  it  would  seem  necessary  that  the  distributing  agent  should  make 
a  report  of  his  doings  and  have  it  approved ;  otherwise  would  occur  tlie 
anomaly  of  a  court  proceeding  in  the  distribution  of  funds  without  a 
*  case"  in  which  the  papers  should  be  filed! 

§  2398.  Jurisdiction  to  Determine  Ownership  of  Property  in  Cus- 
tody of  Court  Not  Divested. — Composition  does  not  afifect  the  juris- 

8.  In  re  Kahn,  9  A.  B.  R.  113  (Ref.  approved  by  D.  C). 

9.  Bankr.  Act,  §  12  (e).  Obiter,  In  re  Fox,  6  A.  B.  R.  525  (Ref.  Ohio,  affirmed 
hy  D.  C). 

10.  But  compare.  Bank  v.  Doolittle,  5  A.  B.  R.  741,  107  Fed.  236  (C.  C.  A. 
Tex.).    Also,  compare.  In  re  Rider,  3  A.  B.  R.  178,  96  Fed.  808  (D.  C.  N.  Y.). 


1450  REMINGTON    ON   BANKRUPTCY.  §    2398 

diction  of  the  bankruptcy  court  to  determine  the  ownership  of  property 
in  its  custody  and  claimed  adversely.^ ^  Adverse  claimants  to  property  in 
the  custody  of  the  bankruptcy  court  must  have  their  rights  determined 
by  the  bankruptcy  court,  notwithstanding  a  composition  is  effected,  and 
even  though  no  adjudication  of  bankruptcy  is  ever  entered. 

11.  In  re  J.  S.  Winship  Co.,  9  A.  B.  R.  638,  120  Fed.  93  (C.  C.  A.  Ills.):  In 
this  case  the  court  held  that  where  a  composition  with  the  creditors  of  an  al- 
leged bankrupt  is  carried  out  and  no  adjudication  in  bankruptcy  is  made  in  the 
cause,  property  claimed  to  have  been  leased  to  the  alleged  bankrupt,  and  taken 
possession  of  by  the  receiver  in  bankruptcy,  must  be  returned  to  the  claimant. 
The  property  being  in  custodia  legis,  taken  for  the  benefit  of  creditors  and  no 
longer  necessary  to  be  held  for  them,  the  court  may  summarily  determine  the 
disposition  thereof,  and  no  technicality  will  be  permitted  to  intervene  to  pre- 
vent a  just  determination  of  that  question. 


CHAPTER  XLIX. 

Setting  Aside  of  Composition. 

Synopsis  of  Chapter. 
DIVISION  1. 

§  2399.  Court's    Power    to    Set    Aside    Confirmation    for    Irregularity. 

§  2400.  Setting   Aside    Confirmation    on    Application    of    Parties. 

§  2401.  Must  Be  Applied  for  within   Six  Months. 

§  2402.  What  Not  Estoppel  of  Creditor. 

§  2403.  Burden    of    Proof    on    Creditor. 

§  2404.  Only  "Parties  in  Interest"   Competent  to  Petition   for  Setting  Aside. 

§  2405.  Principles    and    Practice    on    Revocation    of    Discharge,    Whether    Ap- 
plicable. 

DIVISION  2. 

§  2406.  Petition   to    Set   Aside    Composition. 

§  2407.  Leave  to  File  Petition  Granted  unless  Lack  of  Merit  Appears  on  Face. 

§  2408.  Consideration    Need    Not    Be    Tendered    Back. 

§  2409.  Ignorance    of    Fraud    Sufficiently    Alleged    in    General    Terms. 

Division   L 

Principles   Involved   and   Parties   Competent  to   Petition. 

§  2399.  Court's  Power  to  Set  Aside  Confirmation  for  Irregular- 
ity.— The  judge  retains  the  same  power  to  set  aside  for  irregularity  orders 
of  confirmation  of  compositions  and  to  reinstate  cases  that  he  has  in  re- 
lation to  other  matters.^ 

§  2400.    Setting  Aside  Confirmation  on  Application  of  Parties. — 

The  judge  may,  upon  the  application  of  parties  in  interest,  filed  at  any 
time  within  six  months  after  a  composition  has  been  cpnfirmed,  set  the 
same  aside  and  reinstate  the  case,  if  it  shall  be  made  to  appear  upon  a 
trial  that  fraud  was  practiced  in  the  procuring  of  such  composition,  and 
that  the  knowledge  thereof  has  come  to  the  petitioners  since  the  confirma- 
tion of  the  composition.- 

Thus,  it  has  been  held  sufficient  ground  for  setting  aside  the  confirma- 
tion that  the  trustee  was  interested  in  a  scheme  of  composition,  and  by 
concealment  or  false  representations  in  aid  of  the  bankrupt,  had  induced 
creditors  to  act  contrary  to  their  interest.'^  But  it  was  held  to  be  in- 
sufficient grounds  for  setting  it  aside  that  the  complaining  creditor  was 
not  notified  and  had  no  information  of  the  bankruptcy,  even  where  the 
deposit  does  not  cover  his  claim.-* 

1.  Bank  v.  Doolittle,  5  A.  B.  R.  742,  107  Fed.  236  (C.  C.  A.  Tex.). 

2.  Bankr.  Act.  §  13.     In  ve  Rudwick,  2  A.  B.  R.  114,  93  Fed.  787  (D.  C.  Mass.). 

3.  In  re  Wrisley  Co.,  13  A.  B.  R.  193,  133  Fed.  388  (C.  C.  A.  IllsO- 

4.  In  re  Rudwick,  2  A.  B.  R.  114,  93  Fed.  787  (D.  C.  Mass.). 


1452  REMINGTON    ON    BANKRUPTCY.  §    2405 

§  2401.  Must  Be  Applied  for  within  Six  Months.— The  application 
to  set  aside  a  composition  must  be  filed  within  six  months  after  the  con- 
firmation.^ 

§  2402.  What  Not  Estoppel  of  Creditor. — A  creditor  who  is  moving 
to  set  aside  a  composition  on  the  ground  of  fraud,  is  not  estopped  by  hav- 
ing commenced  an  action  at  law  on  his  debt.  The  petition  to  set  aside  the 
composition  should  not  be  dismissed  on  that  account,  nor  should  the  cred- 
itor be  required  to  elect  as  to  his  remedies.^  Nor  does  the  fact,  that  the 
order  confirming  the  composition  recites  that  it  appears  that  the  bank- 
rupt has  not  been  guilty  of  any  acts,  or  failed  to  perform  any  duties  which 
would  bar  his  discharge,  and  that  the  offer  and  its  acceptance  are  in  good 
faith,  and  have  not  been  made  or  procured  by  means,  promises  or  acts- 
contrary  to  the  acts,  preclude  the  setting  aside  of  the  composition  for 
fraud  in  procuring  it,  discovered  since  confirmation." 

§  2403.  Burden  of  Proof  on  Creditor. — The  burden  of  proof  is  on 
the  party  seeking  to  have  the  order  of  confirmation  set  aside. ^ 

§  2404.  Only  "Parties  in  Interest"  Competent  to  Petition  for 
Setting"  Aside. — Only  parties  in  interest  may  ask  for  the  setting  aside 
of  'the  confirmation.*^ 

Thus,  it  has  been  held  that  a  creditor,  who,  by  an  assignment  induced 
by  the  alleged  false  representations  of  the  trustee  and  bankrupt,  has  parted 
with  all  title  to  his  claim  against  the  estate,  cannot  assail  a  composition  nor 
move  to  vacate  its  confirmation.^'^ 

§  2405.  Principles  and  Practice  on  Revocation  of  Discharge, 
Whether  Applicable. — ]\Iany  of  the  principles  laid  down  upon  the  sub- 
ject of  the  revocation  of  discharges  are  applicable  and  reference  is  made 
thereto. ^^     But   there   are   some   distinctions   of   importance   to   be   noted. 

Thus,  it  is  not  necessary  to  prove  the  existence  of  original  bars  to  dis- 
charge in  order  to  procure  the  revocation  of  the  confirmation.  But  it  is 
necessary  in  order  to  obtain  the  setting  aside  of  a  composition,  as  likewise 
the  revocation  of  a  discharge,  that  the  original  confirmation  of  the  com- 
position shall  be  proved  to  have  been  procured  by  fraud. 

5.  In  re  Eisenberg,  16  A.  B.  R.  776,  148  Fed.  325   (D.  C.  N.  Y.). 

6.  In  re  Roukous,  12  A.  B.  R.  169,  128  Fed.  645  (D.  C.  R.  I.). 

7.  In  re  Roukous,  12  A.  B.  R.  128,  128  Fed.  645  (D.  C.  R.  I.). 

8.  Bank  v.  Doolittle,  5  A.  B.  R.  743,  107  Fed.  236  (C.  C.  A.  Tex.). 

9.  Bankr.  Act,  §  13.  In  re  Wrisley  Co.,  13  A.  B.  R.  193,  133  Fed.  388  (C.  C.  A. 
Ills.). 

10.  In  re  Wrisley  Co.,  13  A.  B.  R.  193,  133  Fed.  388  (C.  C.  A.  Ills.). 

11.  Compare,  analogously.  Bank  v.  Doolittle,  5  A.  B.  R.  731,  107  Fed.  236 
(C.  C.  A.  Tex.).     See  post,  §  2806,  et  seq. 


§    2409  SETTING   ASIDE   OE    COMPOSITION.  1453 

Division  2. 
PeEading  in  Setting  Aside  Compositions. 

§  2406.  Petition  to  Set  Aside  Composition. — The  setting  aside  of 
the  confirmation  of  a  composition  is  to  be  effected  on  petition. 

The  petition  should  be  verified.  It  may  be  verified  in  the  usual  form 
for  a  bill  in  equity.^- 

But  verification  by  an  agent  who  had  not  personal  knowledge  of  the 
facts  is  insufficient.^-^     And  it  has  been  held    that  a  demurrer  would  lie.^-* 

§  2407.  Leave  to  File  Petition  Granted  unless  Lack  of  Merit  Ap- 
pears on  Face. — Leave  to  file  a  petition  to  vacate  an  order  confirming 
a  composition  should  be  given  unless,  upon  the  facts  alleged,  the  petition 
could  not,  under  any  circumstances,  be  granted. ^^ 

§  2408.  Consideration  Need  Not  Be  Tendered  Back. — It  is  not  nec- 
essary to  aver  restoration  or  offer  of  restoration  of  consideration  received 
by  the  creditor,  nor  to  tender  the  same  into  court.  The  consideration  need 
not  be  restored. ^^ 

§  2409.  Ignorance  of  Fraud  Sufficiently  Alleged  in  General 
Terms. — It  is  sufiicient  to  allege  the  petitioner  did  not  know  of  the  facts 
constituting  the  fraud  charged  in  the  procuring  of  the  confirmation,  prior 
to  the  confirmation.  When  or  how  the  facts  were  learned  need  not  be 
allesred.^^ 


12.  In  re  Roukous,  12  A.  B.  R.  138,  128  Fed.  645  (D.  C.  R.  I.). 

13.  In  re  Roukous,  12  A.  B.  R.  128,  128  Fed.  645  (D.  C.  R.  I.). 

14.  In  re  Roukous,  12  A.  B.  R.  128,  128  Fed.  645   (D.  C.  R.  I.). 

15.  In  re  Wrisley  Co.,  13  A.  B.  R.  193,  133  Fed.  388  (C.  C.  A.  Ills.). 

16.  In  re  Roukous,  12  A.  B.  R.  128,  128  Fed.  645  (D.  C.  R.  I.). 

17.  In  re  Roukous,  12  A.  B.  R.  128,  128  Fed.  645  (D.  C.  R.  I.). 


CHAPTER  L. 

Appeals  of  Composition  Matters. 
Synopsis  of  Chapter. 

§  2410.  Appeals    of    Composition    Matters. 
§  2411.  Whether  Appeal,  Only  Method  of  Review. 
§  2412.  Who    May    Appeal. 

§  2413.  Refusal    to    Confirm    Not    to    Be    Reversed,    Except    for    Abuse    of    Dis- 
cretion. 

§  2410.  Appeals  of  Composition  Matters. — Appeals  may  be  had 
from  an  order  confirming  or  refusing  to  confirm  a  composition;^  but  ap- 
parently not  where  creditors  were  not  parties  of  record  in  the  opposition, 
and  the  judge,  sua  sponte,  upon  mere  suggestion  of  the  trustee,  had  re- 
fused the  confirmation. 2 

§  2411.  Whether  Appeal,  Only  Method  of  Review. — Indeed,  it  has 
been  held  that  appeal  in  composition  cases,  as  in  discharge  cases,  is  the 
only  method  of  review.^  It  is  one  of  the  steps  in  bankruptcy  proceedings 
proper,  and  is  to  be  considered  as  being,  in  efifect,  a  granting  or  refusal 
of  a  discharge,  and  hence  reviewable  only  by  appeal.-*  Refusal  to  con- 
firm a  composition  is  reviewable.^ 

§  2412.  Who  May  Appeal. — Creditors  receiving  their  shares  under 
the  composition  before  the  appeal  is  taken,  are  necessary  parties  to  the 
appeal,  and  the  appeal  will  be  dismissed  if  they  are  not  made  parties.^ 

But  if  such  creditors  are  too  numerous,  all  need  not  be  joined ;  but  a 
sufficient  number  must  be  joined  to  insure  representation.' 

It  has  been  held  that  the  bankrupt  may  not  appeal  from  a  refusal  to 
confirm  a  composition,  where  there  were  no  objecting  creditors  and  the 
judge  had  simply  acted,  sua  sponte,  on  the  trustee's  suggestion,  for  want 
of  proper  parties.^     But  this  could  be  the  law  only  where  refusal  was  for 

1.  See  post,  §  2864,  et  seq.,  general  subject  of  "Appeals  and  Errors.'' 
U.  S.  ex  rel.  Adler  v.  Hammond,  4  A.  B.  R.  736,  104  Fed.  62  (C.  C.  A.  Tenn.,  re- 
versing In  re  Adler,  4  A.  B.  R.  583);  In  re  Friend,  13  A.  B.  R.  595,  134  Fed.  778 
(C.  C.  A.  Ills.). 

2.  Ross  V.  Saunders,  5  A.  B.  R.  350,  105  Fed.  915  (C.  C.  A.  Mass.). 

3.  In  re  Friend,  13  A.  B.  R.  595,  134  Fed.  778  (C.  C.  A.  Ills.). 

4.  See    post,    §    2864,    et    seq.,    general    subject    of    "Appeals    and    Errors. 

5.  U.  S.  ex  re'l  Adler  v.  Hammond,  4  A.  B.  R.  736,  104  Fed.  62  (C.  C.  A. 
Tenn.).  Compare,  Ross  v.  Saunders,  5  A.  B.  R.  350,  105  Fed.  915  (C.  C.  A. 
Mass.). 

6.  Marshal  Field  &  Co.  v.  Wolf  &  Bro.  Dry  Goods  Co.,  9  A.  B.  R.  693,  120 
Fed.  815  (C.  C.  A.  Ark.). 

7.  Obiter,  In  re  Marshal  Field  &  Co.  v.  Wolf  &  Bro.  Dry  Goods  Co.,  9  A.  B. 
R.  693,  120  Fed.  815  (C.  C.  A.  Ark.). 

8.  Ross  V.  Saunders,  5  A.  B.  R.  350,  105  Fed.  915  (C.  C.  A.  Mass.). 


§   2413  APPEALS   OF   COMPOSITION    MATTERS.  1455 

want  of  proper  parties  or  lack  of  proper  deposit,  or  for  other  irregularity, 
and  not  on  the  merits ;  for  the  court  hardly  has  the  right,  sua  sponte,  to 
refuse  confirmation  on  the  merits. 

§  2413.  Refusal  to  Confirm  Not  to  Be  Reversed,  Except  for  Abuse 
of  Discretion. — But  the  refusal  of  the  district  judge  to  confirm  a  com- 
position will  not  be  disturbed  unless  there  be  an  abuse  of  discretion.^ 

9.   Adler  v.  Jones,  6  A.  B.  R.  245,  109  Fed.  967  (C.  C.  A.  Tenn.). 


PART  X. 

Discharge). 


2  Rem  B— 17 


CHAPTER  LI. 

Nature  and  History  of  Discharge;. 

Synopsis  of  Chapter. 

§  2414.  Discharge. 

§  2415.  Discharge    a    Distinct    Incident,    Not    an    Essential,    of    Bankruptcy. 
§  2416.  May    "Go    into"    or    Be    "Thrown    into"    Bankruptcy    Repeatedly,    Irre- 
spective   of    Refusal    or    Granting   of   Discharge. 

§  2414.  Discharge. — Discharge  is  the  release  of  a  bankrupt  from  the 
obHgation  to  pay  his  debts  which  are  provable  in  bankruptcy,  except  such 
as  are  excepted  by  the  act.^ 

§  2415.  Discharge  a  Distinct  Incident,  Not  an  Essential  of  Bank- 
ruptcy.— In  the  orderly  development  of  the  treatise  the  interesting  and  im- 
portant subject  is  now  reached  of  the  bankrupt's  discharge  from  future  en- 
forcement of  liability  for  his  debts  incurred  before  bankruptcy.  The  proper 
place  for  this  subject  in  a  systematic  treatise  is  at  the  end,  as  here,  yet  it  is  so 
not  because  the  discharge  is  the  end  or.  winding  up  of  a  bankruptcy  case,  but 
rather  because  discharge  is  not  involved  in  the  orderly  progress  of  the  ad- 
ministration of  a  bankrupt  estate  at  all  and  is,  rather,  merely  an  incident — 
although  a  most  important  one — to  a  bankruptcy  case,  thus  making  con- 
sideration of  it  in  its  chronological  order  somewhat  of  an  interruption  of 
the  systematic  treatment  of  a  bankruptcy,  proceedings. 

In  re  Clisdell,  4  A.  B.  R.  95,  101  Fed.  246  (D.  C.  N.  Y.) :  "Here  then, 
is  a  bankrupt  duly  adjudicated.  His  petition  for  a  discharge  is  a  separate 
and   distinct  proceeding." 

Inferentially,  In  re  Glass,  9  A.  B.  R.  397,  119  Fed.  509  (D.  C.  Tenn.) :  "While 
the  petition  for  discharge  is  founded  on  the  original  petition  in  bankruptcy, 
voluntary  or  involuntary,  and  the  record  built  upon  that  foundation,  it  is, 
after  all,  quite  an  independent  proceeding,  as  are  the  specifications  in  answer 
to  it." 

Thus,  the  petition  for  discharge  may  be  filed  at  any  time  within  the 
siatutory  period  regardless  of  the  stage  of  progress  reached  in  the  admin- 
istration of  the  estate. - 

It  has  been  already  noted  that  bankruptcy  law  was  originally  a  cred- 
itors' law — a  swift,  sharp  remedy  placed  in  the  hands  of  creditors  for 
seizing  upon  the  property  and  person  of  absconding  or  hiding  debtors,  of 
ferreting  out  concealed  assets,  of  reducing  them  into  money  and  for  dis- 
tributing them    equitably    amongst    creditors.     There  was    originally    no 

1.  Bankr.  Act,  §  1  (13).  U.  S.  ex  rel.  Adler  v.  Hammond.  4  A.  B.  R.  739,  104 
Fed.  862  (C.  C.  A.  Tenn.). 

2.  Paxton  v.  Scott,  10  A.  B.  R.  80,  92  N.  W.  (Xeb.)  611. 


1460  REMIXGTOX    OX   BAXKRUPTCY.  §   2415 

thought  of  affording  any  reHef  therein  to  the  debtor  himself  by  freeing  him 
from  further  molestation  for  his  old  debts.^ 

In  re  Xeel}%  12  A.  B.  R.  410  (Ref.  N.  Y.) :  "It  was  not  originally  a  feature 
of  bankruptcy  legislation  either  in  this  country  or  in  England.  The  funda- 
mental element  in  every  system  of  bankruptcj-  has  been  to  provide  for  and 
regulate  the  distribution  of  the  bankrupt's  propertj-  equally  among  his  cred- 
itors. Originally  this  was  its  only  purpose,  and  it  was  confined  to  traders 
as  a  purely  commercial  regulation.  Latterly  a  second  element  was  added  in  the 
provisions  for  discharge  upon  such  terms  and  conditions  as  the  act  may  pro- 
vide." 

And.it  is  not  an  essential  idea,  or  part,  of  bankruptcy  law,  but  merely 
an  incident  to  it.'* 

In  re  Salmon,  16  A.  B.  R.  134,  143  Fed.  393  CD.  C.  Mo.):  "Again,  to 
render  a  State  insolvency  law  inoperative  because  in  contravention  of  the 
Federal  Bankrupt  Act,  it  is  not  essential  that  the  State  act  shall  contain  a  pro- 
vision for  the  discharge  of  the  debtor.  It  is  rather  thought  such  provision 
for  discharge  is   an  incident  to,  but   not   an   essential  part   of,   such   law."' 

Indeed,  bankruptcy  was  a  felony,  being  expressly  declared  such  by  the 
statute  of  King  James  I,  and  the  bankrupt  could  be  thankful  if  his  adjudi- 
cation as  bankrupt  did  not  result  in  his  being  imprisoned  as  a  felon. 

But  as  a  clearer  appreciation  arose  of  the  vast  change  that  was  taking 
place  in  the  commercial  world ;  that  men  w^ere  beginning  to  do  business 
for  the  general  market,  no  longer  waiting  for  specific  orders,  and  that,  as 
a  consequence  business  was  coming  more  to  be  done  on  credit,  and  that 
it  was  becoming  more  necessary  for  producers  and  merchants  alike  to  take 
chances  in  disposing  of  their  gpods  upon  the  general  market,  a  modified 
feeling  arose  with  regard  to  those  who  failed  in  business.  It  began  to  be 
understood  that  a  merchant,  obtaining  goods  on  credit  and  taking  risk  in 
disposing  of  them  upon  the  general  market,  might  miscalculate,  might  be 
improvident  and  might  fail,  leaving  a  great  body  of  creditors  unpaid,  and 
yet  might  not  be  a  criminal  nor  be  of  fraudulent  mind.  It  was  precisely 
this  change  in  the  manner  of  doing  business  that,  as  we  have  seen,^  made 
inadequate  the  old  common-law  remedies  of  attachment  and  execution 
and  brought  about  the  enactment  of  the  first  Bankruptcy  Act.  But  at  first, 
as  the  provisions  of  the  statutes  would  seem  to  indicate,  the  real  import 
and  extent  of  the  change  do  not  seem  to  have  been  apprehended.  Finally, 
however,  a  more  just  and  sensible  understanding  of  the  actual  situation 
came  about;  and  the  idea  developed  that  if  a  debtor  who  had  thus  taken 
chances  and  failed,  nevertheless  did  all  he  could,  thereupon,  to  aid  his 
creditors  in  discovering  assets  and  in  realizing  the  most  out  of  them,  he 
should  be  granted  a  discharge  from  the  unpaid  and  unsatisfied  remainder; 
the  idea  being  three-fold:     That  it  was  just  and  humane  to  the  debtor 

3.  See  ante,  Introd. 

4.  See  ante,  Introd. 

5.  See  ante,  Introd,  §  (f). 


§    2416  NATURE  AXD   HISTORY  OF  DISCHARGE,  1461 

himself,  that  it  aided  creditors  in  discovering  and  recovering  assets,  and 
that  it  was'  in  the  interest  of  a  sound  public  policy  not  to  keep  the  debtor 
forever  in  bondage  to  his  debts,  but  to  restore  his  energies  to  the  business 
community. 

This  idea  of. a  discharge  first  became  implanted  in  bankruptcy  juris- 
prudence in  the  reign  of  Queen  Anne,  about  one  hundred  and  sixty  years 
after  the  first  bankruptcy  law  was  enacted.  The  first  provision  for  dis- 
charge will  be  found  quoted  in  the  Introduction  at  §   (i). 

Thus,  in  the  beginning  the  privilege  of  discharge  was  granted  very  spar- 
ingly and  left  much  to  the  discretion  of  the  court. 

The  first  United  States  Bankruptcy  Act  that  provided  unqualifiedly  for 
the  discharge  of  the  debtor  was  that  of  1841.^ 

From  the  foregoing  observations  it  is  apparent  that  the  provisions  as  to 
discharge  have  steadly  grown  in  liberality.  The  law  of  1898,  before  its 
amendment  at  any  rate,  went  furthest  of  any  law  in  the  direction  of  lib- 
erality. Only  proof,  and  strict  proof,  of  the  violation  of  some  one  of  the 
three  cardinal  virtues  of  an  insolvent  debtor  was  sufficient  to  bar  his  dis- 
charge, that  is  to  say,  the  debtor  must  not,  whilst  a  bankrupt,  have  made 
a  false  oath  in  the  proceedings,  nor,  whilst  a  bankrupt,  have  concealed 
assets,  nor  have  destroyed,  concealed  or  failed  to  keep  books  of  account. 
Yet,  if  he  violated  none  of  these  three  primary  duties,  his  discharge  was 
assured.  Moreover,  as  if  desirous  of  further  qualifying  even  these  merely 
necessary  bars  to  discharge,  the  law  compelled  proof — at  least,  as  to  two 
of  them,  the  false  oath  and  the  concealment  of  assets — to  be  made  almost 
beyond  a  reasonable  doubt :  more  than  a  mere  preponderance  of  the  evi- 
dence being  required — the  evidence  having  to  be  "convincing"  and  "sat- 
iffying,"  since  the  proof,  although  in  a  civil  proceedings,  must  neverthe- 
less be  the  proof  of  a  crime  in  each  case.  By  the  amendment  of  1903  fur- 
ther grounds  of  discharge  were  added,  so  that  the  extreme  liberality  of 
the  original  enactment  of  1898  was  considerably  restricted.  Neverthe- 
less, the  friendly  attitude  of  bankruptcy  law  of  today  towards  discharge  is 
aptly  pointed  in  the  significant  provision  which  has  persisted  in  the  stat- 
ute, that  the  discharge,  unless  it  is  proved  to  be  barred,  "shall"  be  granted. 

•  §  2416.  May  "Go  Into"  or  Be  "Thrown  Into"  Bankruptcy  Repeat- 
edly, Irrespective  of  Refusal  or  Granting  of  Discharge. — The  cred- 
itors, and  likewise  the  debtor,  as  well,  are  entitled  to  invoke  the  bankruptcy 
law  and  to  file  petitions  for  adjudication  of  bankruptcy  as  often  as  they 
deem  proper,  irrespective  of  any  granting  or  refusing  of  discharge  to  the 
debtor.  The  petition  for  adjudication  is  nowise  dependent  upon  the  pe- 
tition for  discharge.  The  discharge  is  a  privilege  which  the  debtor  may  or 
may  not  apply  for  and  may  or  may  not  obtain,  but  the  adjudication  of 

6.    In  re  Schawninger,  16  A.  B.  R.  429,  144  Fed.  555  (D.  C.  Wis.). 


1462  REMINGTON    ON    BANKRUPTCY.  §    2416 

bankruptcy  and  the  consequences  flowing  therefrom  in  the  way  of  avoid- 
ance of  preferences  and  legal  liens,  and  the  use  of  the  special  machinery 
of  the  bankruptcy  courts,  is  an  entirely  diiTerent  and  independent  righfJ 
But  of  course  the  right  of  creditors  to  bring  successive  petitions  for 
adjudication  undoubtedly  is  subject  to  the  equity  rules  granting  relief 
against  the  vexatious  repetition  of  lawsuits. 

7.    Compare,  In  re  Bartoris  Estate,  16  A.  B.  R.  576,  144  Fed.  540  (D.  C.  Ark.j. 
Compare,  post,  §§  2437,  2441. 


CHAPTER  LII. 

Petition  for  Discharge:. 
Synopsis  of  Chapter. 
§  2417.  Petition    for    Discharge. 

DIVISION  1. 

§  2418.  Any   Person   Adjudged    Bankrupt,    Competent   to   Apply   for   Discharge. 
§  2419.  Corporations  Entitled  to  Discharge. 

§  2420.  Intervening  Insanity  Does  Not  Affect  Right  to  Discharge. 
§  2421.  Neither    Does    Intervening   Death. 

§  2422.  No  Discharge  of  Individual  in  Partnership  Bankruptcy  unless  Indi- 
vidual  Adjudication. 

DIVISION  2. 

§  2423.  Discharge    Petition   to   Be    Filed   after    One   Month    and   before   End   of 

Year    from    Adjudication. 
§  2424.   Extension   of   Time    Granted. 

'§  2425.  But  to   Be  Applied  for  before  Expiration  of  Time. 
§  2426.  And    Only   Because    "Unavoidably   Prevented:"   and    "Nunc    Pro    Tunc" 

Orders  to   Cover  Laches  Improper. 
§  2427.  No  Jurisdiction  to  Discharge,  on  Petition  Filed  after  Eighteen  Months. 
§  2428.  Referee   Need   Not   Notify    Bankrupt   to   File   Petition   for   Discharge. 
§  2429.   Form   of   Petition   for   Discharge.    •  , 

§  2430.  Whether  Petition  to  Be  Verified. 
§  2431.  Ten  Days  Notice  by  Mail,  Sent. 
§  2432.  Notice  Also  by  Publication. 

DIVISION  3. 

§  2433.  Dismissal    of    Petition    for   Want    of   Prosecution    or   by    Bankrupt. 

§  2434.  No   Dismissal   for    Failure  to   Bring  on    Hearing  in   Opposition. 

§  2435.  No  Dismissal  by  Bankrupt  after  Hearing  of  Specifications  in  Oppo- 
sition. 

§  2436.  Dismissal  of  or  Failure  to  File  Petition  for  Discharge,  in  Effect  a 
Judgment   Denying  a   Discharge. 

§  2437.  Second  Petition  Not  Maintainable  after  Refusal  of  First,  Where  Debts 
Identical. 

§  2438.  Quaere,  Where  Debts  in  Subsequent  Bankruptcy  Partly  Same,  Partly 
New,  and  Discharge  in  First  Bankruptcy  Refused. 

§  2439.  Refusal  of  Discharge  under  Former  Bankruptcy  Act  Not  Res  Judi- 
cata   under   Present   Act. 

§  2440.  Refusal  of  Discharge  under  State  Bankruptcy  or  State  Insolvency  Law 
Not  Res  Adjudicata  as  to  Same  Debt  in  Federal  Bankruptcy. 

§  2441.  Refusal  of  Discharge  No  Bar  to  Subsequent  Bankruptcy  Petitions  nor 
Adjudications. 

§  2442.  Discharge  Not  Impeachable  Collaterally. 

§  2443.  But  Avoiding  Effect  of  Discharge  by  Showing  Debt  Excepted  from  Its 
Operation,  Not  "Collateral  Attack." 


1464  RivMINGTON   ON   BANKRUPTCY.  §   2420 

;§  2444.  Nor  "Attack"  at  All. 

§  2445.  Bankrupt    Cannot    Voluntarily    Surrender    Discharge. 
§  2446.  Staying  Discharge  to  Permit  Creditor  to  Perfect  Rights  against  Surety 
or   Exempt   Property. 

§  2417.  Petition  for  Discharge. — The  first  step  in  invoking  the  action 
cf  the  court  toward  the  discharge  of  debts  is  the  fiHng  by  the  bankrupt  of 
his  petition  for  discharge. ^ 

Division  1. 

Who  May  Apply  for  Discharge:? 

§  2418.  Any  Person  Adjudged  Bankrupt,  Competent  to  Apply 
for  Discharge. — Any  person  adjudged  bankrupt  is  entitled  to  apply  for 
discharge. - 

§  2419.  Corporations  Entitled  to  Discharge. — Thus,  corporations 
are  entitled  to  apply  for  discharge.^ 

§  2420.  Intervening  Insanity  Does  Not  Affect  Right  to  Discharge. 

— Thus,  the  intervening  insanity  of  the  bankrupt  does  not  afifect  the  right 
to  discharge. 

In  re  Miller,  13  A.  B.  R.  345,  133  Fed.  1017  (D.  C.  Pa.):  "By  §  29  of  the 
Act  of  1867,  the  bankrupt  was  obliged  to  take  a  specified  oath  before  he 
could  be  discharged,  and  for  this  reason  his  death  or  insanity  before  doing 
what  he  was  thus  bound  to  do  personally  prevented  the  discharge.  *  *  *  Nq 
oath  is  required  upon  the  part  of  the  bankrupt,  and  the  discharge  is  of  right, 
unless  certain  ojajections  thereto  are  made  to  appear.  These  are  specified 
in  clause  (b)  of  §  14,  as. amended  by  the  Act  of  1903,  and  none  of  them  is 
involved  in  the  present  inquiry.  Section  8,  however,  seems  to  be  precisely 
in  point:  'The  death  or  insanity  of  a  bankrupt  shall  not  abate  the  proceedings, 
but  the  same  shall  be  continued  and  concluded  in  the  same  manner,  so  far  as 
possible,  as  though  he  had  not  died  or  become  insane.'  To  my  mind,  this  is 
so  plain  as  not  to  require  construction.  'So  far  as  possible,'  the  proceedings  are 
to  go  on  and  be  concluded  as  if  the  bankrupt  had  not  died  or  become  insane; 
and  this  can  only  mean,  that  the  statute  is  not  unmindful  of  the  fact  that  his 
death  or  insanity  must  of  necessity  interfere  to  some  extent  with  the  ordinary 
method  of  procedure.  In  either  event  he  cannot  be  examined  by  the  cred- 
itors, he  cannot  himself  prepare  the  proper  schedules,  he  cannot  himself  claim 
his  exemptions,  or  take  the  necessary  steps  toward  his  final  discharge;  but, 
in  spite  of  these  obvious  difificulties — and  there  are  others  equally  obvious — the 
proceedings  are  to  go  on  'so  far  as  possible'  as  if  he  were  alive  or  sane.  His 
right  to  be  discharged  is  therefore  not  afTected,  for  it  is  only  possible  to  oppose 

1.  Papers  should  be  filed  with  the  district  clerk,  not  with  the  judge  directly. 
In  re  Sykes,  6  A.  B.  R.  264,  106  Fed.  669   (D.  C.  Tenn.). 

Various  local  rules  considered.  In  re  Sykes,  6  A.  B.  R.  264,  106  Fed.  669  (D. 
C.  Tenn.). 

2.  Bankr.  Act,  §  14  (a). 

3.  In  re  Marshall  Paper  Co.,  4  A.  B.  R.  468,  102  Fed.  872  (C.  C.  A.  Mass.). 


§    2426  PETITION   FOR  DISCHARGE.  1465 

such  discharge  successful!}^  by  proving  one  of  the  acts  described  in  section  14, 
and  such  proof  may  be  made  whether  the  bankrupt  be  sane  or  insane,  living  or 
dead.  In  this  conclusion  the  text-writers  and  the  decisions  agree,  so  far  as  I 
have  been  able  to  discover." 

But  a  guardian  ad  litem  should  be  appointed.'^ 

§  2421.  Neither  Does  Intervening  Death. — Neither  does  the  mter- 
vening  death  of  the  bankrupt  prevent  discharge  being  granted.^ 

§  2422.  No  Discharge  of  Individual  in  Partnership  Bankruptcy 
unless  Individual  Adjudication. — There  can  be  no  discharge  of  an  in- 
dividual member  in  a  partnership  bankruptcy  unless  the  individual  mem- 
ber has  been  adjudicated  bankrupt  individually.*^ 

Division  2. 

Time  for  Filing  Petition  for  Discharge,  Form  and  Notice. 

§  2423.  Discharge  Petition  to  Be  Filed  after  One  Month  and  be- 
fore End  of  Year  from  Adjudication. — The  bankrupt  may  file  his  pe- 
tition for  a  discharge  at  any  time  after  the  expiration  of  a  month  and  be- 
fore the  expiration  of  a  year  from  the  adjudication  of  bankruptcy.'^ 

§  2424.  Extension  of  Time  Granted. — Longer  time,  not  exceeding 
six  months,  may  be  granted  by  the  judge  if  the  bankrupt  was  unavoidably 
prevented  from  filing  it  within  that  time.^ 

§  2425.  But  to  Be  Applied  for  before  Expiration  of  Time. — Such 
extension  should  be  applied  for  before  the  expiration  of  the  additional  six 
months.  9 

§  2426.  And  Only  Because  "Unavoidably  Prevented;"  and  "Nunc 
Pro  Tunc"  Orders  to  Cover  Laches  Improper. — The  bankrupt  must 
have  been  "unavoidably  prevented"  from  filing  the  petition  in  time ;  and  a 
nunc  pro  tunc  order  will  not  be  granted  to  cover  laches  of  the  bankrupt, 
•and  will  only  be  granted  where  an  order  actually  was  nxade  and  there  was 
delay  in  the  entry  of  the  order  through  the  fault  of  the  court. ^^ 

4.  In  re  Miller,  13  A.  B.  R.  345,  133  Fed.  1017  (D.  C.  Pa.);  In  re  Burka,  5  A. 
B.  R.  843,  107  Fed.  674  (D.  C.  Tenn.). 

5.  Obiter,  In  re  Miller,  13  A.  B.  R.  345,  133  Fed.  1017  (D.  C.  Pa.);  analogously, 
In  re  Hicks,  6  A.  B.  R.  183,  107  Fed.  910  (D.  C.  Vt.)  ;  impliedly.  In  re  Parker,  1 

A.  B.  R.  615  (Ref.  Kans.). 

6.  In  re  Pincus,  17  A.  B.  R.  331,  147  Fed.  621   (D.  C.  N.  Y.);  In  re  Hale,  6  A. 

B.  R.   35,   107   Fed.   432   (D.   C.   N.   Car.). 

7.  Bankr.  Act,  §  14  (a). 

8.  Bankr.  Act,  §  14.     In  re  Fahy,  8  A.  B.  R.  355,  116  Fed.  239  (D.  C.  Iowa). 

9.  In  re  Wolf¥,  4  A.  B.  R.  74,  100  Fed.  430  (D.  C.  Calif.).  Compare,  analo- 
gously, as  to  filing  specifications  on  opposition,  post,  §  2454. 

10.  In  re  Wolfif,  4  A.  B.  R.  74,  100  Fed.  430  (D.  C.  Calif.);  In  re  Anderson,  14 
A.  B.  R.  221,-134  Fed.  319   (D.  C.  Mont.). 

"Nunc   Pro  Tunc   Entries:"     Order   must   actually   have   been   made   though 


1466  REMINGTON    ON    BANKRUPTCY.  §    2427 

In  re  Lewin,  14  A.  B.  R.  358,  133  Fed.  252  (D.  C.  Tex.):  "No  reason  is 
assigned  by  the  bankrupt  for  failing  to  seasonably  file  a  petition  for  discharge, 
except  that  'he  deferred  doing  so  until  the  latter  part  of  the  year,'  when  sick- 
ness in  his  family  prevented  him,  from  filing  the  same.  To  authorize  a  peti- 
tion for  discharge  to  be  filed  after  the  expiration  of  a  year  from  the  date  of  the 
order  of  adjudication  of  bankruptcy,  it  must  be  made  to  appear  that  the  bank- 
rupt was  unavoidably  prevented  from  filing  it  within  the  one  year  period. 
It  is  discretionary  with  the  judge  to  grant  the  application,  but  the  discretion 
to  be  exercised  in  determining  the  question  is  a  judicial  one,  and  not  a  discre- 
tion of  an  arbitrary  nature.  If  it  appear,  using  the  language  of  the  Act  of 
Congress,  that  the  bankrupt  was  'unavoidably  f)revented'  from  filing  his  appli- 
cation in  due  time,  he  should  be  permitted  to  file  it  within  the  additional  six 
months  allowed  by  law.  But  where  it  is  apparent  that  he  could  have  timely 
filed  it,  but  failed  to  do  so  for  reasons  wholly  inadequate,  the  application 
should  be  denied.  In  the  present  case  it  is  evident  that  the  bankrupt  could 
have  filed  a  petition  for  discharge  prior  to  the  time  that  sickness  appeared  in 
his  family,  and  no  reason  is  alleged,  nor  is  one  perceived,  why  it  could  not 
have  been  filed  while  the  family  were  ill.  It  does  appear  from  his  application 
that  the  bankrupt  resided  in  the  city  of  Hillsboro.  That  being  true,  his  at- 
torneys were  easily  accessible,  and  there  is  naught  in  the  record  to  show  that 
sickness  or  other  cause  prevented  them  from  preparing  a  petition  for  his  sig- 
nature  and  verification    during   the   twelve-months'   period." 

In  re  Harris  &  Algor,  15  A.  B.  R.  705  (D.  C.  Pa.):  "Leave  to  file  an  ap- 
plication after  the  period  of  twelve  months  from  the  date  of  the  adjudication 
will  not  be  granted  unless  it  be  shown  that  the  petitioner  was  unavoidably 
prevented  during  the  whole  of  the  period  during  which  the  application  for 
discharge   should   have   been   made   under   the    provisions   of   the   Act." 

§  2427.  No  Jurisdiction  to  Discharge,  on  Petition  Filed  after 
Eighteen  Months. — The  bankruptcy  court  has  no  jurisdiction  to  grant 
a  discharge  on  a  petition  filed  after  the  expiration  of  eighteen  months  from 
the  date  of  adjudication.  A  discharge  granted  on  a  petition  for  discharge 
filed  thereafter  is  null  and  void.^^ 

In  re  Fahy,  8  A.  B.  R.  354,  116  Fed.  239  (D.  C.  Iowa):  "As  I  construe  the 
statute,  this  is  a  limitation  on  the  jurisdiction  of  the  judge  over  the  matter  of 
discharge.  The  power  and  right  to  grant  a  discharge  efifectual  to  bar  the  en- 
forcement of  debts  is  conferred  by  the  statute,  and  is  governed  by  the  limita- 

not  entered.  Compare,  In  re  Wolff,  4  A.  B.  R.  74,  100  Fed.  430  (D.  C.  Calif.): 
''It  is  not  doubted  that,  where  an  order  has  been  actually  made,  and  through 
inadvertence  of  the  clerk  not  entered  at  the  proper  time,  the  court  may,  in 
furtherance  of  justice,  direct  that  the  entry  be  made  as  of  the  date  when  it 
should  have  been  entered;  but  the  court  is  not  vested  with  authority  to  make 
an  order  nunc  pro  tunc,  except  when  the  delay  in  making  such  order  has  re- 
sulted from  some  act  of  its  own."  Citing  Mitchell  z:  Overman,  103  U.  S.  64, 
and  Gray  v.  Brignardello,  1  Wall.  627:  "Where  the  delay  in  rendering  a  judg- 
ment or  a  decree  arises  from  the  act  of  the  court— that  is,  where  the  delay  has 
been  caused  either  for  its  convenience,  or  by  the  multiplicity  or  press  of  busi- 
ness, either  the  intricacy  of  the  questions  involved,  or  of  any  other  cause  not 
attributable  to  the  laches  of  the  parties — the  judgment  or  the  decree  may  be 
entered  retrospectively  as  of  a  time  when  it  should  or  might  have  been  en- 
tered up."    • 

11.  In  re  Knauer,  13  A.  B.  R.  503,  133  Fed.  805  (D.  C.  Iowa);  In  re  Wagner, 
15  A.  B.  R.  101,  139  Fed.  87  (D.  C.  Nev.). 


§    2429  PETITION   FOR  DISCHARGE.  1467 

tions  found  in  the  statute;  and  therefore,  unless  it  is  petitioned  for  within 
the  time  limit  fixed  by  §  14  of  the  act,  the  court  of  bankruptcy  is  without 
the  power  and  jurisdiction  to  grant  a  discharge.  If  the  court,  yielding  to  the 
equitable  considerations  pressed  upon  it,  should  grant  a  discharge  in  form  to 
the  bankrupt,  it  would  be  a  mistaken  kindness,  for  the  validity  of  the  dis- 
charge could  be  impeached  before  any  court  wherein  it  might  be  pleaded  as 
a  bar  to  a  claim,  on  the  ground  of  want  of  jurisdiction  in  this  court  to  entertain 
the  petition  for  discharge,  the  record  showing  on  its  face  that  the  petition 
was   not  filed  within   18  months   of  the   date  of  the   adjudication." 

Its  validity  may  be  attacked  in  any  court,  even  collaterally. ^^ 
But  if  it  does  not  appear  to  have  been  filed  after  the  eighteen  months 
but  only  after  the  year,  it  may  not  be  collaterally  impeached,  the  presump- 
tion obtaining  that  the  court  had  granted  leave  and  granted  it  on  sufficient 
showing.^3    Thus,  it  may  not  be  attacked  on  discharge  hearing. 

§  2428.  Referee  Need  Not  Notify  Bankrupt  to  File  Petition  for 
Discharge. — It  is  no  part  of  the  referee's  duty  to  inform  the  bankrupt 
of  the  time  the  year  will  expire.  And  notice  actually,  though  incorrectly, 
given  by  the  referee  will  not  toll  the  statute,  nor  extend  the  time.^^ 

§  2429.  Form  of  "Petition  for  Discharge, — The  petition  for  discharge 
miust  state  concisely,  in  accordance  with  the  provisions  of  the  act  and  the 
orders  of  the  court,  the  proceedings  in  the  case  and  the  acts  of  the  bank- 
rupt. ^^ 

12.  Obiter,  In  re  Fahy,  8  A.  B.  R.  354,  116  Fed.  239  (D.  C.  Iowa). 

13.  In  re  Haynes  &  Sons,  10  A.  B.  R.  13,  122  Fed.  560  (D.  C.  Pa.). 

14.  In  re  Knauer,  13  A.  B.  R.  503,  133  Fed.  805  (D.  C.  Iowa). 

15.  Gen.  Ord.  XXXI. 

The  prescribed  form  of  the  petition  for  discharge  is  as  follows: 
In  the  matter  of  ~] 

|-     In  Bankruptcy 

Bankrupt      J 

To  The  Honorable 

Judge  of  the  District  Court  of  the  United  States,  for  the  District  of : 

,  of ,  in  the  county  of and  State  of  , 

in  said  district,  respectfully  represents  that  on  the   day  of , 

last  past,  he  was  duly  adjudged  bankrupt  under  the  acts  of  Congress  relating 
to  bankruptc}^;  that  he  has  duly  surrendered  all  his  property  and  rights  of  prop- 
erty, and  has  fullv  complied  with  all  the  requirements  of  said  acts  and  of  the 
orders  of  the  court  touching  his  bankruptcy. 

Wherefore  he  prays  that  he  may  be  decreed  by  the  court  to  have  a  full  dis- 
charge from  all  debts  provable  against  his  estate  under  said  bankrupt  acts,   ex- 
cept such  debts  as  are  excepted  by  law  from  such  discharge. 
Dated  this   day  of ,  A.  D.,  19 


Bankrupt. 

There    is   also   a   prescribed   form   for    order    of   notice    thereon,   which   is   as 
follows: 

ORDER  OF  NOTICE  THEREON.' 
District  of  ,  ss. : 

On  this    day  of ...,  A.  D.,   19 ,  on   reading  the  fore- 
going petition,  it  is — 

Ordered  by  the  court,  that  a  hearing  be  had  upon  the  same  on  the   •  • 

day   of    ,    A.    D.,    19 ,    before    said    court,    at    ..,    in    said 

district,  at    o'clock  in  the    noon;  and  that  notice  thereof 


1468  REMINGTON    ON   BANKRUPTCY.  .  §    2430 

§  2430.  Whether  Petition  to  Be  Verified.— It  is  doubtful  whether 
the  petition  for  discharge  need  be  verified.  The  form  does  not  seem  to 
lequire  verification.^^ 

Nevertheless,  compare  explanation  of  omission  of  verification  from  forms 
under  law  of  1898,  In  re  Glass,  9  A.  B.  R.  394,  119  Fed.  509  (D.  C.  Tenn.) : 
"He  pointed  to  the  fact,  however,  that  Forms  Nos.  57  and  58  and  General 
Orders  31  and  32  do  not  prescribe  any  form  of  verification,  while  other  forms 
do  append  it  wherever  it  is  required.  But  this  is  only  a  fortuitous  circum- 
stance, I  think,  and  quite  indeterminate.  These  forms  naturally  are  fashioned 
on  those  under  the  act  of  1867,  which  required  verification  only  in  those  matters 
where  it  was  specifically  provided  by  that  act,  or  where  the  Supreme  Court, 
exercising  its  statutory  power  to  make  the  rules  of  practice  and  forms,  chose 
to  demand  it.  I  have  gone  over  those  forms,  and  compared  them  with  the 
forms  under  the  existing  act.  Generally,  each  verification  appended  to  the  old 
forms  was  required  in  terms  by  the  statute  of  1867,  though  sometimes  this  was 
not  so,  as  in  Form  No.  40,  for  the  removal  of  an  assignee,  which  prescribes 
verification  without  any  direction  of  the  statute;  while  Form  No.  52  of  the 
act  of  1898  exacts  none  for  the  removal  of  a  trustee.  The  precept  for  veri- 
fication does  not  appear  to  have  been  uniformly  guided  by  the  statute  in  either 
set  of  these  forms.  However  this  may  be,  the  command  of  the  statute  of 
1898  is  imperative  that  'all  pleadings  setting  up  matters  of  fact  shall  be  veri- 
fied by  oath.'  Section  18c.  The  omission  of  the  Supreme  Court,  therefore,  to 
prescribe  a  verification  for  a  petition  for  discharge  on  Form  No.  57 
of  1898,  or  for  the  specifications  in  opposition  thereto  on  Form  No.  58,  cannot 
override  this  plain  command  of  the  statute,  if  either  of  them  be  a  'pleading,' 
and  'sets  up  matters  of  fact.'  Under  the  act  of  1867,  there  being  no  such  re- 
quirement, a  verification  might  be,  and  often  was,  pretermitted  Sn  contracting 

be  published  in    ,  a  newspaper  printed  in  said  district,  and 

that  all  known  creditors  and  other  persons  in  interest  may  appear  at'  the  said 
time  and  place  and  show  cause,  if  any  they  have,  why  the  prayer  of  the  said 
petitioner  should  not  be  granted. 

And  it  is  further  ordered  by  the  court,  that  the  clerk  shall  send  by  mail  to 
all  known  creditors  copies  of  said  petition  and  this  order,  addressed  to  them 
at  their  places  of  residence  as  stated. 

Witness  the  Honorable   ,  Judge  of  the  said-  court,  and  the 

seal  thereof,  at   ,  in  said  district,  on  the   day  of  , 

A.  D.,  19 

(Seal  of  the  court)  ' 


Clerk.  _ 
hereby  depose,  on  oath,  that  the  foregoing  order  was  published  in 

the  on  the  following  days,  viz. : 

On  the day  of and  on  the day  of , 

in  the  year  19 


District  of 

,   19 

Personally  appeared   ,  and  made  oath  that  the  foregoing  statement 

by  him  subscribed  is  true. 


(Official  Character) 

I   hereby   certify  that   I    have    on   this    day   of    ,    A.    D., 

19 ,  sent  by  mail  copies  of  the  above  order,  as  therein  directed. 


Clerk. 
16.    Obiter,-In  re  Jemison  Mercantile  Co.,  7  A.  B.  R.  588,  112  Fed.  966  (C.  C. 
A.  Ala.). 


f^   2431  PETITION   FOR  DISCHARGE.  1469 

the  forms  of  1867.  And  it  is  apparent  that  the  draftsman  of  the  new  forms  of 
1898  factitiously  followed  the  forms  of  1867  in  the  omission  of  a  verification 
without  noticing  this  distinction  between  the  two  statutes.  Thus  he  made 
Forms  No.  57  and  No.  58  of  1898  conform,  in  respect  of  this  absence  of  verifi- 
cation, to  Forms  No.  51  and  No.  53  of  1867.  But  in  the  one  case  the  statute 
permitted  the  omission,  and  in  the  other  it  does  not.  Therefore  it  does  not 
appear  that  in  prescribing  these  forms  the  Supreme  Court  in  1898  has  delib- 
erately ruled  that  the  specifications  in  opposition  to  a  discharge  are  not  'a 
pleading,'   and    do    not    require    a   verification,    under    §    18c." 

Moreover  the  petition  for  discharge  is  more  in  the  nature  of  a  mere  mo- 
tion than  it  is  of  a  petition ;  nothing  is  to  be  proved ;  simply  the  machinery 
of  the  court  is  to  be  set  in  motion  to  grant  the  discharge.  The  discharge 
"shall"  be  granted  when  applied  for,  unless  objecting  parties  prove  the 
existence  of  facts  sufficient  to  bar  it,  the  only  "petition,"  if  there  be  any 
at  all,  thus  being  the  specifications  of  the  creditors  of  their  grounds  of 
opposition  to  the  discharge. 

Contra,  obiter,  In  re  Glass,  9  A.  B.  R.  396,  119  Fed.  509  (D.  C.  Tenn.) :  "A 
petition  for  discharge  avers,  inter  alia,  that  the  petitioner  'has  duly  sur- 
rendered all  his  property.'  That  is  a  fact  outside  the  record,  known  possibly 
only  to  himself  as  to  its  truth;  and  so  it  would  seem  that  both  by  the  statute 
and  according  to  the  analogies  it  should  be  verified  by  his  oath,  although  this 
form  does  not  call  for  it." 

§  2431.  Ten  Days  Notice  by  Mail,  Sent. — Upon  its  filing,  either  the 
referee  in  charge  of  the  estate,  or  the  clerk  himself,  sends  out  ten  days 
notice  by  mail  to  all  creditors  of  the  time  and  place  fixed  by  the  judge  for 
hearing  the  petition.^"^  If  the  referee  sends  them  out,  .as  is  usually  the 
case,  he  does  so  upon  receipt  of  a  certificate  of  the  clerk  that  the  petition 
has  been  filed. 

17.    Bankr.  Act,  §  58  (a)   (2).     See  ante,  §  365.   • 

Form  of  Discharge  Notice. — The  form  of  such  notice  to  creditors  is  as  follows: 
In   the   District   Court   of  the   United   States, 

For  the District   of    

Division 

In  the  matter  of  "I 

>-    In  Bank 

Bankrupt      J 

Notice  of  Hearing  of  Bankrupt's  Petition  for  Discharge  to  all  Creditors  of 
said  Bankrupt: 

Take  notice  that  a  petition  has  been  filed  in  said  court  by   of  the 

county  of    ,  in  said  district,  who  has  been  duly  adjudged  a  bankrupt 

under  the  Act  of  Congress  of  July  1,  1898,  for  a  discharge  from  all  his  debts, 

and    other    claims    provable    under    said    Act,    and    that    the    day    of 

,  19 ,  at   o'clock   M.  is  assigned  for  the  hearing  of 

the   same   before   the    Hon ,   Judge    of   said   Court,   at   the 

United  States  District  Court  of  said  district,  when  and  where  you  may  attend 
and  show  cause,  if  any  you  have,  why  the  prayer  of  said  petition  should  not  be 
granted. 


ruptcy 


Referee  in  Bankruptcy. 
Where  Schedules  Give  No  Addresses. — Where  the  schedules  recite  that  the 
addresses  of  none  of  the  creditors  are  known  and,  as  a  consequence,  no  notices 
are  sent  by  mail,  there  should  be  a  showing  made  to  the  court  that  due  diligence 
has  been  exercised  to  ascertain  the  addresses,  else  the  court  should  not  hear 
the  discharge  petition.  In  re  Dvorak,  6  A.  B.  R.  66,  107  Fed.  76  (D.  C.  Iowa). 
The  court  in  this  case  said  no  jurisdiction  was  obtained. 


1470  REMINGTON    ON    BANKRUPTCY.  §    2436 

A  "certificate  of  conformity,"  as  required  under  the  law  of  1867,  is  not 


necessary. 


IS 


§  2432.  Notice  Also  by  Publication. — The  statute  does  not  expressly 
provide  that  notice  by  publication  of  the  discharge  is  to  be  given ;  but  the 
fact  that  the  Supreme  Court's  Form  No.  57  provides  for  an  order  direct- 
ing publication  of  notice,  might  indicate  that  such  publication  ought  always 
to  be  given. 

Inferentially  and  obiter,  Nat'l  Bk.  v.  Moyses,  8  A.  B.  R.  10,  186  U.  S.  181: 
"Form  No.  57  gives  the  form  of  petition  for  discharge  and  the  order  for  hearing 
to  be  entered  thereon,  requiring  notice  to  be  published  in  a  designated  news- 
paper in  the  district,  and  'that  the  clerk  shall  send  by  mail  to  all  known  cred- 
itors copies  of  said  petition  and  this  order,  addressed'  to  them  at  their  places 
of   residence   as    stated.' " 

And  such  notice  by  publication  would  seem  to  be  absolutely  requisite 
to  effect  the  discharge  of  those  debts  where  the  names  or  addresses  of  the 
creditors  are  unknown. 

Division  3. 

DisMissAi,  OF   Petition   for   Discharge;   Second   Petition   for   Dis- 
charge: AND  Res  Adjudicata. 

§  2433.  Dismissal  of  Petition  for  Want  of  Prosecution  or  by 
Bankrupt. — A  petition  for  discharge  may  be  dismissed  for  want  of  pros- 
ecution;^^ or  by  the  bankrupt. 

§  2434.  No  Dismissal  for  Failure  to  Bring  on  Hearing  in  Opposi- 
tion.— Dismissal  of  the  bankrupt's  petition  for  discharge  for  want  of  pros- 
ecution for  mere  dilatoriness  in  bringing  it  on  for  hearing  upon  specifica- 
tions of  objections  thereto,  is  improper,  where  the  bankrupt's  petition  itself 
was  filed  in  due  time.^'^ 

§  2435.  No  Dismissal  by  Bankrupt  after  Hearing  of  Specifica- 
tions in  Opposition. — A  bankrupt  has  no  absolute  right  to  "dismiss  his 
petition  for  discharge  after  hearing  has  been  had  upon  specifications  in 
opposition  thereto  and  the  opposing  creditors  have  established  their  right 
to  an  order  denying  discharge.-^ 

§  2436.  Dismissal  of  or  Failure  to  File  Petition  for  Discharge,  in 
Eff"ect  a  Judgment  Denying  a  Discharge. — The  dismissal  of  the  peti- 
tion for  discharge  for  want  of  'prosecution,  and  also  the  failure  to  file  a 

18.  See  contra  practice,  Mahoney  v.  Ward,  3  A.  B.  R.  770,  100  Fed.  278  (D.  C. 
N.  Car.). 

19.  In  re  Lederer,  10  A.  B.  R.  493,  125  Fed.  96  (D.  C.  N.  Y.). 

20.  In  re  Wolff,  13  A.  B.  R.  95,  132  Fed.  396  (t).  C.  Calif.). 

21.  In  re  Henschcl,  12  A.  B.  R.  31  (Special  Master,  N.  Y.). 


§  2437  PETITION  For  discharge.  1471 

petition   for  discharge,  are  in    substance    and    effect    judgments    denying 
discharge. -2 

Kuntz  V.  Young,  12  A.  B.  R.  505,  131  Fed.  719  (C.  C.  A.  Minn.):  "The 
failure  of  the  bankrupt  to  apply  for  a  discharge  from  his  debts  in  the  involun- 
tary proceeding  within  twelve  months  after  the  adjudication  foreclosed  his 
rig'ht  to  such  a  discharge.  It  is  only  within  that  time  that  he  may,  under  the 
bankruptcy  law,  make  a  lawful  application  'to  be  relieved  from  his  debts.  The 
record  of  his  failure  to  make  the  application  in  that  proceeding  was,  in  ef- 
fect, a  judgment  by  default  in  favor  of  his  creditors  to.  the  effect 
that  he  was  not  entitled  to  a  discharge  from  their  claims.  A  judg- 
ment by  default  renders  the  issue  as  conclusively  res  adjudicata  as  a  judgment 
upon  a  trial.  The  result  is  that  the  question  whether  or  not  the  bankrupt 
was  entitled  to  be  discharged  from  the  claims  of  the  creditors  scheduled  and 
provable  in  the  involuntary  proceeding  was  conclusively  determined  in  an 
action  between  them  and  the  bankrupt  by  the  record  of  his  failure  to  apply 
for  a  discharge  in  that  iWoceeding.  But  the  parties  to  the  voluntary  were  the 
same  as  to  the  involuntary  proceeding,  for  Kuntz  scheduled  the  same  claims 
and  creditors,  and  the  trustee,  who  objected  to  his  discharge,  was  the  legal 
representative  of  the  latter.  The  bankrupt's  application  for  a  discharge  in  the 
voluntary  proceeding  presented  the  same  issue  which  had  been  conclusively 
determined  against  him  in  the  involuntary  proceeding,  and  there  was  no  error 
in  the  refusal  of  the  court  below  tp  reverse  the  former  judgment  and  grant  the 
application. 

"The  denial  of  an  application  for  a  discharge  from  debts  provable  in  pro- 
ceedings under  one  petition  in  bankruptcy  under  the  Act  of  1898  renders  the 
issue  of  a  right  to  a  discharge  from  those  debts  in  a  proceeding  under  a  sub- 
sequent petition  res  adjudicata.  A  failure  to  apply  for  a  discharge  within 
twelve  months  after  adjudication  in  the  earlier  proceeding  has  the  same 
effect.  Gilbert  v.  Hebard,  8  Mete.  129;  In  re  Drisko,  Fed.  Cas.  No.  4,090; 
In  re  Herrman  (D.  C),  4  Am.  B.  R.  139,  102  Fed.  753,  754,  106  Fed.  987, 
988." 

§  2437.  Second  Petition  Not  Maintainable  after  Refusal  of  First, 
Where  Debts  Identical. — A  second  petition  for  discharge  may  not  be 
maintained  in  the  same  proceedings,  nor  in  new  proceedings,  where  the 
debts  are  identical,  after  the  first  petition  has  been  denied,  or  not  filed  at 
all.  The  first  denial  is  res  adjudicata  and  binding  on  both  parties,  and  a 
second  petition  is  vexatious  and  useless  repetition. ^^ 

In  re  Weintraub,  13  A.  B.  R.  711,  133  Fed.  1000  (D.  C.  N.  J.):  "On  June 
20,  1899,  Louis  Weintraub,  Benjamin  Lewis  and  Samual  Golden,  partners 
trading  as  Weintraub,  Golden  &  Lewis,  were  adjudged  bankrupts  in  an 
involuntary  proceeding  instituted  in  the  United  States  District  Court  for  the 
Southern  District  of  New  York.  They  did  not  apply  for  an  order  of  discharge 
within  the  time  limited  by  the   Bankruptcy  Act.     On  December  30,  1903,  they 

22.  In  re  Weintraub,  13  A.  B.  R.  711,  133  Fed.  1000  (D.  C.  Mass.);  In  re 
Wolff,  13  A.  B.  R.  95,  132  Fed.  396  (D.  C.  Calif.);  In  re  Semons,  15  A.  B.  R.  822 
(C.  C.  A.  N.  Y.);  In  re  Kuffler,  11  A.  B.  R.  469,  127  Fed.  125  (C.  C.  A.  N.  Y.). 

23.  A  fortiori,  Kuntz  v.  Young,  12  A.  B.  R.  505,  131  Fed.  719  (C.  C.  A.  Minn.). 
Contra,  if  in  entirely  new  proceedings.  In  re  Claff,  7  A.  B.  R.  128,  111  Fed.  506 
(D.  C.  Mass.). 


1472  REMINGTON    ON    BANKRUrTCY.  §   2437 

filed  their  voluntary  petition  in  bankruptcy  in  this  court,  setting  forth,  as 
their  affidavits  admit  in  the  schedules  annexed  to  their  -petition,  the  same 
debts  that  appear  in  the  New  York  proceeding.  The  object  of  the  suit  in  this 
court  is  to  secure  a  discharge  from  the  same  debts  from  which  the  bankrupts 
failed  to  secure  a  discharge  in  the  New  York  court.  The  proceeding  in  the 
New  York  court,  furthermore,  has  not  been  terminated.  On  March  14,  1904, 
the  above  facts  having  been  presented  to  the  late  Judge  Kirkpatrick,  of  this 
court,  he  made  an  order  staying  and  enjoining  the  bankrupts  from  taking  any 
further  proceedings  upon  their  voluntary  petition  in  this  court  pending  the 
determination  of  the  proceedings  in  the  New  York  court.  The  counsel  for 
the  bankrupts  now  applies  for  an  order  vacating  the  above  mentioned  order 
of    March    14,    1904. 

"The  application  must  be  denied.  It  is  a  settled  rule  of  law  that,  where  a 
bankrupt  has  failed  to  apply  for  his  order  of  discharge  within  the  time  limited 
by  the  statute,  his  right  to  such  order  is  res  judicata,  and  he  cannot  by  any 
subsequent  proceedings  secure  a  discharge  from  the  debts  provable  in  the 
former  proceedings.  See  Kuntz  v.  Young,  12  Am.  B.  R.  505  (C.  C.  A.), 
131   Fed.   719. 

"An    order    will    be    signed    denying   the    motion    of    the    bankrupts." 

In  re  Royal,  7  A.  B.  R.  636,  113  Fed.  146  (D.  C.  N.  Y.) :  "*  *  *  after  his 
first  petition  is  denied,  after  investigation  of  its  merits." 

A  fortiori,  In  re  Feigenbaum,  9  A.  B.  R.  595,  121  Fed.  69  (C.  C.  A.  N.  Y., 
reversing  7  A.  B.  R.  339):  "The  simple  »iuestion  presented  by  this  review 
is  whether  a  bankrupt,  who  has  been  refused  a  discharge,  after  full  hearing, 
on  the  ground  that  he  has  fraudulently  concealed  assets  from  the  trustee,  will 
be  permitted,  within  a  few  months  thereafter,  to  file  a  second  petition  alleging 
the   same    facts    and    prosecute    a    new   application    for    a    discharge? 

"It  is  admitted  that  the  debts  and  assets  in  the  two  petitions  are  identical 
except  that  there  is  a  difference  of  $8  in  the  amount  of  property  claimed  as  ex- 
empt. There  is  no  attempt  to  disguise  the  fact  that  the  purpose  of  the  present 
proceeding  is  to  obtain  the  discharge  which  the  court  refused  to  grant.  The 
judgment  of  the  court  refusing  the  discharge  in  the  first  proceeding  remains 
in   full   force,   no   appeal   having  been  taken. 

"We  do  not  deem  it  necessary  to  decide  whether  the  bankruptcy  proceedings 
should  be  dismissed  in  such  circumstances,  but  we  are  clearly  of  the  opinion 
that  the  bankrupt  should  be  restrained  from  filing  and  prosecuting  a  second 
application  for  a  discharge.  Not  only  should  the  court  of  bankruptcy  pro- 
tect the  creditors  from  an  attempt  to  retry  an  issue  already  tried  and  deter- 
mined between  the  same  parties,  but  the  court,  for  its  own  protection,  should 
arrest,  in  limine,  so  flagrant  an  attempt  to   circumvent  its   decrees. 

"Assuming  that  this  proceeding  is  allowed  to  go  on,  what  will  be  the  result? 
The  bankrupt  will  present  a  petition  for  discharge;  the  creditors  will  file 
specifications  alleging  the  same  grounds  of  opposition,  the  issue  thus  joined 
will  be  referred  in  due  course  and  the  referee  and  the  judge  will  thereafter 
be  called  upon  to  decide  the  same  questions  which  have  already  been  determined, 
upon  the  same  proof  and  between  the  same  parties.  It  is  true  that  in  such 
circumstances  it  is  probable  that  the  same  conclusion  will  be  reached,  but  why 
should  the  creditors  be  harassed  by  further  proceedings.  Why  should  they 
be  compelled  to  employ  counsel  and  expend  their  money  in  trying  again  and 
again  a  question  upon  which  the  bankrupt  has  had  his  day  in  court?  If  his 
contention  be  correct  there  is  nothing  -to  prevent  him  from  filing  a  third  peti- 
tion if  his  discharge  be  again  refused  and  so  on  ad  infinitum. 


§    2437  PETITION   FOR  DISCHARGE.  1473 

"A  proceeding  in  bankruptcy  is  in  the  nature  of  a  bill  in  equity  in  which  the 
bankrupt;  is  complainant  and  the  creditors  are  defendants. 

"Where  a  discharge  is  refused  on  the  merits  the  judgment  inures  to  the 
benefit  of  all  the  creditors.  Both  parties  are  bound  by  it  and  neither  party 
should   be   permitted   to   try   the   same  question   again;    it   is   res   judicata. 

"We  have  proceeded  upon  the  assumption  that  in  the  present  proceeding 
the  creditors  can  avail  themselves  of  the  same  objections  interposed  in  the 
former  proceedings  and  sustained  there.  If  for  technical  reasons  or  otherwise 
they  are  prevented  from  doing  this  the  iniquity  of  this  attempt  to  procure  a  dis- 
charge is  still  more  apparent.  It  is  the  contention  of  the  bankrupt's  counsel 
that  this  is  an  entirely  new  and  distinct  proceeding  and  in  this  view  he  is  un- 
doubtedly correct. 

"Can  the  misconduct  of  the  bankrupt  in  the  former  proceeding  be  imported 
into  this  proceeding?  Suppose  the  creditors  should  again  interpose  the  ob- 
jection that  the  bankrupt  has  'Knowingly  and  fraudulently  concealed  while  a 
bankrupt  *  *  *  from  his  trustee  property  belonging  to  his  estate,'  can  they 
prove  the  allegation  by  showing  that  he  has  been  guilty  of  this  misconduct 
in  some  former  bankruptcy?  Does  not  the  statute  refer  to  the  pending  pro- 
ceeding and  the  trustee  then  in  esse?  If  so,  it  will  be  at  once  apparent  that 
the  creditors  may,  in  many  instances,  be  remediless  and  the  second  petition 
may  be  used  to  consummate  the  most  glaring  frauds. 

"The  same  observations  are  true  regarding  the  failure  to  keep  books,  etc. 
This  must  be  done  with  intent  to  conceal  the  bankrupt's  true  financial  condition 
and  in  contemplation  of  bankruptcy.  What  bankruptcy?  The  present  or  some 
previous  bankruptcy? 

"Other  considerations  of  a  similar  nature  might  be  suggested  as  showing  the 
questions  which  may  arise  if  this  unjustifiable  proceeding  be  permitted  to  con- 
tinue. They  are  advanced  tentatively  and  without  intending  to  express  any 
opinion  as  to  whether  they  are  tenable  or  not,  our  sole  purpose  being  to  demon- 
strate the  proposition  that  the  creditors  having  succeeded  upon  the  question  of 
the  discharge  ought  not  to  be  called  upon  to  face  a  situation  where  they  may  be 
defeated    on   technicalities    by   a   clever   manoeuver   of   the   bankrupt. 

"All    the  facts   constituting  the   estoppel   are   before   the   court;    they   cannot    ' 
be  changed  by  any   subsequent  proceedings.     The  bankrupt  is   not   entitled  to 
prosecute  proceedings  for  a  discharge,  the  debts  and  assets  being  the  same  as 
in  the   former  case,  and,  therefore,  he  should  not  be  permitted  to   begin   such 
proceedings. 

"We  are  of  the  opinion  that  fhe  stay,  in  so  far  as  it  restrained  the  bankrupt 
from  filing  a  petition  for  a  discharge  should  have  been  continued,  and  to  this 
extent   the   order   of  the    District   Court   is   reversed,   with    instructions    to   pro- 
ceed in  accordance  with  this  opinion. 
"All  concur." 

It  has  been  held  that  the  entire  subsequent  bankruptcy  proceedings 
may  be  thus  dismissed,  and  the  dismissal  need  not  be  merely  of  the  peti- 
tion for  discharge. 2^  But  this  could  not  be  the  true  rule  where  there  are 
assets  to  be  administered,  for  the  right  of  dismissal  in  these  cases  is  based 
on  res  judicata,  which  depends,  in  its  turn,  of  course,  upon  identity  of  not 
only  the  parties  and  cjuestions  but  also  of  the  subject  involved.    Identity  of 

24.    Kuntz  V.  Young,  12  A.  B.  R.  505,  131  Fed.  719  (C.  C.  A.  Minn.). 
2  Rem  B— 18 


1474  REMINGTON    ON   BANKRUPTCY.  §    2438 

debts  is  sufficient  to  warrant  the  dismissal  of  a  second  petition  for  dis- 
charge after  refusal  of  the  first,  but  if  there  are  assets,  there  are  cer- 
tainly subjects  for  administration  in  bankruptcy  and  consecjuently  reason 
for  not  dismissing  the  entire  proceedings.-^ 

§  2438.  Quaere,  Where  Debts  in  Subsequent  Bankruptcy  Partly- 
Same,  Partly  New,  and  Discharge  in  First  Bankruptcy  Refused.— 

Where  the  debts  in  the  subsequent  bankruptcy  are  in  part  the  same  as  in 
the  first  bankruptcy,  and  in  part  are  different,  a  difficult  question  arises 
as  to  the  operation  of  the  refusal  of  the  discharge  in  the  first  proceedings. 
The  bankrupt  undoubtedly  has  a  right  to  apply  for  discharge  from  the 
new  debts,  and  the  new  creditors  may  have  no  ground  for  barring  him 
therefrom ;  but  should*  the  exercise  of  that  right  entail  upon  the  old  cred- 
itors a  relitigation  of  the  entire  subject  of  discharge?  The  former  re- 
fusal of  discharge  is  not  available  as  a  statutory  bar  to  the  new  dis- 
charge, for  it  is  only  the  "granting"  of  a  discharge  (and  in  voluntary  pro- 
ceedings within  six  years)  that  is  a  "bar."  Moreover,  the  acts  which 
barred  the  first  discharge  were  committed  in  another  bankruptcy  than 
the  present  and  probably  are  not  urgeable  in  the  present  bankruptcy.  At 
the  same  time,  the  debts  of  the  old  creditors  are  still  "provable"  in  the 
second  bankruptcy,  and  hence  are  dischargeable  thereby.  What,  then, 
is  the  course  to  be  pursued  ?  There  are  two  possible  courses  open.  Either 
the  old  creditor  may  urge  "res  judicata"  in  reply  to  the  bankrupt's  defense 
of  discharge  when  the  old  creditor  resorts  to  legal  proceedings  to  enforce 
his  claim  against  the  bankrupt;  in  which  event,  however,  it  might  rightly 
be  contended  that  the  debt  was  "provable"  in  the  second  bankruptcy  and 
was  not  one  of  those  excepted  from  the  operation  of  discharge,  and  hence 
was  discharged  by  the  second  bankruptcy,  even  if  not  by  the  first  bank- 
ruptcy. 

In  re  Clai¥,  7  A.  B.  R.  128,  111  Fed.  506  (D.  C.  Mass.):  "Claff  was  adjudicated 
bankrupt  in  1899,  upon  a  voluntary  petition.  His  discharge  was  refused  for 
fraudulent  concealment  of  assets.  In  1900  he  filed  a  second  petition,  and  seeks 
a  discharge  thereunder.  That  his  discharge  under  the  second  petition,  if  ob- 
tained, will  be  no  bar  to  a  suit  upon  a  debt  scheduled  under  the  first  commis- 
sion, and  not  proved  under  the  second,  seems  clear.  Gilbert  z'.  Hebard,  8 
Mete.  129;  In  re  Drisko,  2  Low.  430,  Fed.  Cas.  No.  4,090.  See  Dean  v.  Jus- 
tices, 173  Mass.  453,  53  N.  E.  893.  But  this  fact  does  not  prevent  the  bank- 
rupt from  filing  a  second  petition,  or  from  getting  a  discharge  thereunder,  for 
whatever  the  discharge  may  be  worth.  In  re  Drisko,  above  cited.  The  dis- 
charge is  granted,  and  no  exception  will  be  made  therein  of  debts  scheduled 
under  the  earlier  commission.  It  is  more  convenient  to  make  the  discharge 
a  general  one,  and  to  leave  its  effect  to  be  determined  by  subsequent  proceed- 
ings. In  re  Marshall  Paper  Co.,  4  Am.  B.  R.  468,  43  C.  C.  A.  38,  102  Fed. 
872  and  cases  cited;    In  re  Black  (D.   C),  4  Am.   B.   R.   471,  note,  97   Fed.   493." 

25.  Compare,  In  re  Feigenbaum,  9  A.  B.  R.  595,  121  Fed.  69  (C.  C.  A.  N.  Y.). 
Compare,  In  re  Kuffler,  18  A.  B.  R.  17,  151  Fed.  12  (C.  C  A.  N.  Y.,  reversing  16 
A.  B.  R.  305).     Compare,  ante,  §  2416,  and  post,  §  2680. 


§   2438  PETITION   FOR  DISCHARGE.  1475 

Cr,  on  the  other  hand,  the  court  in  its  order  of  discharge  in  the  second 
bankruptcy,  might  expressly  except  all  debts  provable  in  the  first  bank- 
ruptcy wherein  discharge  had  been  refused,  although,  to  be  sure,  power 
to  make  exceptions  in  orders  of  discharge  is  doubtful. 

The  latter  seems  to  be  the  proper  course;  for  the  defense  is  the 
defense  of  res  judicata  as  to  the  right  to  a  discharge  itself  and  not  as  to 
the  dischargeability  of  the  particular  debt.  Were  the  debt  not  "provable," 
or  were  it  one  of  those  excepted  from  the  operation  of  discharge  by  §  17 
of  the  act,  it  would  be  proper  to  wait  until  it  was  sought  to  enforce  the 
debt,  then  to  urge  that  it  was  not  within  those  debts  enumerated  as  dis- 
chargeable ;  but,  on  the  contrary,  it  is,  in  fact,  "provable"  and  was  not  "ex- 
cepted" and  therefore  is  discharged  unless  the  decree  of  discharge  itself 
is  limited. 2*^ 

In  re  Kuffler,  18  A.  B.  R.  17,  151  Fed.  12  (C.  C.  A.  N.  Y.,  reversing  16  A. 
B.  R.  305) :  ''If  the  application  in  the  court  below  had  been  directed  to  obtain- 
ing a  stay  of  any  application  for  a  discharge  from  the  debts  scheduled  in  the 
former  proceeding,  and  the  court  below  had  limited  its  order  accordinglj',  we 
should  have  no  difficulty  in  affirming  the  order.  Obviously  it  was  the  prin- 
cipal purpose  of  the  present  proceeding  to  enable  the  bankrupt  to  renew  his 
unsuccessful  application  to  be  discharged  from  his  debts  in  the  former  pro- 
ceeding, and  to  that  extent  to  resuscitate  the  former  proceedings.  If  this  were 
permitted,  the  creditors  who  successfully  opposed  his  dicharge  in  the  former 
proceeding  would  be  compelled  to  litigate  over  again  the  issue  which*  had  been 
finally  adjudicated  in  their  favor.  They  should  not  be  subjected  to  this  hard- 
ship. If  any  of  these  creditors  should  seek  to  enforce  by  an  action  his  debt 
against  the  after-acquired  property  of  the  bankrupt,  not  having  procured 
a  stay  in  the  second  bankruptcy  proceeding,  he  might  be  inet  with  a  discharge 
in  that  proceeding  as  a  bar  to  his  action.  Under  the  Act  of  1898,  the  denial 
of  an  application  for  a  discharge  from  debts  provable  in  one  proceeding  in  bank- 
ruptcy renders  the  issue  of  the  right  to  a  discharge  res  adjudicata  as  to  such  debts 
in  a  subsequent  proceeding;  and  a  faiktre  of  the  bankrupt  to  apply  for  a  discharge 
,within  twelve  months  after  the  adjudication  in  the  earlier  proceeding  has  the 
same  effect.  Kuntz  v.  Young,  12  Am.  B.  R.  505,  131  Fed.  719.  Where  the 
same  debts  and  the  same  assets'  are  scheduled  in  the  two  proceedings,  one  be- 
ing commenced  subsequent  to  the  termination  of  the  other,  it  is  manifest  that 
the  last  proceeding  is  merely  an  attempt  to  evade  the  former  one.  To  permit 
it  would  be  to  sanction  a  fraud  upon  the  court.  As  this  court  said  in  In  re 
Fiegenbaum,  9  Am.  B.  R.  595,  121  Fed.  69. 

'■'  'Not  only  should  the  court  of  bankruptcy  protect  the  creditors  from  an  at- 
tempt to  retry  an  issue  already  tried  and  determined  between  the  same  parties, 
but  the  court,  for  its  own  protection,  should  arrest,  in  limine,  so  flagrairt  an 
attempt  to  circumvent  its   decrees.' 

"The  present  case  differs,  however,  from  the  Fiegenbaum  Case,  because  in 
that  case  the  second  proceeding  was  commenced  within  a  very  short  time 
after  the  denial  of  the  bankrupt's  discharge  in  the  former  proceeding,  while 
here  two  years  have  elapsed;  and^it  differs  in  the  further  and  more  important 
fact  that  some  debts  are  scheduled  in  the  second  proceeding  which  were  not 
provable  in  the  first. 

"It  is  the  right  of  an  insolvent  debtor  who  may  have  acquired  property  and 

26.    Compare,  post,  §  2680. 


1476  REMINGTON    ON   BANKRUPTCY.  §   2439 

incurred  debts  subsequent  to  an  adjudication  of  Uankruptcy  to  prosecute  a 
second  proceeding  to  obtain  his  discharge.  The  effect  of  an  order  like  the 
one  under   review  would   be   to   deprive   hiin   of  that   right." 

§  2439.  Refusal  of  Discharge  under  .Former  Bankruptcy  Act  Not 
Res  Judicata  under  Present  Act. — But  the  refusal  of  a  discharge  under 
a  former  bankruptc}-  act  is  not  res  ad  judicata  upon  the  question  of  dis- 
charge under  the  present  act. 

In  re  Herrman.  4  A.  B.  R.  139,  102  Fed.  753,  106  Fed.  987  (D.  C.  N.  Y.) : 
"Proceedings  in  bankruptcy  are*  doubtless  in  the  nature  of  a  suit  *  *  * 
and  no  doubt  the  refusal  of  a  discharge  under  the  Act  of  1867  would  be  res 
judicata  upon  any  subsequent  application  for  a  discharge  under  that  act  as 
respects  the  same  debt;  and  similarly,  while  a  former  proceeding  is  pending, 
no  subsequent  application  for  a  discharge  from  the  same  debts  would  be  enter- 
tained under  the  same  act.  But  these  rules,  in  my  judgment,  have  no  appli- 
cation to  proceedings  for  a  discharge  under  wholly  independent  and  widely 
separated  statutes  of  bankruptcy,  like  those  of  1867  and  of  1898.  The  pro- 
visions regulating  discharges  are  quite  different  in  the  two  statutes;  so  that, 
though  a  discharge  were  refused  under  the  Act  of  1867,  the  bankrupt  upon  the 
same  facts  might  be  entitled  to  a  discharge  under  the  Act  of  1898. 

"The  facts  stated  in  the  moving  affidavits  and  the  records  of  this  court, 
furnish  a  strong  presumption  that  the  proceedings  for  a  discharge  under  the 
former  act  were  virtually  abandoned  in  1879,  as  the  bankrupt  was  not  likely 
to  succeed  in  obtaining  it.  There  were  then  numerous  specifications  in  oppo- 
sition to  his  discharge,  two  of  which  were  the  same  as  are  raised  in  the  pres- 
ent proceeding,  and  which  would  bar  a  discharge  under  the  present 
act  if  proved.  The  former  proceeding,  which  has  never  been  determined  by 
the  entry  of  any  order  refusing  a  discharge,  can  have  no  greater  force  as  a  bar 
to  the  present  proceeding,  however,  than  if  an  order  of  refusal  had  been  in 
fact  entered.  But,  even  if  such  an  order  had  been  entered,  and  even  if  the 
refusal  was  solely  upon  grounds  which  would  bar  a  discharge  under  the  pres- 
ent act,  the  debtor  would,  in  my  judgment,  still  be  at  liberty  to  proceed  for  a 
discharge  under  the  Act  of  1898  without  reference  to  the  Act  of  1867,  or  any 
proceeding  under  it;  and  his  right  to  a  discharge  now  must  be  determined  by 
the  provisions  of  the  present  act  alone. 

"The  only  effect  of  a  refusal  of  a  discharge  under  the  old  Act,  was  to  ex- 
clude the  debtor  from  all  relief  under  that  act,  and  to  leave  his  debts  existing 
as  before.  The  Act  of  1898,  passed  twenty  years  after  the  repeal  of  the  Act  of 
1867,  marks  a  new  beginning.  It  is  wholly  independent  of  the  former  act.  It 
was  designed  to  give  to  debtors  a  fresh  start  in  life,  freed  from  the  weight  "of 
all  former  debts,  except  such  as  are  expressly  excluded  from  the  operation  of 
the  f)resent  act.  Old 'debts  existing  under  the  former  act  and  kept  alive  until 
now  by  subsequent  judgments,  are  not  excepted  from  the  new  act,  though  a 
discharge  from  them  under  the  former  act  was  denied.  They  are,  therefore, 
presumably  within  the  intent  of  the  present  statute.  The  long  disability  of  the 
debtor  under  the  pressure  of  his  old  debts  is  in  effect  made  by  the  present 
act  a  sufficient  punishment  for  the  offences  which  previously  barred  his  dis- 
charge. The  new  act,  as  respects  discharges,  supersedes  the  old;  and  its  de- 
sign to  give  freedom  to  all  debtors  upon  an  honest  compliance  with  its  pro- 
visions, subject  only  to  its  own  restrictions,  would  be  clearly  thwarted  pro 
tanto,  if  relief  under  it  were  refused  merely  because  similar  relief  had  been 
refused  under  the  Act  of  1867." 


§    2445  PETITION   FOR  DISCHARGE.  1477 

§  2440.  Refusal  of  Discharge  under  State  Bankruptcy  or  State 
Insolvency  Law  Not  Res  Adjudicata  as  to  Same  Debt  in  Federal 
Bankruptcy. — Nor  is  the  refusal  of  a  discharge  under  a  state  insolvency 
low  res  adjudicata,  the  record  not  showing  the  ground  of  the  refusal. ^^^ 

§  2441.  Refusal  of  Discharge  No  Bar  to  Subsequent  Bankruptcy 
Petitions  nor  Adjudications. — Refusal  of  discharge  will  not  prevent  the 
debtor  from  filing  a  subsequent  voluntary  petition  in  bankruptcy  nor 
creditors  from  filing  a  subsequent  petition  against  him,  except  as  the  same 
may  be  enjoinable  for  futile  and  vexatious  repetition.-^ 

§  2442.  Discharge  Not  Impeachable  Collaterally.— The  order  of 
discharge  may  not  be  questioned  nor  attacked  collaterally.-^ 

Custard  z'.  Wiggenson,  17  A.  B.  R.  340  (Wis.) :  "The  order  of  discharge, 
therefore,  having  been  put  in  evidence,  was  proof  of  the  appellant's  discharge 
in  bankruptcy  and  cannot  be  impeached  collaterally.  This  provision  of  the 
Bankrupt  Act,  making  the  order  of  discharge  evidence  of  the  jurisdiction  of 
the  court  and  the  regularity  of  the  proceedings,  was  obviously  intended  to 
dispense  with  proof  of  antecedent  steps  in  the  proceedings." 

Unless  for  absolute  want  of  jurisdiction  apparent  upon  the  face  of  the 
record,  as  in  cases  where  the  petition  for  the  discharge  was  filed  after  eigh- 
teen months  from  the  date  of  adjudication.-"" 

§  2443.  But  Avoiding  Effect  of  Discharge  by  Showing  Debt  Ex- 
cepted from  Its  Operation,  Not  "Collateral  Attack." — But  the  avoid- 
ing of  the  effect  of  a  discharge  by  showing  that  one's  debt  was  not  "duly 
scheduled,"  or  otherwise  was  excepted  from  the  operation  of  the  act,  is 
not  a  collateral  attack  on  the  discharge.'^^ 

§  2444.  Nor  "Attack"  at  All. — Indeed,  it  is  not  an  attack  on  the  dis- 
charge decree  at  all,  but  rather  a  carrying  out  of  its  terms ;  for  by  the 
law  itself,  the  discharge  is  not  to  operate  upon  the  debts  excepted  imder 
§  17  nor  upon  debts  that  are  not  "provable." 

§  2445.  Bankrupt  Cannot  Voluntarily  Surrender  Discharge. — Nor 

may  the  bankrupt  himself  surrender  his  discharge  or  vacate  it.  It  can 
be  revoked  only  in  the  statutory  manner.^^  But,  of  course,  the  bankrupt 
may  revive  the  discharged  debts  by  new  promises. 

27.  In  re  Bybee,  10  A.  B.  R.  761,  124  Fed.  1011  (D.  C.  Calif.);  Dean  v.  Justices 
of  the  Municipal  Court,  2  A.  B.  R.  16.3  (Sup.  Ct.  Mass.). 

28.  See  ante,  §  2416. 

29.  In  re  Shafifer,  4  A.  B.  R.  728,  104  Fed.  982  (D.  C.  N.  Car.). 

30.  Obiter,  In  re  Fahy,  8  A.  B.  R.  354,  116  Fed.  239  (D.  C.  Iowa),  quoted 
supra,  §  2427. 

31.  Sutherland  v.  Lasher,  11  A.  B.  R.  780,  41  N.  Y.  Misc.  251  (affirmed  in 
87  App.  Div.  633);  Schiller  v.  Weinstein,  15  A.  B.  R.  184  (N.  Y.  Court  App.). 

32.  In  re  Shaffer,  4  A.  B.  R.  728,  104  Fed.  982  (D.  C.  N.  Car.).  Compare,  In 
re  Hawk,  8  A.  B.  R.  71,  114  Fed.  916  (C.  C.  A.). 


1478  REMIXGTON    ON    BANKRUPTCY.  §    2446 

§  2446.  Staying  Discharge  to  Permit  Creditor  to  Perfect  Rights 
against  Surety  or  Exempt  Property. — Proceedings  upon  a  petition 
for  discharge  may  be  stayed  until  a  creditor  may  perfect  his  rights  against 
a  surety  or  other  third  person  or  against  the  bankrupt's  own  exempt  prop- 
erty, or  otherwise  secure  special  remedies,  where  judgment  must  be  ob- 
tained, or  other  steps  be  taken,  to  perfect  such  creditors'  rights.^s 

Suggestion  in  In  re  Lewensohn,  3  A.  B.  R.  59,  §  99  Fed.  73  (D.  C.  N.  Y.) : 
"If  a  judgment  is  necessary  to  prevent  the  discharge  from  barring  the  debt, 
a   prosecution  of  the   suit   to  judgment  should  be   allowed." 

CoJitra,  Bryant  v.  Kinyon,  6  A.  B.  R.  241  (Mich.) :  "It  is  contended,  however, 
that  as  the  defendant  was  arrested  upon  a  capias,  and  gave  bail,  that  the 
surety  is  not  discharged,  and  that  a  judgment  is  necessary,  and  should  be 
permitted,  to  fix  his  liability.  We  think  this  position  is  not  tenable.  The  re- 
sponsibility of  the  surety  is  limited  by  a  strict  construction  of  his  bond.  There 
can  be  no  liability  unless  a  judgment  is  procured  in  the  action  against  the 
principal,  and  that  can  never  be,  for  the  reason  that  he  is  released  by  his 
discharge." 

33.  See  ante,  §§  1102,  1104,  1105.  In  re  Marshall  Paper  Co.,  2  A.  B.  R.  653, 
102  Fed.  872  (D.  C.  Mass.,  reversed,  on  other  grounds,  in  4  A.  B.  R.  468);  Lock- 
wood  V.  Exchange  Bk.,  190  U.  S.  294,  10  A.  B.  R.  107;  suggestion  in  Ingram  u. 
Wilson,  11  A.  B.  R.  192,  125  Fed.  913  (C.  C.  A.  Iowa);  Bell  r.  Dawson  Grocery 
Co.,  12  A.  B.  R.  159  (Sup.  Ct.  Ga.) ;  In  re  Brumbaugh,  12  A.  B.  R.  204,  128  Fed. 
971  (D.  C.  Penn.);  In  re  Tiffany,  17  A.  B.  R.  296  (D.  C.  N.  Y.). 


CHAPTER  LIII. 

Opposition  to  Discharge;. 
Synopsis  of  Chapter. 
§  2447.  Opposition  to  Discharge. 

DIVISION  1. 

§  2448.  Entry  of  Appearance  and   Filing  of  Specifications. 

§  2449.   Entry    of    Appearance    on    Time    Essential. 

§  2450.  Appearance    May    Be   by   Attorney. 

§  2451.  Entry   of   Appearance    Gives   Ten    Days   Time    to    File    Specifications. 

§  2452.  Specifications  to  Be  Filed  in  Writing. 

§  2453.   Not  Filed  within  Ten  Days,   Dismissed. 

§  2454..  Time   Extended  but   Only  for -Good   Cause. 

§  2455.  Bankrupt  to  Attend  Hearing;    No  Order  Necessary;    No  Reimbursement. 

.of   Expenses. 
§  2456.     Death    Not   to   Abate   Opposition    Proceedings 

DIVISION  2. 

§  2457.  Who    May   Oppose    Discharge— Court   Itself,    Not. 

i§  2458.  Trustee,   Not. 

§  2459^.  Any  "Party  in   Interest,"  and  Only  Such,   May  Oppose. 

§  2460.  Must  Have  Pecuniary  Interest. 

§  2461.  Need   Not   Have    Proved,   nor    Have    "Provable,"    Claim. 

§  2462.  Whether    Other    than    One    from    \Miom    Propetry    Obtained    by    False- 

"Representations  May  Oppose  on  That  Ground. 
§  2463.  Whether     Objecting    Creditor's    Loss    of    Capacity     Pending     Hearing, 

Compels   Dismissal    of   Specifications. 

DIVISION   3. 

§  2464.  Opposition  to   Discharge   Not   Criminal   Prosecution,   and   Criminal   Law 

Rules    Not   Applicable. 
§  2465.  Refusal   of   Discharge    Not   Imposition    of    Penalty    nor    Forfeiture. 
§  2466.  No   Constitutional   Right  to  Discharge. 
§  2467.  Act    Liberal    towards    Bankrupt    as    to    Discharge — Strict    Construction 

in    His    Favor. 
§  2458.  Right    to    Discharge    and    Effect    of    Discharge.    Distinct    Propositions. 
§  2469.  Unless    Bankrupt    Commits    One    of    Acts    Prohibited,    His    Discharge 

"Shall"   Be   Granted. 
§  2470.  Though     Bankrupt     Owes     Nondischargeable     Debts;      or     Only     Debt 

Scheduled  Be  Nondischargeable. 
§  2471.   Or  Though   Opposing  Creditor's   Debt  Nondischargable  or  One  against 

Which   No  .Exemption   Exists. 
§  2472.   Or  Though   Only   One   Debt   Exists. 
§  2473.  That  Only  Partnership  Debts  Exist  No  Bar  to  Discharge  in   Individual 

Bankruptcy. 
§  2474.   Intervening  Insanity  or  Death  No  Bar. 
§  2475.  Undetermined    Petition    for    Discharge    in    Pending    Bankruptcy    under 

Old  Law  of  1867,  Not  Bar. 


1480  EEMI^■GTOX    ox   BAXKRUPTCY. 

§  2476.  Whether    Misconduct    in    Former    Bankruptcy,    Bar. 

§  2477.  Lack  of  Sufficient  "Residence,  Domicile  or  Principal  Place  of  Busi- 
ness" in  District,  No  Bar. 

§  2478^  Collateral  Attack  on  Jurisdiction  for   Lack  of  Residence,   etc. 

§  2479.  Filing  of  Petition  for   Discharge   after   Expiration   of  Year. 

§  2480.  Withholding  Discharge  or  Dismissing  Discharge  Petition,  for  Other 
Causes — Noncompliance  with  Rules,  Want  of  Prosecution,  etc. 

§  2481.  Buying    Off   Opposition   to    Discharge. 

§  2482.  Discharge  Not  Refused  for  Acts  Committed  before  Enactment  of  Law. 

§  2483.  Right  to  Discharge  Governed  by  Law  as  It  Stood  at  Time  of  Filing 
Bankruptcy  Petition. 

§  2484.  Fraudulent  Acts  of  Agents  and  Partners  Not  Imputable  unless  xA.ctual 
Knowledge  Exists,  Where  Commission  of  "Offense"  Is  Ground 
Urged. 

§  2485.  How,  Where  Ground  Charged  Is  Not  Commission  of  "Offense." 

§  2486.  Whether  Act  Must  Be  Committed  in  Same  Capacity  in  Which  Dis- 
charge   Sought,    to    Bar. 

SUBDIVISION    "a." 

§  2487.  "Concealment    of   Assets,"    as    Bar   to    Discharge. 

§  2488.  "Knowingly  and   Fraudulently." 

§  2489.   Intent  to  Conceal,  Most  Important  Element. 

§  2490.  Honest    Mistake,    Even    ^Mistake    of    Law,    Excuses. 

§  2491.  Advice  of  Counsel   May  Negative   Intent. 

§  2492.  But  Insufficient  Where  Legal  Questions  are  ^Matters  of  Common  Knowl- 
edge; or  Facts  Not  Fully  Laid  before  Counsel,  or  Unwarranted 
Inferences    Drawn   from   Advice. 

§  2493.  Because  Property  Claimable  as  Exempt,  Fraudulent  Intent  Not  Nec- 
essarily   Negatived. 

§  2494.   But  Such  Fact  of  Weight  as  Evidence. 

§  2493.  \\'illful    Undervaluing   of    Scheduled   Assets    May    Be    Concealment. 

§  2496.   Preference  Not  Amounting  to  Fraudulent  Concealment  No   Bar. 

§  2497.  Concealment  ]\Iust  Be  "While  a  Bankrupt"  or  After  Discharge. 

§  2498.   Continuing    Concealments. 

§  2499.   Concealment    Must    Be    Concealment    from    Trustee. 

§  2500.   Concealment    before    Appointment    of    Trustee,    Insufficient. 

§  2501.  Mere  Inability  to  Account  Reasonably  for  Assets  Not  Per  Se  Proof, 
Though  Strong  Evidence. 

§  2502.  Concealment  by  Purposely  Omitting  Assets  from  Schedules. 

§  2503.  And   Amendment   after    Discovery   Will    Not    Cure. 

§  2504.  But   Omission  to   Schedule,   Not  Per   Se      Concealment. 

§  2505.   Concealment    of    Fraudulently    Transferred    Property. 

§  2506.  But  Property' Must  Be  Recoverable,  Else  Not  Concealment  of  Prop- 
erty "Belonging  to  Estate." 

§  2507.  Concealment,  Even  Where  Fraudulent  Transfer  Occurred  More  than 
Four   Months   before   Bankruptcy,   if   Property  .Still    Recoverable. 

§  2508.  Or  Where   It   Occurred  before   Passage   of  Act,   if   Still   Recoverable. 

§  2509.  Even  Where  No  Debts  Existed  and  Transfer  Fraudulent  Only  Be- 
cause in   Contemplation   of  Future  Creditors. 

§  2510.  Concealment  of  Property  Held  on  "Secret"  or  Resulting  Trust,  Title 
Never   Having   Been  in   Bankrupt. 

•§  2511.  "Secret  Trust"  in  Bankrupt's  Favor  Generally  Requisite  to  Show  Con- 
tinuing   and    Intentional    Concealment    of    Fraudulent    Transfers. 


OPPOSITION   TO  DISCHARGE.  1481 

§  2512.  "Secret  Trust"  Not  Requisite  Where  "Fraudulent  Conveyance  within 
Four  ]\lonths,"  Ground  Charged. 

§  2513.  But  "Concealment"  and  "Fraudulent  and  Knowing  Intent"  Provable 
Otherwise    than    by    Continuing    Secret    Trust. 

§  2514.  "Concealment"    Must    Be    of    Property    "Belonging    to    Estate." 

§  2515.  Mere  Working  for  Another,  Even  without  Pay,  While  Insolvent,  No 
Concealment. 

§  2516.  Thus,    Beginning    New    Business    as    Agent    for    Another. 

§  2517.  Exact  Value*  of  Assets  Concealed  Need  Not  Be  Capable  of  Ascertain- 
ment,  if  of  Value. 

§  2518.   Even    if    of    Small    Value,    Intentional    Concealment    Will    Bar. 

§.  2519.  Failure  of  Creditors  to  Institute  Legal  Proceedings  to  Recover  Con- 
cealed  Property   Tends   to   Rebut. 

§  2520,  Amendment  of  Schedules  after  Discovery  of  Concealed  Assets  of  No 
Avail. 

■§  2521.   Instances   Held  Sufficient  to  Bar  Discharge  for  Concealment  of  Assets. 

§  2522.  Instances  Held  Insufficient  to  Prove  Fraudulent  Concealment. 

SUBDIVISION    "b." 

§  2523.  "False   Oath"  as   Bar  to  Discharge. 

§  2524.  Must    Be    False    Oath    or    False    Account. 

§  2525.  Oath  Must  Be  Authorized  by  Statute  and  Administered  by  One  Author- 
ized. 

§  2526.  Sufficient    if    Administered    Either    before    Testifying    or    Afterwards. 

§  2527.  Must  Be  in   or  in   Relation   to   Bankruptcy   Proceedings. 

§  2528.  "False   Oaths"  in  Poverty  Affidavits. 

§  2529.  "False   Oaths"   in   Hearing  upon   Petition   for   Adjudication. 

■§  2530.  If  Not  in,  nor  in  Relation  to  His  Own  Bankruptcy  Proceedings,  No 
Bar. 

§  2531.  Whether    False    Oath    in    Own    Previous    Bankruptcy    Proceedings,    Bar. 

§  2532.  False  Oath  in  Bankruptcy  Proceedings  under  Law  of  1867  Not  Suf- 
ficient. 

§  2533.   Must   Have   Been   Material 

§  2534.  Material  Though  Subject  of  Little  Value  or  Exempt  or  Not  Recoverable. 

§  2535.  False    Oath    Must    Be    "Knowingly    and    Fraudulently"    Made. 

1  2536.  "Advice   of   Counsel"   Tends   to    Negative    Fraudulent    Intent. 

§  2537.  Fraudulent  Intent  Not  Necessarily  Negatived  by  Fact  That  Property 
Not  Recoverable. 

■§  2538.  Nor  That  Its  Value  Unascertained. 

§  2539.  Nor   That   It    Might   Have*  Been   Claimed    Exempt. 

§  2540.   False  Testimony  on  "General  Examination,"  "False  Oath." 

§  2541.  Swearing  to  Schedules  Containing  Misstatements  or  Omissions,  "False 
Oath." 

§  2542.   Omitting  Creditors  from  Schedules,  When  "False  Oath." 

■§  2543.  Amendment    after    Discovery    of    Omission. 

SURDIVTSION    "C." 

■§  2544.  Destruction,    Failure   to    Keep   and    Concealment   of    Books    of   Account 

as   Bar  to  Discharge. 
§  2545.  Intent   to   Conceal    Financial    Condition   Essential. 
?  2546.  Intent  Inferable  from  Circumstances. 
§  2547.  Property  Exempt,  or  Not  Recoverable,   etc. — Not   Necessarily  Negative 

Intent    to    Conceal. 


1482  RKMINGTON    ON   BANKRUPTCY. 

§  2548.  Keeping   Books  in   Same   Defective   Manner  for   Long   Period   Tends   to 

Negative  Intent. 
§  2549.  No  Special  Manner  of  Keeping  Books  Requisite. 
§  2550.   Concealment  or  Destruction   of   Books,   etc.,   Whicli   Might   Have   Aided 

in   Ascertainment    of    Financial    Condition. 

SUBDIVISION    "d." 
§  2551.   Presentation  of  False  Claim  or  Demand  as  Bar  to  Discharge. 

SUBDIVISION  "i;." 

§  2552.   Grounds  of  Opposition   to   Discharge   Added  by  Amendment   of   1903. 
§  2553.  Transfer,    Removal    or    Concealment    within    Four    Months,    as    Bar    to 

Discharge. 
§  2554.  Must   Be   within   Four  Months   Preceding  Bankruptcy. 
§  2555.  But  Property   Need   Not   Be   Still   Recoverable. 

SUBDIVISION    "F." 

§  2556.   Obtaining   Property   on   Credit   on   False   Statement   in   Writing,   as   Bar 

to    Discharge. 
§  2557.   New   Ground   Only   Available   in   Bankruptcies   Instituted   Since   Amend- 
ment. 

§  2558.  Statement  before  Amendment  Sufficient  if  Proceedings   Instituted  after 
Amendment. 

§  2559.  Whether    Other    than    Particular    Creditor    Defrauded    ^Nlay    Oppose    on 
This    Ground. 

§  2560.   First    Element:     Materially    False    Statement    in    Writing. 

§  2561.  Written    Statement    Need    Not    Be    Delivered    if    Contents    Communi- 
cated. 

§  2562.  Second   Element:    Must  Be  by   Bankrupt. 

§  2563.  But    if    Made    by    Agent    with    Bankrupt's    Authority,    Sufficient. 

§  2564.  Third   Element:    Must   Be   Made  to   Person   from   Whom   Property   Ob- 
tained. 

§  2565.  Whether,    if    Made    to    Mercantile    Agencies,    or    in    Answer    to    General 
Inquiries,    a    Bar. 

§  2566.   Fourth   Element:    Property   Must   Be   Obtained   on   Credit   Thereby. 

§  2567.   Fifth   Element:     Bankrupt  Must   Intend  to   Obtain   Property   Thereby. 

§  2568.  Whether   Intent   Must   Be   to   Obtain    Particular   Property   Actually    Ob- 
tained. 

§  2569.   Sixth  Element:    False  Statement  Must  Be  Relied  on. 

§  2570.  "Continuing  Representations." 

SUBDIVISION    "G." 

§  2571.  Previous  Discharge  within  Six  Years,  as  Bar  to  Discharge. 

§  3572.  Whether  Present  Application  Be  Involuntary  or  Voluntary  Bankruptcy, 

Immaterial. 
§  2573.  Previous   Discharge   in    Involuntary   Proceedings,    No    Bar. 
§  2574.  In  Voluntary  Proceedings,  It  Is  Bar. 
§  2575.  Previous  Refusal  of  Discharge  within  Six  Years  Not  within  Bar,  Though 

Res  Judicata  as  to  Old  Debts. 
§  2576.  This    Bar   Applicable    Where   Proceedings    Instituted    after   Amendment 

of  1903,  Though   Facts   Occurred   Beforehand. 


OPPOSITION  TO  discharge;.  1483 

§  2577.  "Within  Six  Years"  Measures  Time  between  First  and  Second  Dis- 
charge, Not  between  First  Discharge  and  Filing  of  Second  Petition  in 
Bankruptcy. 

§  2578.  Nor  between  Two  Adjudications  of  Bankruptcy. 

§  2579.  Jurisdiction  to  Administer  Estate  Unimpaired  Though  Discharge 
Barred  because  of  Previous  Discharge  within  Six  Years. 

SUBDIVISION   "h." 

§  2580.   Refusal  to  Obey  Court's   Order  or  to  Answer  Question,  as  Bar  to  Dis- 
charge. 
§  2581.   Refusal   to   Answer   Incrimin^ing  Questions. 
§  2582.  Withholding  Discharge  until  Court   Rules   Complied  with. 

DIVISION  4. 
§  2583.  Specifications    of    Objections    to    Discharge,    Pleadings. 

SUBDIVISION   "a." 

§  2584.  Specifications  to  Be  Verified. 

§  2585.  But   Lack  of  Verification  May  Be  Waived. 

§  2586.   Or   Be  Supplied  by  Amendment. 

§  2587.  W^here    Several    Objecting    Creditors,    All    ]\Iay    Sign    and    Verify    Same 

Specifications. 
§  2588.  Whether  if  Several  Join  in  Same,  Each  Alust  Sign  and  Verify. 
§  2589.  Whether   Verification   by    Some    One   with    Knowledge    Requisite. 
§  2590.  Verification  by  Attorneys  Permitted. 
§  2591.   Forms    of   Verification. 
§  2592.  Whether  Verification  ^lust  Be   Positive  or  May  Be  on  Information  and 

Belief. 
§  2o93.   Specifications  to   Be  Signed. 

SUBDIVISION    "b." 

§  2594.   Specifications   to   Show   Capacity  of   Objecting   Creditor. 

§  2595.  All  Essential  Facts  and  Elements  of  Bar  to  Discharge  to  Be  Alleged. 

§  2596.  "Knowingly  and  Fraudulently''  to  Be  Alleged  Where  Act  Charged  an 
"Ofifense." 

§  2597.  If  Act  Charged  an  "Ofifense,"  Must  Appear  to  Have  Been  Committed 
after    Bankruptcy,    etc. 

§  2598.  Acts   Charged,   to   Be   Brought   within   Time   Limit. 

§  2599.  Distinct  Grounds  May  Be  Joined  in  One  Specification. 

§  2600.  But  Each  Ground  to  Be  Separately  Stated. 

§  2601..  All  Grounds  Need  Not  Be  Sustained. 

§  2602.   Specifications   Not   to   Be   Used   as   "Dragnet"   or   "Fishing   Expedition." 

§  2603.  Must  Not  Be  Indefinite  nor  General  nor  Argumentative,  but  Certain  and 
Positive. 

§  2604.  No    Greater    Definiteness    Necessary   than    Nature    of    Facts    Requires. 

§  2605.  Whether  to  Be  Pleaded  "with  Certainty  of  Indictment"  Where  "Of- 
fense"  Charged. 

§  2606.  Evidence    Not   to    Be    Pleaded. 

§  2607.  Legal  Conclusions  Not  to  Be  Pleaded. 

§  2608.  Thus,  Allegations  in  Mere  Words  of  Statute  Sufificient  Only  Where 
Failure   to   Keep    Books,    Ground    Charged — Elsewhere    Insufficient. 

§  2609.  Alternative    Allegations    Improper. 


1484  REMINGTON    ON   BANKRUPTCY. 

SUBDIVISION    "Q." 

§  2610.   Defective  Specifications;    Rights  and  Remedies. 

§  2611.  Whether   Specification   of   One    Ground   and    Proof   of   Another   a   Fatal 

Variance. 
§  2612.  Defective   Specifications  Waived  by   Going  to  Trial  w^ithout  Objection. 
§  2613.  Defective  Specifications  May  Be  Amended. 
§  2614.  Must   Be   Something  in   Record   Whereby   to   Amend. 
§  2615.  Amendment  Permissible  after  Time   Limited  for  Filing  Specifications. 
§  2616.  Even  New  Ground  of  Opposition  May  Be  Added. 
§  2617.  Amendment  to  Conform  Pleadings  to  Proof  but  Not  to  Set  up  Entirely 

New  Ground  after  Trial.  ** 

§  2618.  Amendment   May  Be  Ordered. 
§  2619.  Striking  Ofif  Specifications   after  Amendment   for   Failiiig   Still  to   Show 

Sufficient   Grounds. 
§  2620.  Amendment   May   Be   Conditioned  on   Payment   of   Costs. 
§  2621.  Amendment    May    Be    Refused. 
§  2622.   Refusal   to    Permit   Amendment   Reviewable   for  Abuse   of   Discretion. 

SUBDIVISION    "Xt!' 

§  2623.  Answer    to    Specifications    Not    Necessary. 
§  2624.  But   May  Be   Filed. 

DIVISION  5. 


§  2625.  Final  Hearing  on  Discharge  to  Be  before  Judge. 
§  2626.  But  Judge  May  Refer  Issues  to  Special  ^Master. 
§  2627.  Motions  and  Demurrers  to  Be  to  Judge,  Not  to  Special  Master. 

SUBDIVISION    '%." 

§  2628.  Hearings  before  Special  Master. 

§  2'629.  Whether  Special  Mastei#to   Exclude  Improper  Evidence. 

§  2630.  Findings  of  Fact  as  Well  as  Evidence  to  Be  Reported. 

§  2631.  Also  Conclusion  of  Law. 

§  2632.  Exceptions  to  Special  Master's  Report  and  Findings. 

§  2633.  Court    Presumed    to    Have    Investigated    Case    on    Merits,    on    Master's 

Report. 

§  2634.  Findings  of  Fact  Not  Reversed  Except  for  Clear   Error. 

SUBDIVISION    "q!' 

§  2G35.   Burden    of    Proof    on    Opposing    Creditor. 

§  2636.  But    Presumptions    of    Fact    May    Shift    against   Bankrupt,    and    Compel 

Rebuttal. 
§  2637.  Burden    of    Proof    Is    on    Objecting    Creditor    as    to    Each    Element    of 

Ground    Charged. 
§  2638.  Evidence  Need  Not  Be  beyond  Reasonable  Doubt. 
§  2639.   But    Where    "Ofifense"    Is    Ground    Charged,    Evidence    to    Be    "Clear," 

"Satisfying"  or  "Convincing." 
§  2640.  Whether    Same    Degree    of    Proof    Requisite    Where    Ground    Charged 

Is  Not  a  Punishable  Offense. 
§  2641.  "General   Examination"   of   Bankrupt   Admissible. 
§  2642.  Competent  Though  Crime  Charged. 


§  2448  OPPOSITION  TO  discharge;.  1485 

§  2643.  But  of  Other  Witnesses,  Not  Admissible. 

§  2644.  Unless  So  Stipulated. 

§  2645.   Ordinary  Rules  Determine  Admissibility  and  Credibility. 

§  2646.  Failure  to  Produce   Material  Witnesses  Who  Are  Accessible. 

§  2647.  Failure  of  Creditors  to  Take  Steps  to  Recover  Property  Alleged  Fraud- 
ulently   Concealed. 

§  2648.   Evasive  Testimony  of  Bankrupt:    Credibility. 

§  2649.   Contradictory   Statements    and   Incredible    Explanations. 

§  2650.  Impeachment  of  Witness  by  Inherent  Improbability  of  Own  Testi- 
mony. 

§  2651.  Nevertheless  Merelj-  Suspicious  Circumstances  Not  Sufficient  Where 
Witness   Uncontradicted. 

§  2652.  Likewise  Mere  Evasive  Testimony  and  Inability  to  Account  Reasonably 
for  Assets    Not   Per   Se   Proof. 

§  2653.  Though   Strong   Evidence   Tending  to   Discredit. 

§  2654.  Judicial   Cognizance   of   Court   Records. 

§  2655.   Res   Judicata   and   Estoppel. 

§  2656.  Discharge  Hearing  Not  Postponed  to  Await  Outcome  of  Fraudulent 
Conveyance    Suit. 

§  2657.  Declarations  of  Alleged  Fraudulent  Transferrer. 

SUBDIVISION    "d." 

§  2658.  Costs    on   Discharge. 

§  2659.  Power  to  Award  Costs  Inherent. 

§  2660.  Referee  Allowed  Compensation  as  Special   Master  on  Discharge. 

§  2661.  Awarding   Costs   against   Creditors. 

§  2447.  Opposition  to  Discharge. — The  judge  hears  the  appHcation 
for  discharge,  and  such  proofs  and  pleas  as  may  be  made  in  opposition 
tliereto  by  parties  in  interest,  at  such  time  as  will  give  parties  in  interest  a 
reasonable  opportunity  to  be  fully  heard  ;  and  he  investigates  the  merits 
of  the  application,  and  discharges  the  applicant  unless  he  has  done  some 
one  or  more  of  the  acts  mentioned  by  the  statute  as  barring  his  discharge.^ 

Division   1. 

Entry  of  Appearance;  and  Fiung  of  Specifications. 

§  2448.  Entry  of  Appearance  and  Filing  of  Specifications. — After 
the  filing  of  the  petition  and  at  or  before  the  time  announced  in  the  notice 
to  creditors  for  its  hearing,  any  interested  party  desiring  to  oppose  the 
granting  of  the  discharge,  may  enter  his  appearance  with  the  clerk  or  be- 
fore the  judge,  in  opposition  thereto,  and  is  then  allowed  ten  days  time 
thereafter  within  which  to  file  specifications  in  writing  of  the  grounds  of 
his  opposition  thereto ;  but  such  time  may  be  extended  by  order  of  the 
judge.2 

1.  Bankr.  Act,  §  14  (b).     Gen.  Ord.  XXXII. 

2,  Gen.  Ord.  XXXII.  In  re  Holman,  1  A.  B.  R.  600,  92  Fed.  512  (D.  C. 
Iowa). 


1486  REMINGTON    ON   BANKRUPTCY.  §    2454 

Compare,  In  re  Clothier,  6  A.  B.  R.  203,  108  Fed.  199  (D.  C.  Pa.):  "General 
Order  32  should  be  strictly  complied  with,  and  failure  so  to  do  will  only  be 
excused   when   excellent   reasons   therefor   are   shown  to   the    court." 

If  specifications  of  objections  to  the  discharge  are  not  filed,  the  dis- 
charge will  be  granted.^ 

§  2449.  Entry  of  Appearance  on  Time  Essential. — Entry  of  appear- 
ance within  such  time  is  absolutely  essential  to  the  right  to  file  specifica- 
tions in  opposition  to  discharge.^ 

If  no  objection  is  made,  the  court  will  presume  that  no  reason  exists 
for  not  granting  a  discharge.^ 

§  2450.  Appearance  May  Be  by  Attorney. — Duly  admitted  attor- 
neys at  law  may  enter  appearance  in  behalf  of  their  clients,  without  written 
power  of  attorney.^ 

§  2451.  Entry  of  Appearance  Gives  Ten  Days'  Time  to  File  Spec- 
ifications.— The  operation  of  such  entry  of  appearance  is  to  give  the  op- 
posing creditor  ten  days  time  within  which  to  file  written  specifications  of 
his  grounds  of  opposition. 

§  2452.  Specifications  to  Be  Filed  in  Writing. — Specifications  of 
the  grounds  of  opposition  to  the  discharge  must  be  filed  in  writing.''' 

And  the  filing  of  specification,  in  opposition  is  a  prerequisite  to  the  intro- 
duction of  any  evidence  against  the  discharge.'^ 

§  2453.  Not  Filed  within  Ten  Days,  Dismissed. — Specifications  not 
filed  within  the  time  limited  will  be  dismissed. '^ 

§  2454.  Time  Extended  but  Only  for  "Good  Cause."— Such  time 
may  be  extended  by  the  judge,  for  good  cause. ^'''  But  such  extension 
should  be  applied  for  before  the  expiration  of  the  original  time;^^  and  good 
cause  must  be  shown. i- 

3.  In  re  Kaiser,  3  A.  B.  R.  767,  99  Fed.  689   (D.   C.  Minn.). 

4.  In  re  Gainsburg,  12  A.  B.  R.  459,  130  Fed.  627  (D.  C.  Penn.) ;  In  re  Grant,  14 
A.  B.  R.  398,  135  Fed.  889  (D.  C.  Pa.);  In  re  Albrecht,  5  A.  B.  R.  223,  104  Fed 
974  (D.  C.  Pa.).  Analogously,  as  to  filing  specifications,  In  re  Clothier,  6  A.  B. 
R.  203,  108  Fed.  199  (D.  C.  Pa.). 

5.  In  re  Royal,  7  A.  B.  R.  636,  113  Fed.  140  (D.  C.  N.  C). 

6.  In  re  Gasser,  5  A.  B.  R.  32,  104  Fed.  537  (C.  C.  A.  Minn.). 

7.  Gen.  Ord.  XXXII.     In  re  Holman,  1  A.  B.  R.  600,  92  Fed.  512  (D.  C.  Iowa). 

8.  In  re  Kaiser,  3  A.  B.  R.  767,  99  Fed.  689  (D.  C.  Minn.). 

9.  In  re  Albrecht,  5  A.  B.  R.  223,  104  Fed.  974  (D.  C.  Pa.);  In  re  Clothier,  G 
A.  B.  R.  203,  108  Fed.  199  (D.  C.  Pa.). 

10.  Gen.  Ord.  XXXII. 

11.  Apparently  contra,  for  a  case  in  which  a  judge  made  a  "nunc  pro  tunc" 
order  where  no  extension  had  been  requested,  apparentlj^,  until  after  the  ex- 
piration of  the  ten  days  time,  see  In  re  F'rice,  2  A.  B.  R.  674;  96  Fed.  611  (D.  C. 
Iowa).     This  would  hardly  seem  to  be  the  function  of  a  nunc  pro  tunc  order. 

Compare,  analogous  practice  as  to  filing  the  petition  for  discharge  ante 
§  2425. 

12.  In  re  Clothier,  6  A.  B.  R.  203,  108  Fed.  199  (D.  C.  Penn.). 


§    2457  OPPOSITION   TO  DISCHARGE.  1487 

§  2455.  Bankrupt  to  Attend  Hearing-:  No  Order  Necessary:  No 
Reimbursement  of  Expenses.- — The  bankrupt  must  present  himself  at 
the  hearing  upon  his  application  for  discharge,  and  is  not  permitted  by 
absence  to  defeat  the  creditors  from  proving  their  grounds  of  opposi- 
tion.^^  He  must  attend  without  being  ordered  to  do  so;^"*  and  he  is  not 
entitled  to  reimbursement  of  expenses  in  so  doing. ^^ 

§  2456.  Death  Not  to  Abate  Opposition  Proceedings. — The  death 
of  the  bankrupt  will  not  abate  the  proceedings  in  opposition  to  his  dis- 
charge. ^^ 

Division  2. 
Who  ]\Iay  Oppose;  Discharge;. 

§  2457.    Who  May  Oppose    Discharge— Court    Itself,    Not.— The 

court  will  not  itself  seek  for  grounds  to  refuse  a  discharge:  grounds  must 
be  properly  presented  by  parties.^" 

In  re  Thomas,  1  A.  B.  R.  515,  92  Fed.  912  (D.  C.  Iowa):  "Section  14, 
paragraph  b,  makes  it  the  duty  of  the  judge  to  grant  the  discharge,  provided 
the  requisites  as  to  notice,  etc.,  have  been  observed,  unless  one  of  the  two 
grounds  in  said  paragraph  stated  is  proven.  The  duty  of  proving  that  such 
ground  exists  is  on  the  opposing  creditors." 

But  the  court  will  not  grant  a  discharge  until  the  law  as  to  procedure 
snd  the  rule^  of  court  have  been  complied  with.^^ 

No  "certificate  of  conformity,"  however,  is  required  under  the  present 
act,  as  was  required  under  the  former  act. 

It  has  been  held  that  specifications  of  objections  to  discharge,  which 
not  only  fail  to  show  the  objector  is  a  party  in  interest,  but  affirmatively 
show  he  will  not  be  afi^ected  by  a  discharge,  as  that  his  claim  is  not  a 
dijchargeable  one,  are  fatally  defective,  and  present  no  issue  that  should  be 
considered  or  determined ;  and  that  the  court  may  take  judicial  notice 
thereof  though  the  specifications  are  not  objected  to  on  that  ground. ^^ 

13.  Bankr.  Act,  §  7  (1).  In  re  Shanker,  15  A.  B.  R.  109,  138  Fed.  862  (D.  C 
Pa.).  Compare,  as  to  general  examination  after  entry  of  opposition  to  discharge, 
In  re  Price,  1  A.  B.  R.  419,  91  Fed.  635  (D.  C.  N.  Y.). 

14.  In  re  Shanker,  15  A.  B.  R.  109,  138  Fed.  862  (D.  C.  Pa.). 

15.  Obiter,  In  re  Shanker,  15  A.  B.  R.  109,  138  Fed.  862  (D.  C.  Pa.). 

16.  In  re  Parker,  1  A.  B.  R.  615  (Ref.  Kans.).  Compare,  "Intervening  Death 
Does  Not  Affect  Right  to  Discharge,"  ante,  §  2421. 

17.  In  re  Hixon,  1  A.  B.  R.  610,  93  Fed.  440  (D.  C.  Iowa);  In  re  Royal,  7  A. 
B.  R.  636,  113  Fed.  140  (D.  C.  N.  Car.);  Strause  v.  Hooper,  5  A.  B.  R.  224,  230, 
105  Fed.  590  (D.  C.  N.  C.) ;  In  re  Holman,  1  A.  B.  R.  603,  92  Fed.  512  (D.  C. 
Iowa);  [1867]  In  re  Schuyler,  3  Ben.  200,  Fed.  Cases  12,494;  [1867]  In  re  Rosen- 
feld,  2  N.  B.  Reg.  117,  Fed.  Cases  12,057. 

18.  Strause  v.  Hooper,  5  A.  B.  R.  224,  230,  105  Fed.  590  (D.  C.  N.  C).  Obiter, 
and  inferentially,  In  re  Thomas,  1  A.  B.  R.  515,  92  Fed.  912  (D.  C.  Iowa).  In- 
stance, analogously,  discharge  vacated  for  failure  to  lile  separate  findings  of 
fact  and  law.  In  re  Rauchenplat,  9  A.  B.  R.  765  (D.  C.  Porto  Rico).  Compare, 
"Duty  of  Court  Sometimes  to  Withhold  Confirmation  of  Composition  on  Own 
Motion,"  ante,  §  2376. 

19.  In  re  Servis,  15  A.  B.  R.  271  (D.  C.  Iowa). 


1488  REMINGTON   ON    BANKRUPTCY.  §    2461 

§  2458.  Trustee,  Not. — The  trustee  is  not,  as  such,  a  proper  party 
to  oppose  clisclfarge.  His  duty  under  the  act  is  to  administer  the  estate 
and  to  attend  simply  to  matters  pertinent  thereto.-'^ 

§  2459.    Any  "Party  in  Interest,"  and  Only  Such,  May  Oppose. 

— Any  party  in  interest,  and  only  such,  may  oppose  the  bankrupts'  dis- 
charge, ^i 

In  re  Levey,  13  A.  B.  R.  314,  133  Fed.  572  (D.  C  N.  Y.) :  "By  implication 
parties  in  interest  only  may  oppose  the  discharge  of  the  bankrupt.  There 
is   no   express   provision   declaring  who   may   oppose." 

§  2460.  Must  Have  Pecuniary  Interest. — To  be  a  "party  in  interest" 
within  the  purview  of  this  provision  he  must  have  a  pecuniary  interest. 22 

In  re  Levey,  13  A.  B.  R.  314,  133  Fed.  572  (D.  C.  N.  Y.) :  "This  court  is  of 
the  opinion  that  it  was  the  purpose  of  Congress  to  enable  any  person  having 
a  personal  pecuniary  interest,  or  a  representative  pecuniary  interest  in  prevent- 
ing a   discharge,   to   oppose   the   discharge   of  the   bankrupt." 

And  the  fact  that  the  bankrupt  has  scheduled  the  person  as  a  creditor 
will  imply  that  he  is  a  "party  in  interest. "^3  An  ecjuitable  claim  is  sufifi- 
cient  to  make  the  holder  such  a  party  in  interest.-^  An  unliquidated  claim 
is  sufficient;-^  so  also  is  a  contested  claim. ^"^  But  a  nondischargeable 
claim  is  not  sufficient. ^'i' 

§  246L   Need  Not  Have  Proved,  nor  Have  "Provable,"  Claim. — 

liut  the  party  in  interest  need  not  have  actually  proved  his  claim. ^^  And 
he  need  not  even  have  a  "provable"  claim,  or  his  claim  may  be  no  longer 
"provable."  Thus,  the  holder  of  a  contingent  claim  is  a  "party  in  in- 
terest ;"29  likewise,  is  a  creditor  who  has  not  proved  his  claim  Avithin  the 
year  and  consequently  cannot  share  in  the  dividends,  or  who  has  not 
j)roved  his  claim  at  all.^*^ 

20.  Contra,  and  that  he  may  be  competent  if  estate  still  unsettled.  In  re  Levey, 
13  A.  B.  R.  312,  133  Fed.  572   (D.  C.  N.  Y.). 

21.  Impliedly,  Bankr.  Act,  §  14  (a):  "*  *  *  hear  *  *  *  g^ch  proofs 
and  pleas  as  may  be  made  in_  opposition  thereto  by  parties  in  interest,  at  such 
times  as  will  give  parties  in  interest.     *     *     *" 

In  re  Servis,  15  A.  B.  R.  271,  140  Fed.  222  (D.  C.  Iowa). 

22.  In  re  Frice,  2  A.  B.  R.  674,  96  Fed.  611  (D.  C.  Iowa). 

23.  In  re  Frice,  2  A.  B.  R.  674,  96  Fed.  611  (D.  C.  Iowa).  Inferentially,  In  re 
Wolke,  3  A.  B.  R.  35,  96  Fed.  550  (D.  C.  N.  Dak.). 

24.  [1867]  In  re  Tebbctts,  Fed.  Cases  No.  13,817.  Obiter,  In  re  Conroy  14 
A.  B.  R.  249,  134  Fed.  764   (D.  C.  Pa.). 

25.  [1867]  Ex  parte  Traphagen,  Fed.  Cases  No.  14,140. 

26.  In  re  Conroy,  14  A.  B.  R.  249,  134  Fed.  764  (D.  C.  Pa.).  [1867]  In  re 
Bclden,  Fed.  Cases  No.  1,238. 

27.  In  re  Servis,  15  A.  B.  R.  27t,  140  Fed.  222  (D.  C.  Iowa). 

28.  In  re  Frice,  2  A.  B.  R.  674,  96  Fed.  611  (D.  C.  Iowa). 

29.  In  re  Conroy,  14  A.  B.  R.  251,  134  Fed.  764  (D.  C.  Pa.). 

30.  Analogously  (vacating  of  discharge).  In  re  Beinberg,  9  A.  B  R  601  121 
Fed.  942  (D.  C.  N.  Y.):  In  re  Frice,  2  A.  B.  R.  674,  96  Fed.  611  (D.  C.  Iowa). 
Compare,  to  similar  effect,  obiter,  In  re  Walker,  3  A.  B.  R.  35  (D.  C.  N.  Dak.). 


§  2465  OPPOSITION  TO  discharge;.  1489 

§  2462.  Whether  Other  than  One  from  Whom  Property  Obtained 
by  False  Representations  May  Oppose  on  That  Ground. — It  is  ques- 
tioned whether  any  other  person  than  the  one  from  whom  property  was 
obtained  by  "materially  false  representations  in  writing"  may  oppose  the 
bankrupt's  discharge  on  that  ground.'^ ^  But  the  better  reason  is  that  any 
creditor,  or  other  party  in  interest,  may  so  oppose  the  discharge,  whether 
or  not  he  be  the  party  extending  the  credit  or  to  whom  the  representations 
v/ere  made  or  from  whom  the  goods  were  obtained.^- 

§  2463.  Whether  Objecting  Creditor's  Loss  of  Capacity  Pending 
Hearing  Compels  Dismissal  of  Specifications. — Where  all  creditors 
opposing  discharge  dropped  out,  one  by  one,  except  apparently  a  partner- 
ship, the  dissolution  of  the  partnership  has  been  held  to  work  a  discon- 
tinuance of  the  prosecution.  Recommendations  of  the  special  master  to 
lefuse  the  discharge  have  been,  on  that  account,  disapproved.^^ 

Division  3. 

Ge;ne;rai,  Nature  and  Grounds  op  Opposition. 

§  2464.  Opposition  to  Discharge  Not  Criminal  Prosecution,  and 
Criminal  Law  Rules  Not  Applicable. — Opposition  to  a  discharge  is  not 
a  criminal  prosecution,  and  the  rules  of  evidence  and  practice  in  criminal 
cases  do  not  prevail.^^ 

In  re  Dresser,  16  A.  B.  R.  562,  146  Fed.  383  (C.  C.  A.  N.  Y.) :  "The  pro- 
visions of  the  section  are  not  to  receive  the  strict  construction  given  to  crim- 
inal statutes,  but  should  receive  a  reasonable  one  to  efifectuate  the  intention  of 
Congress,   so  far  as  that  can  be   ascertained   by  the   language    employed." 

Thus,  the  use  of  the  bankrupt's  former  testimony  is  not  forbidden.-^^ 

§  2465.  Refusal  of  Discharge  Not  Imposition  of  Penalty  nor  For- 
feiture.— Nor  is  the  refusal  to  grant  a  discharge  the  imposition  of  a 
penalty  or  forfeiture.^^ 

31.  In  re  Dresser,  13  A.  B.  R.  616,  144  Fed.  318  (Ref.  N.  Y.,  affirmed  by  D.  C). 

32.  In  re  Harr,  16  A.  B.  R.  216,  143  Fed.  421  (D.  C.  Mo.). 

33.  In  re  Hendrick,  16  A.  B.  R.  218,  143  Fed.  647  (D.  C.  Conn.). 

34.  In  re  Gaylord,  7  A.  B.  R.  1,  112  Fed.  668  (C.  C.  A.  N.  Y.).  Compare,  In 
re  Dauchy,  10  A.  B.  R.  527,  122  Fed.  688  (D.  C.  N.  Y.).  Obiter,  In  re  Levey,  13 
A.  B.  R.  317,  133  Fed.  572  (D.  C.  N.  Y.).  In  re  Dow,  5  A.  B.  R.  400  (D.  C. 
Iowa);  In  re  Dresser,  13  A.  B.  R.  616,  144  Fed.  318  (Ref.  N.  Y.,  affirmed  by  D. 
C);  In  re  Rochford,  10  A.  B.  R.  608,  124  Fed.  182  (C.  C.  A.  S.  Dak.);  Kuntz  v. 
Young,  12  A.  B.  R.  505,  ]31  Fed.  722  (C.  C.  A.   Minn.). 

35.  In  re  Gaylord,  7  A.  B.  R.  1,  112  Fed.  668  (C.  C.  A.  N.  Y.) ;  In  re  Dow,  5 
A.  B.  R.  400  (D.  C.  Iowa).  Obiter,  In  re  Levey,  13  A.  B.  R.  317,  133  Fed.  572 
(D.  C.  N.  Y.).  Compare,  In  re  Dauchy,  10  A.  B.  R.  527,  122  Fed.  688  (D.  C. 
N.  Y.). 

36.  In  re  Leslie,  9  A.  B.  R.  561,  119  Fed.  409  (D.  C.  N.  Y.);  In  re  Dresser,  13 
A.  B.  R.  636,  144  Fe4.  318  (Ref.  N.  Y.,  affirmed  by  D.  C). 

2  Rem  B— 19 


1490  REMINGTON   ON    BANKRUPTCY.  §    2467 

§  2466.  No  Constitutional  Right  to  Discharge. — There  is  no  consti- 
tutional right  to  discharge ;  and  regulations  concerning  discharge  do  not 
make  the  law  unconstitutional.-"^ 

§  2467.  Act  Liberal  Towards  Bankrupt  as  to  Discharge — Strict 
Construction  in  His  Favor. — The  act  is  very  liberal  towards  the  bank- 
rupt as  to  his  discharge,  and  strict  construction  of  the  terms  under  which 
opposition  will  be  sustained  are  had  in  favor  of  the  bankrupt's  discharge.^ ^ 

Compare,  obiter,  In  re  Glass,  9  A.  B.  R.  393,  119  Fed.  509  (D.  C.  Tenii.) : 
"The  bankruptcy  statute  being  very  liberal  to  the  debtor  in  the  matter  of  his  dis- 
charge, confining  the  grounds  of  opposition  to  conduct  on  his  part  of  k  crimi- 
nal nature  or  a  quasi  criminal  carelessness  and  negligence,  he  should  not  be 
allowed  to  receive  the  acquittance  of  the  statute  because  of  any  embarrassment 
or  obstructions  encountered  by  his  creditors  in  presenting  their  opposition  to 
his  application  for  it.  Only  negligence  of  a  culpable  character  on  their  part 
should  debar  them  from  the  benefit  of  Revised  Statutes,  §  954,  as  to  amend- 
ment of  their  specifications;  and  these,  it  seems  to  me,  are  the  considerations 
that  should  control  the  court  in  the  exercise  of  its  discretion  in  the  premises." 

Section  14  (b)  provides  the  judge  "shall"  grant  the  discharge  unless 
certain  acts  are  proved,  and  the  leading  act  consists  of  offenses  prohibited 
as  crimes.  Moreover,  the  definitions  are  so  surrounded  with  qualifications 
in  favor  of  the  bankrupt  as  to  indicate  clearly  the  intention  of  Congress 
that  a  strict  construction  of  the  act  in  favor  of  the  bankrupt,  so  far  as  it 
relates  to  opposition  to  discharge,  must  prevail. 

But  compare.  In  re  Scott,  11  A.  B.  R.  328,  126  Fed.  981  (D.  C.  Del.):  "Stat- 
utory provisions  regulating  the  conditions  on  which  bankrupts  may  be  discharged 
are  remedial  in  their  nature  with  respect  to  the  bankrupts  or  to  their  cred- 
itors, or  to  both,  and  the  strict  rules  of  construction  or  interpretation  appro- 
priate to   retroactive  or   retrospective   laws   are   inapplicable   to   them." 

And  compare  also,  In  re  Breitling,  13  A.  B.  R.  126,  133  Fed.  146  (C.  C.  A. 
Ills.):  "The  Act  requires  the  fullest  disclosure,  the  utmost  good  faith,  the  sur- 
render of  all  his  estate  not  exempt  by  the  Act.  It  is  well  observed  by  Judge 
Brown  that  'a  discharge  in  bankruptcy  upon  any  other  condition  than  the 
complete  appropriation  of  every  known  asset  legally  available  to  creditors 
would  not  be  only  a  glaring  wrong  to  creditors,  but  contrary  to  every  con- 
ception  of  a  just  system  of  bankruptcy.'  " 

Compare,  to  similar  effect.  In  re  Lowenstein,  2  A.  B.  R.  193,  106  Fed.  51 
(Ref.  N.  Y.— subsequently  district  judge):  "I  have  hesitated  to  find  that  the 
bankrupt's  verification  of  schedules  which  omitted  assets  of  such  trifling  value 
constit'uted  knowingly  and  fraudulently  making  a  false  oath;  but  if  a  man 
wants  to  obtain  tlirough  the  Bankruptcy  Act  a  discharge  from  his  debts,  he 
must  in  good  faith  turn  over  all  his  assets  to  his  creditors." 

And  compare,  also,  In  re  Barton  Bros.  Produce  Co.,  14  A.  B.  R.  505,  136  Fed. 
355  (C.  C.  A.  Ark.):  "The*  spirit  of  the  Bankrupt  Act  is  commendable.  Its 
purpose  is   to   release   the  honest   debtor   from   the   burden   of   debts   which   he 

37.  Obiter,  In  re  Xeely,  12  A.  B.  R.  407  (Ref.  N.  Y.).     Compare   ante,  §  12. 

38.  And  compare  also,  In  re  Baudouine,  3  A.  B.   R.  55,  96  Fed    539   CD    C 

N.  Y.).  ■  ■■      * 


§    2468  OPPOSITION   TO  DISCHARGE.  1491 

is  unable  to  longer  carry;  to  give  freer  play  to  his  energies  and  enterprises, 
that  he  may  thereafter  be  better  able  to  support  himself  and  those  dependent 
upon  his  earnings,  and  thereby  be  in  position  to  render  a  better  service  to  the 
State  and  to  society.  This  beneficent  policy  is  conditional  always  upon  the 
bankrupt's  full  and  complete  surrender  of  all  his  unexempt  property  for  the 
benefit  of  his  creditors.  He  must  be  honest  in  this  respect.  He  must  neither 
conceal  nor  withhold  knowingly  anything  from  his  creditors  which  they  are 
entitled,  under  the  law,  to  know  or  receive.  Whenever  the  court  is  im- 
pressed with  the  belief,  after  due  inquiry  and  examination,  that  in  the  main 
the  bankrupt  has  intended  and  tried  to  comply  with  the  law,  he  should  be 
dealt  with  liberally  on  his  petition  for  manumission  from  his  debts.  On  the 
other  hand,  in  order  to  obstruct  gross  abuses  of  the  spirit  of  the  Bankrupt 
Act,  that  it  may  not  aid  the  dishonest  debtor  in  being  acquitted  of  his  honest 
debts,  while  withholding  aught  that  he  should  surrender  for  the  benefit  of  his 
creditors,  it  is  the  duty  of  the  court  to  look  into  the  heart  of  his  trans- 
actions." 

§  2468.  Right  to  Discharge  and  Effect  of  Discharge,  Distinct 
Propositions. — The  right  to  a  discharge  and  the  effect  of  a  discharge  are 
entirely  distinct  propositions.^^ 

In  re  McCarty,  7  A.  B.  R.  40,  111  Fed.  151  (D.  C.  Ills.):  "When  a  bank- 
rupt files  his  application  for  discharge,  the  only  facts  pleadable  in  opposition 
thereto  are  the  causes  mentioned  in  §  14  of  the  act.  Unless  the  bankrupt  has 
committed  some  one  of  the  ofifenses  described  therein,  the  court  must  discharge 
him.  Section  17  of  the  Bankrupt  Law  reaches  further,  but  it  does  not  con- 
trol this  case.  The  right  to  a  discharge  and  the  effect  of  a  discharge  are  entirely 
distinct  propositions.  Section  14  fixes  the  right  to  a  discharge.  Section  17 
goes  to  the  effect  of  a  discharge.  The  question  before  the  court  is  as  to  the 
right  of  the  bankrupt  to  his  discharge.  The  other  questions — the  effect  of  such 
discharge  if,  in  the  future,  it  shall  be  pleaded  in  bar  of  the  collection  of  the 
judgment  in  question — will  arise  in  the  proper  tribunal  where  such  collection 
is  sought  to  be  enforced." 

In  re  Rhutassel,  2  A.  B.  R.  697,  96  Fed.  579  (D.  C.  Iowa):  "Under  the 
provisions  of  the  Bankrupt  Act,  there  are  certain  matters  inhering  in  the 
conduct  of  a  bankrupt  which  will  defeat  the  granting  of  a  discharge;  and  there 
are  other  matters  inhering  in  or  connected  with  the  character  of  certain  claims 
which  except  them  from  the  effect  of  a  discharge,  if  granted.  To  defeat  the 
right  to  a  discharge,  it  must  be  shown  that  the  bankrupt  has  committed  an  of- 
fense punishable  by  imprisonment  under  the  provisions  of  the  act,  or,  with 
fraudulent  intent  to  conceal  his  true  financial  condition,  and  in  contemplation 
of  bankruptcy,  destroyed,  concealed,  or  failed  to  keep  books  of  account  or 
records  from  which  this  true  condition  might  be  ascertained.  Section  14 
of  Bankrupt  Act.  The  effect  of  a  discharge,  when  granted,  is  declared  in 
§  17.  *  *  *  As  a  matter  of  pleading,  the  petition  presents  only  the  ques- 
tion whether  the  bankrupt  is  entitled  to  a  discharge,  and  does  not  tender  any 
issue .  touching   the    effect   of   the    discharge,    if   granted,   upon   particular    debts 

39.  See  post,  §§  2662,  2663.  In  re  Carmichael,  2  A.  B.  R.  815,  96  Fed.  594  (D. 
C.  Iowa);  In  re  Lieber,  3  A.  B.  R.  217  (Special  Master  Pa.);  impliedly,  In  re 
Tinker,  3  A.  B.  R.  580,  99  Fed.  79  (D.  C.  X.  Y.) ;  In  re  Mussey,  3  A.  B.  R.  592, 
99  Fed.  71  (D.  C.  Mass.),  quoted  post,  §  2662;  In  re  Marshall  Paper  Co.,  4  A.  B. 
R.  468,  102  Fed.  872  (C.  C.  A.  Mass.):  In  re  Thomas,  1  A.  B.  R.  515,  92  Fed.  912 
(D.  C.  Iowa),  quoted  post,  §  2662:  Schiller  v.  Weinstein,  15  A.  B.  R.  183  (N.  Y. 
Sup.  Ct.  App.),  quoted  post,  §  2662. 


1492  REMINGTON    ON    BANKRUPTCY.  §   2469 

or  claims.  In  opposition  to  the  petition,  creditors  are  entitled  to  aver  and 
prove  any  matter  which  the  act  declares  shall  bar  the  granting  of  a  discharge, 
but  it  would  certainly  be  no  ground  for  refusing  a  discharge  if  it  appeared 
that  there  were  claims  in  existence  which  a  discharge  would  not  bar  or  release. 
The  right  to  a  discharge  is  one  thing,  and  the  effect  of  it,  when  granted,  is 
another,  and  wholly  distinct,  proposition.  The  only  issue  tendered  by  the 
petition  is  the  right  to  a  discharge,  and  the  only  facts  properly  pleadable  in 
opposition  thereto  are  those  which  show  that  under  the  provisions  of  §  14  the 
bankrupt  is  not  entitled  to  a  discharge.  The  issue  upon  the  effect  of  a  dis- 
charge will  arise  when  a  creditor  seeks  to  enforce  a  judgment  or  claim,  and  the 
debtor  pleads   his   discharge   in  bar  thereof.'' 

§  2469.  Unless  Bankrupt  Commits  One  of  Acts  Prohibited  His 
Discharge  "Shall"  Be  Granted. — Unless  the  bankrupt  has  committed 
some  one  or  more  of  the  acts  prohibited  by  the  Bankrupt  Act,  his  discharge 
"shah"  be  granted.^*' 

And  §  14  (b)  prescribes  what  acts  will  bar  discharge. 

Fellows  v.  Freudenthal,  4  A.  B.  R.  490,  102  Fed.  731  (C.  C.  A.  Ills.):  "The 
Bankruptcy  Act  is  imperative  in  granting  to  the  bankrupt  the  right  to  a  dis- 
charge 'unless  he  has  (l)  committed  an  offense  punishable  by  imprisonment  as 
herein  provided:  or  (2)  with  fraudulent  intent  to  conceal  his  true  financial  con- 
dition.    *     *     *'  " 

In  re  Marshall  Paper  Co.,  4  A.  B.  R.  468,  102  Fed.  872  (C.  C.  A.  Mass.); 
"The  court  is  *  *  *  to  deny  the  application  for  discharge  upon  a  ground  not 
set  forth  in  this  section.  *  *  *  a  refusal  to  grant  a  discharge  cannot  be  said 
to  rest  in  the  discretion  of  the  judge.  The  words,  'investigate  the  merits 
of  the  application,'  must  be  taken  in  connection  with  the  context.  To  construe 
these  words  as  if  they  stood  alone  and  disconnected  from  what  follows  would 
be  to  leave  the  whole  question  of  discharge  to  the  discretion  of  the  court. 
Looking  at  the  entire  section,  we  do  not  think  these  words  will  bear  such 
a  construction,  however  desirable  it  may  seem  to  the  court  in  a  particular 
case  to  so  interpret  them.  It  seems  to  us  that  Congress  in  this  section  clearly 
specifies  the  only  causes  for  which  a  discharge  can  be  denied,  and  leaves 
to  the  court  the  sole  duty  of  deciding,  after  due  hearing,  whether  such  cause 
exists. 

'"When   the  bankrupt  files   his   petition  for  a   discharge,   the   only  facts  plead- 

40.  See  Bankr.  Act,  §  14  (b).  In  re  McCarty.  7  A.  B.  R.  40,  111  Fed.  151  (D. 
C.  Ills.),  quoted  post,  §  2663.     In  re  Frank,  6  A.  B.  R.  156  (D.  C.  Penn.). 

But  it  is  improper  to  say  he  is  entitled  to  his  discharge  unless  he  has  com- 
mitted an  offense  punishable  by  the  Bankrupt  Act,  for  his  discharge  is  barred 
by  his  destruction  of  books,  etc.,  which  is  not  an  "offense." 

Strause  t:  Hooper,  5  A.  B.  R.  230,  105  Fed.  590  (D.  C.  N.  Car.);  In  re  How- 
den,  7  A.  B.  R.  193,  111  Fed.  723  (D.  C.  N.  Y.) ;  In  re  Wetmore,  6  A.  B.  R.  703 
(Ref.  N.  Y.);  In  re  Miller,  13  A.  B.  R.  345,  133  Fed.  1017  (D.  C.  Pa.);  In  re 
Blalock.  9  A.  B.  R.  266,  118  Fed.  679  (D.  C.  S.  C);  In  re  Thomas,  1  A.  B.  R. 
515,  92  Fed.  912  (D.  C.  Iowa);  In  re  Hixon,  1  A.  B.  R.  610,  93  Fed.  440  (D.  C. 
Iowa);  inferentially.  In  re  Mussey,  3  A.  B.  R.  592,  99  Fed.  710  (D.  C.  Mass.); 
In  re  Peacock,  4  A.  B.  R.  136,  101  Fed.  560  (D.  C.  N.  Car.);  In  re  McGurn,  4  A. 

B.  R.  459,  102  Fed.  743  (D.  C.  Xev.) ;  In  re  Black,  4  A.  B.  R.  471  (note),  97  Fed. 
493  (D.  C.  Calif.). 

Contra,  In  re  Fleishman,  9  A.  B.  R.  557,  120  Fed.  960  (D.  C.  Ills.):  In  this 
case  discharge  was  refused  because  the  bankrupt  refused  to  surrender  property 
that  had  been  scheduled.  Perhaps  this  decision  could  be  brought  under  the  rule 
that  one  in  contempt  of  court  may  not  be  heard. 

Inferentially,  apparently  contra.  In  re  Walther,  2  A.  B.  R.  702,  95  Fed.  941  (D. 

C.  N.  Y.);  apparently  contra.  In  re  Steindler  &  Hahn,  5  A.  B.  R.  63  (Ref.  N.  Y.). 


I   2470  OPPOSITION  TO  DISCHARGE.  1493 

able  in  opposition  thereto  are  those  which  show  that,  under  the  provisions  of 
§  14,  he  is  not  entitled  to  a  discharge.  In  other  words,  it  must  be  shown  that 
he  has  committed  some  one  of  the  offenses  described;  otherwise,  the  judge 
'shall'   discharge   the   applicant. 

"The  right  to  discharge,  and  the  effect  of  a  discharge,  are  wholly  distinct 
propositions.  The  proper  time  and  place  for  the  determination  of  the  effect  of 
a  discharge  is  when  the  same  is  pleaded  or  relied  upon  by  the  debtor  as  a  de- 
fense to  the  enforcement  of  a  particular  claim.  The  issue  upon  the  effect  of 
a  discharge  cannot  properly  arise  or  be  considered  in  determining  the  right  to 
a  discharge." 

This  case  reverses  In  re  Marshall  Paper  Co.,  2  A.  B.  R.  653,  102  Fed.  872, 
wherein  the  lower  court  had  held:  "The  judge  *  *  *  is  required  to  'investi- 
gate the  merits  of  the  application'  and  hence  is  ncA  confined  to  the  consideration 
of  those  objections  to  the  discharge  which  are  properly  set  forth  by  the  cred- 
itors." 

In  re  Crist,  9  A.  B.  R.  1,  116  Fed.  1007  (D.  C.  Ala.) :  "The  court  investigates 
the  merits  of  the  application,  and  will  discharge  the  applicant,  unless  he  has 
committed  an  offense  punishable  by  imprisonment,  as  provided  by  the  Bankrupt 
Act,  or  has  concealed  or  failed  to  keep  books,  etc." 

In  re  Fades,  16  A.  B.  R.  31  (C.  C.  A.  Ills.):  "Under  §  14  *  *  *  the  bank- 
rupt is  entitled  to  a  discharge,  on  due  application,  unless  guilty  of  one  of  the 
offenses  there  .specified,  and  the  objector  has  the  burden  of  proof  upon  such 
issue.  The  question  whether  the  grounds  for  denying  a  discharge  are  wisely 
so  limited  cannot  enter  into  consideration  when  an  issue  is  raised,  and  the  terms 
of  the  act  are  plain  that  the  application  is  deniable  only  upon  due  proof  of  com- 
mission of  one  of  these  enumerated  ofifenses." 

In  re  Hirsch,  2  A.  B.  R.  715,  96  Fed.  468  (D.  C.  Tenn.) :  "It  has  been  very 
earnestly  and  forcibly  argued  that  §  7  of  the  Act  of  1898  makes  it  the  duty  cf 
the  bankrupt  to  prepare,  make  oath  to,  and  file  in  court  a  schedule  of  his  property, 
the  location  thereof,  and  testimony  of  the  value  in  detail,  and  that  a  failure 
to  discharge  this  duty  is  of  itself  a  sufficient  ground  for  the  court  to  deny  the 
discharge.  As  already  intimated,  the  statute  does  not  present  the  grounds  of 
opposition  to  a  discharge  in  that  way.  It  is  specific  and  definite  in  prescribing 
that  conduct  of  a  bankrupt  which  shall  defeat  him  of  his  discharge,  and  the 
courts  can  incorporate  into  the  statute  hq  other  grounds  of  ©pposition.  Indeed, 
the  general  scheme  of  this  act  seems  very  narrowly  to  limit  the  grounds  for 
withholding  a  discharge,  and,  on  the  other  hand,  to  declare  that  is  shall  have  no 
effect  as  against  creditors  who  have  certain  rights  and  equities  against  the  bank- 
rupt as  prescribed  in  the  statute,  some  of  which  were,  under  former  acts,  pre- 
scribed as  grounds  for  denying  the  discharge." 

Thus,  a  merely  preferential  transfer  by  the  bankrupt  is  insufficient  to 
bar  discharge."*  1 

§  2470.  Though  Bankrupt  Owes  Nondischargeable  Debts;  or 
Only  Debt  Scheduled  Be  Nondischargeable. — And  such  discharge  is 
to  be  granted  though  the  bankrupt  owes  debts  that  are  not  dischargeable.^^ 

41.  In  re  Maher,  16  A.  B.  R.  340,  144  Fed.  505  (D.  C.  Mass.,  affirming  15  A.  B. 
R.  786);  impliedly.  In  re  Gaylord,  7  A.  B.  R.  1,  112  Fed.  668  (C.  C.  A.  N.  Y., 
affirming  5  A.  B.  R.  410).     See  post,  §  2496. 

42.  In  re  Rhutassel,  2  A.  B.  R.  697,  96  Fed.  597  (D.  C.  Iowa);  In  re  McCarty, 
7  A.  B.  R.  40,  111  Fed.  151  (D.'C.  111.);  obiter,  In  re  Brumbaugh,  12  A.  B.  R. 
204,  128  Fed.  971  (D.  C.  Pa.);  In  re  Liever,  3  A.  B.  R.  217  (Master,  Penn.j; 
In  re  Tinker,  3  A.  B.  R.  580,  99  Fed.  79  (D.  C.  N.  Y.) ;  in  this  case,  however, 
the  undischargeability  was  questioned.  In  re  Peacock,  4  A.  B.  R.  136,  101  Fed. 
560  (D.  C.  N.  Car.). 


1494  REMINGTON  ON  BANKRUPTCY.  §  2475 

Obiter,  In  re  Carmichael,  2  A.  B.  R.  815,  96  Fed.  594  (D.  C.  Iowa):  "*  *  * 
if  he  had  a  judgment  against  the  bankrupt  for  willful  and  malicious  injury  to 
his  property,  that  fact  would  not  defeat  the  granting  the  discharge,  but  would 
only  except  the  judgment  from  the  effect  of  the  discharge  under  the  provision 
of  §  17  of  the  act." 

Or  though  the  only  claim  scheduled,  or  proved,  is  an  undischargeable 
claim.^2 

§  2471.  Or  Though  Opposing  Creditor's  Debt  Nondischargeable 
or  One  against  Which  No  Exemption  Exists. — And  the  discharge  is 
to  be  granted  although  the  creditor  opposing  the  discharge  has  an  undis- 
chargeable claim  f^  or  one  5gainst  which  there  are  no  exemptions.'*^ 

§  2472.  Or  Though  Only  One  Debt  Exists.— And  that  there  is  only 
one  debt  scheduled,  is  no  bar  to  discharge.^*^ 

§  2473.  That  Only  Partnership  Debts  Exist,  No  Bar  to  Dis- 
charge in  Individual  Bankruptcy. — And  that  the  only  debts  of  the 
bankrupt,  in  an  individual  bankruptcy,  are  partnership  debts,  is  no  bar  to 
his  discharge.  The  right  to  a  discharge,  and  the  effect  of  it  on  the  particu- 
lar debt,  are  different  propositions.^'^  The  partnership  debts,  moreover, 
are  "provable"  against  the  individual  estate,  though  not  entitled  to  divi- 
dends   therefrom  until  individual  creditors  are  paid. 

§  2474.  Intervening  Insanity  or  Death,  No  Bar. — Intervening  in- 
sanity is  not  ground  for  refusing  the  discharge;*^  nor  is  intervening  death, 
apparently  .4^ 

§  2475.  Undetermined  Petition  for  Discharge  in  Pending  Bank- 
ruptcy under  Old  Law  of  1867,   Not  a  Bar. — An  undetermined  ap- 

43.  In  re  McCarty,  7  A.  B.  R.  40,  111  Fed.  151  (D.  C.  Ills.) :  A  judgment  for 
seduction.     Contra,  In  re  Maples,  5  A.  B.  R.  426,  105  Fed.  919  (D.  C.  Mont.). 

44.  Obiter,  In  re  Brumbaugh,  12  A.  B.  R.  204,  128  Fed.  971  (D.  C.  Pa.);  obiter,. 
In  re  Carmichael,  2  A.  B.  R.  815,  96  Fed.  594  (D.  C.  Iowa). 

45.  In  re  Brumbaugh,  12  A.  B.  R.  204,  128  Fed.  971  (D.  C.  Pa.). 

46.  In  re  Tinker,  3  A.  B.  R.  580,  99  Fed.  79  (D.  C.  N.  Y.) ;  In  re  Frank,  6  A. 
B.  R.  156  (D.  C.  Pa.). 

47.  Contra,  In  re  Meyers,  2  A.  B.  R.  707,  96  Fed.  408  (D.  C.  N.  Y.).  Also 
contra.  In  re  Meyers,  3  A.  B.  R.  260,  97  Fed.  757  (D.  C.  N.  Y.) :  These  two 
cases  are  wrong  in  principle.  Even  if  it  were  correct  to  hold  (and  the  holding 
is  doubtful)  that  a  discharge  in  an  individual  proceedings  does  not  discharge 
partnership  obligations,  yet  it  would  be  improper  to  refuse  discharge  on  that 
ground  although  the  only  debts  scheduled  are  firm  debts.  The  bankrupt,  unle-s 
he  has  done  one  of  the  things  mentioned  in  the  statute  as  barring  discharge  is 
entitled  to  his  discharge  for  what  it  is  worth  and  its  effect  is  not  to  be  deter- 
mined in  advance. 

48.  In  re  Miller,  13  A.  B.  R.  345,  133  Fed.  1017  (D.  C.  Pa.).     See  ante,  §  98. 
But  a  guardian  ad  litem  should  be  appointed:     In  re  Miller,  13  A.  B.  R.  345, 

133   Fed.  1017;   In  re  Burka,  5  A.  B.  R.  843,  167  Fed.  674   (D.   C.  Tenn.).     See 
ante,  §  98. 

49.  Obiter,  In  re  Miller,  13  A.  B.  R.  345,  133  Fed.  1017  (D.  C.  Pa.).  See  ante, 
§  98. 


§    2478  OPPOSITION   TO  DISCHARGE.  1495 

plication   for  discharge  in  a  still  pending  bankruptcy,  under  the  old  law 
of  1867,  is  no  bar  to  a  discharge  under  the  present  act.-^o 

§  2476.  Whether  Misconduct  in  Former  Bankruptcy,  Bar. — It  is  a 

question  whether  misconduct  of  a   bankrupt   in  a   former  bankruptcy  is 
a  bar.51 

§  2477.  Lack  of  Sufficient  "Residence,  Domicile  or  Principal 
Place  of  Business"  in  District,  No  Bar. — The  objection  that  the  bank- 
rupt is  a  nonresident  of  the  district,  or  does  not  have  his  principal  place 
of  business  nor  domicile  there,  will  not  be  considered  as  a  bar  upon  an 
application  for  discharge.52 

In  re  Clisdell,  4  A.  B.  R.  95,  101  Fed.  246  (D.  C.  N.  Y.,  reversing  2  A.  B.  R. 
424):  "Whether  or  not  the  court  was  right  in  adjudicating  Clisdell  a  bankrupt,  is 
not  now  in  issue.  He  has  been  adjudicated  a  bankrupt.  The  petition  was  insuffi- 
cient on  its  face,  and  nothing  appeared  in  that  proceeding  challenging  the  juris- 
diction of  the  court.  The  opposing  creditor  appeared  and  filed  his  proof  of  claim 
and  examined  the  bankrupt  before  the  referee.  Here  then  is  a  bankrupt  duly  ad- 
judicated. His  petition  for  a  discharge  is  a  separate  and  distinct  proceeding.  The 
court  is  familiar  with  no  rule  of  law  by  which,  in  such  circumstances  as  are  here 
shown,  objections  disputing  jurisdiction  in  the  original  proceeding  can  be  thus  de- 
termined collaterally.  It  is  too  late.  Certainly  there  is  no  provision  of  the  bank- 
ruptcy law  which  authorizes  such  a  course.  The  petition  for  a  discharge  rests 
upon  the  fundamental  proposition  that  the  petitioner  has  been  adjudicated  a 
bankrupt,  and  the  objections  which  may  be  interposed  and  litigated  are  those 
pointed  out  in  §§  14  and  29  of  the  act.  It  would  involve  the  administration  of  the 
law  in  endless  confusion  if  the  issue  of  domicile  can  be  raised  in  every  matter 
growing  out  of,  or  ancillary  to,  the  original  bankruptcy  proceedings." 

§  2478.  Collateral  Attack  on  Jurisdiction,  for  Lack  of  "Resi- 
dence," etc. — If  lack  of  residence,  domicile,  etc.,  appears  affirmatively 
on  the  face  of  the  record  itself  and  not  by  mere  omission,  probably  this 
defect  is  available  on  discharge  as  well  as  elsewhere,  collaterally.  Lack 
of  sufficient  residence,  etc.,  being  a  cjuestion  going  to  the  very  jurisdiction 
of  the  court  over  the  subject,  it  would  perhaps  seem  proper  to  raise  it 
at  any  time  and  any  branch  of  the  proceedings.  Being  an'  attack  on  the 
adjudication,  however,  it  should  be  direct  and  not  collateral,  unless  the 
adjudication  is  void  on  its  face.  And  it  would  not  be  void  on  its  face, 
•probably,  by  mere  omission  of  any  allegation,  whatsoever,  on  the  subject, 
but  only  by  affirmative  facts  appearing  on  the  record  practically  denying 
residence,  etc.^^ 

50.  In  re  Herrman,  4  A.  B.  R.  139,  102  Fed.  733  (D.  C.  N.  Y.). 

51.  Obiter.  In  re  Feigenbaum,  9  A.  B.  R.  597,  121  Fed.  69  (C.  C.  A.  N.  Y.j. 
See  "False  Oath,"  §§  2531,  2532.     Compare  ante,  §  2439. 

52.  In  re  Goodale,  6  A.  B.  R.  493,  109  Fed.  783  (D.  C.  N.  Y.).     See  ante,  §  450. 

53.  See  ante,  §  450. 

And  it  has  been  held  that  this  objection  cannot  be  raised  where  the  creditor 
has  been  guilty  of  laches.  In  re  Mason,  3  A.  B.  R.  599,  99  Fed.  256  (D.  C.  N. 
Car.);  In  re  Clisdell,  4  A.  B.  R.  95,  101  Fed.  246  (D.  C.  N.  Y.). 

But  laches  could  bar  the  right  only  where  the  defect  does  not  affirmatively 
appear  on  the  face  of  the  record. 


1496  re;mington  on  bankruptcy.  §  2480 

§  2479.  Filing  of  Petition  for  Discharge  after  Expiration  of 
Year. — That  the  petition  for  discharge  was  not  filed  until  after  the  ex- 
piration of  the  year  will  not  be  considered  on  the  hearing  in  opposition  to 
a  discharge,  for  it  will  be  presumed  to  have  been  filed  on  leave  granted  and 
sufficient  showing.^^  However,  if  the  record  affirmatively  shows  it  was 
not  filed  until  after  eighteen  months,  it  may  be  attacked  collaterally,  as 
no  showing  can  be  presumed  possible  to  validate  such  a  belated  petition.^^ 

§  2480.  Withholding  Discharge  or  Dismissing  Discharge  Peti- 
tion, for  Other  Causes — Noncompliance  with  Rules,  Want  of  Pros- 
ecution, etc. — But  the  court  may  temporarily  withhold  the  discharge  and 
even  dismiss  the  petition  for  discharge  altogether  for  causes  other  than 
those  mentioned  in  the  statute  as  bars  to  discharge.  Thus,  it  may  with- 
hold the  discharge  temporarily  for  noncompliance  with  the  rules  of  court 
relative  to  the  discharge ;  or  may  dismiss  it  altogether  for  want  of  prose- 
cution or  lack  of  jurisdiction. 

The  rule  that  the  court  "shall"  grant  the  discharge  unless  one  or  more 
of  the  grounds  expressly  stated  in  the  statute  as  bars  of  discharge  exist, 
must  be  taken  with  necessary  qualification.  It  assuredly  does  not  mean 
that  the  bankrupt's  application  for  discharge  "shall"  be  granted,  even  where 
no  statutory  bar  exists,  if  the  petition  itself  is  framed  improperly  or  filed 
after  the  expiration  of  eighteen  months,  or  if  the  rules  of  court  have  not 
been  complied  with,  or  if  lack  of  jurisdiction  exists.  Notwithstanding  none 
of  the  statutory  grounds  for  barring  a  discharge  be  proved,  nevertheless 
the  court  may  (even  upon  its  own  motion)  dismiss  a  petition  for  want 
of  prosecution,  or  for  lack  of  jurisdiction,  or  may  temporarily  withhold  dis- 
charge until  the  orders  of  the  court  relating  to  the  discharge  have  been 
complied  with. 

Thus,  it  has  been  previously  noted  in  chapter  1  of  this  part  that  the 
petition  for  discharge  may  be  dismissed  for  want  of  prosecution;  and  it 
has  also  previously  been  noted,  in  considering  the  subject  of  the  adjudi- 
cation, that  for  lack  of  jurisdiction  the  court  may  vacate  the  adjudication 
and  dismiss  the  entire  proceedings,  which  would,  of  course,  include  the 
dismissal  of  the  petition  for  discharge.  Failure  to  comply  with  the  rules 
and  orders  of  the  court  relative  to  the  form  of  the  petition  for  discharge 
and  the  requirements  of  the  filing  of  it,  without  question  would  warrant* 
the  temporary  withholding  of  the  discharge  until  compliance  had  been 
had  therewith ;  and  this  was  undoubtedly  a  proper  exercise  of  power  even 
before  the  amendment  of  1903  added,  as  a  bar  to  discharge,  the  refusal  of 
the  bankrupt  to  obey  any  lawful  order  of  the  court. ^"^ 

Strause  v.  Hooper,  5  A.  B.  R.  230,  105  Fed.  590  (D.  C.  N.  Car.):  "The  ob- 
jections  to  the   discharge   of  the  partnership   of  J.   A.    Hooper    &   Co.   are   not 

54.  In  re  Hayncs  &  Son,  10  A.  B.  R.  13,  122  Fed.  560  (D.  C    Pa) 

55.  In  re  Fahy,  8  A.  B.  R.  354,  116  Fed.  239  (D.  C.  Iowa) 

56.  See  post,  §  2582. 


§    2481  OPPOSITION   TO  DISCHARGE.  1497 

such  as  are  contemplated  in  the  act  as  grounds  upon  which  a  discharge  may  be 
refused.     *     *     * 

"The  court  will  not  seek  for  grounds  upon  which  to  refuse  or  even  delay  a 
discharge,  but  hear  and  consider  them  when  properly  presented.  The  court 
must,  however,  in  every  case  look  to  see  that  the  law  and  rules  have  been  com- 
plied with.  In  the  case  at  bar  there  is  no  evidence  or  certificate  of  conformity 
as  required  by  District  Rule  8;  no  proof  of  publication.  The  order  for  dis- 
charge is  therefore  posponed  until  the  court  is  satisfied  the  law  and  rules  have 
Deen  complied  with,  and  the  bankrupts  entitled  to  the  discharge." 

But  much  more,  however,  may  not  legally  be  done  by  the  court;  for  no 
right  otherwise  exists  for  refusing  a  discharge,  except  upon  the  grounds 
mentioned  in  the  statute.^' 

§  2481.  Buying  Off  Opposition  to  Discharge. — If  the  prosecution 
of  opposition  is  bought  off  after  specifications  in  opposition  have  been 
filed,  the  specifications  will  not  be  dismissed.  Either  the  court  will,  if 
hearing  has  been  had,  proceed  to  final  decree ;  or  it  will  give  opportunity 
to  other  creditors  upon  due  notice,  to  take  up  the  opposition.-^^ 

I 

57.  Temporarily  Holding  Discharge  in  Abeyance,  for  "More  Thorough  In- 
vestigation."— It  has  been  held  that  the  judge  may  temporarily  hold  the  entire 
discharge  matter  in  abeyance  pending  a  more  thorough  investigation,  although 
hearing  has  been  had,  if  probable  cause  appears. 

In  re  Steed  &  Curtis,  6  A.  B.  R.  73,  107  Fed.  682  (D.  C.  N.  Car.):  This  deci- 
sion lays  down  a  rule  that  is  liable  to  abuse.  The  better  rule  is  that  the  op- 
posing creditors  should  present  their  evidence  in  accordance  with  usual  procedure 
and  if  they  cannot  then  substantiate  their  allegations,  with  the  requisite  degree 
of  certainty,  the  discharge  must  be  granted  and  must  not  be  delayed  in  order  to 
furnish  opportunity  for  them  to  make  up  for  their  dilatoriness  or  inability. 

However,  see  further,  along  the  same  line  as  In  re  Stead,  the  case.  In  re 
Walther,  2  A.  B.  R.  702,  95  Fed.  941  (D.  C.  N.  Y.) :  "It  is  the  duty  of  the 
bankrupt  to  present  an  intelligent  and  true  statement  of  her  affairs,  to  show 
clearly  what ^ goods  her  husband  left,  what  she  added  and  comirbingled  with 
the  same,  and  the  disposition  made  of  each  class  of  property,  and  thereupon  to 
account  for  the  property  that  should  inure  to  the  benefit  of  her  creditors.  The 
court  will  not  permit  her  to  plea.d  ignorance,  and  assert  that  she  acted  through 
agents,  and  that  all  detailed  knowledge  rests  with  such  agents,  and  that  the 
court  must  look  to  such  source  for  information.  She,  at  a  recent  time,  had  prop- 
erty. What  has  she  done  with  it?  If  she  cannot,  through  herself  or  others, 
make  the  explanation,  her  discharge  should  be  withheld."'  In  re  .Finkelstein,  3 
A.  B.  R.  800,  101  Fed.  418  (D.  C.  N.  Y.). 

Withholding  Discharge  unjtdl  "Proper  Accounting"  Given  by  Bankrupt. — And 
it  has  also  been  held  that  the  judge  may  temporarily  withhold  discharge  until 
the  bankrupt  gives  proper  accounting,  although  he  pleads  ignorance  of  details. 
In  re  Walther,  2  A.  B.  R.  702,  95  Fed.  941  (D.  C.  N.  Y.);  In  re  Hyman,  3  A.  B. 
R.  169,  97  Fed.  195  (D.  C.  N.  Y.) ;  In  re  Finkelstein,  3  A.  B.  R.  800,  101  Fed.  418 
(D.  C.  N.  Y.). 

Withholding  Discharge  for  Correction  of  Mistakes  as  to  Exemptions. — And 
that  he  may  temporarih'  withhold  discharge  until  mistakes  in  setting  apart 
exemptions  have  been  corrected.  In  re  McBryde,  3  A.  B.  R.  731,  99  Fed.  686 
(D.  C.  N.  Car.). 

58.    Compare,  "Crimes  against  the  Bankruptcy  Act,"  ante,  part  IX. 

Compare,  In  re  Sanborn,  12  A.  B.  R.  428,  131  Fed.  397  (D.  C.  N.  Y.)  :  In  th-'s 
case  the  court  in  substance  held  that,  where  presumptively  a  discontinuance  of 
the  opposition  to  a  bankrupt's  discharge  was  secured  because  of  some  act, 
either  by  him  or  on  his   behalf  and   the   referee   refused  the   certificate   of  con- 


1498  REMINGTON  ON  BANKRUPTCY.  §  2481 

This  much  can  and  ought  to  be  done,  otherwise  cohusive  oppositions  will 
be  encouraged  and  the  interests  of  the  community  in  the  just  determination 
of  the  status  of  the  debtor  be  prejudiced. 

Aluch  more,  however,  cannot  properly  be  done  by  the  court. 

Compare,  In  re  Dietz,  3  A.  B.  R.  316,  97  Fed.  563  (D.  C.  N.  Y.) :  "There  is  no 
doubt  that  if  the  opposition  of  the  creditor  is  bought  off  through  the  procure- 
ment or  privity  of  the  bankrupt,  it  is  such  fraud  upon  the  act  as  would  warrant 
vacating  the  discharge,  the  fact  itself  being  prima  facie  evidence  that  the  bank- 
rupt was  not  entitled  to  it.  Tuxbury  v.  Miller,  18  Johns.  311;  In  re  Douglass 
(D.  C.)  11  Fed.  403,  406;  In  re  Palmer,  14  N.  B.  R.  437,  Fed.  Cas.  No.  10,678; 
Balsdel  v.  Fowle,  120  Mass.  447;  Bell  v.  Leggett,  7  N.  Y.  176.  The  general 
subject  was  very  fully  considered  in  the  case  last  cited,  and  it  was  declared  to 
be  'of  no  consequence  that  the  arrangement  was  made  between  the  creditors 
of  the  bankrupt  and  a  third  person  without  the  intervention  or  knowledge  of 
the  bankrupt.' 

"All  such  arrangements  are  to  be  condemned,  as  at  variance  with  the  policy 
of  the  Bankruptcy  Acts,  whether  expressly  prohibited  by.  statute  or  not  (Smith 
V.  Bromley,  2  Doug.  696),  and  as  injurious  to  all  creditors,  because  calculated 

"  'To  suppress  inquiry  and  to  protect  fraud  and  concealment  from  successful 
disclosure  and  development,  *  *  *  and  to  give  the  bankrupt  a  benefit  de- 
signed for  the  honest  insolvent,  and  which  the  fraudulent  debtor  by  sound 
justice  and  express  provisions  of  the  statute  was  prohibited  from  receiving.' 

"In  the  case  of  Ex  parte  Briggs,  2  Low.  389,  Fed.  Cas.  No.  1,868,  where  a 
surety  of  the  bankrupt  upon  an  attachment  bond  paid  the  debt  to  a  creditor 
who  was  opposing  the  bankrupt's  discharge  on  his  own  account  and  wholly 
without  the  bankrupt's  knowledge  or  privity,  it  was  held  that  the  discharge  was 
not  vitiated.  Judge  Lowell,  however,  expressly  avers  that  that  was  an  excep- 
tional case;    and  he  adds: 

"  'I  do  not  intend  to  say  that  payment  by  a  friend  actually  made  in  behalf 
of  the  debtor  with  his  knowledge  is  not  prohibited,  nor  that  very  slight  evi- 
dence would  not  aflfect  him  with  participation.' 

"It  is  not  necessary'  for  me  to  make  any  ruling  in  this  case  on  the  effect  of 
a  withdrawal  of  opposition  procured  without  any  actual  or  constructive  knowl- 
edge or  participation  by  the  bankrupt.  I  am  not  satisfied  that  such  was  the 
present  case.  Though  the  verbal  protestations  are  very  strong  to  this  effect, 
the  circumstances  all  point  to  a  contrary  conclusion.  Not  indeed  that  the  bank- 
rupt personally  was  an  active  participant,  for  no  doubt  he  was  not;  but  his 
prior  personal  relations  to  Blumberg,  as  well  as  through  his  wife,  the  improba- 
bility that  this  sum  of  $500  w^ould  have  been  advanced  by  him  in  the  manner 
stated  without  the  bankrupt's  indirect  privity,  the  fact  that  the  money  was  lodged 

formity  required  by  Rule  10,  the  matter  would  be  referred  back  for  investiga- 
tion,  pending  which  the   discharge  would  be  withheld. 

Compare,  In  re  Steindler  &  Hahn,  5  A.  B.  R.  63  (Special  Master).  Compare, 
under  law  of  1867,  In  re  Douglass,  11  Fed.  403,  406.  Also  compare  under  law 
of  1867,  In  re  Palmer,  14  N.  B.  Reg.  437,  Fed.  Cases  No.  10,678.  But  compare 
qualification  of  rule  under  law  of  1867,  In  re  Briggs,  2  Low  389  Fed  Cases 
No.   1,868. 

Creditors  Whose  Own  Specifications  Insufficient,  Using  Specifications  of  Cred- 
itors Who  Fail  to  Appear. — Creditors  whose  own  specifications  have  been  in- 
sufficient may  in  the  discretion  of  the  court,  be  permitted  to  avail  themselves 
of  specifications  filed  by  other  creditors  who  have  failed  to  appear  to  prove 
them.     Obiter,  In  re  Wetmore,  6  A.  B.  R.  703  (Special  Master  N.  Y.). 


§  2482  OPPOSITION  TO  discharge;.  1499 

with  a  depository,  to  be  turned  over  only  after  the  discharge  was  granted, 
and  the  course  of  practice  necessary  to  procure  such  a  withdrawal  and  a  dis- 
charge of  the  bankrupt  through  the  bankrupt's  attorney  upon  such  a  with- 
drawal, show  that  the  transfer  of  these  claims  to  Blumberg  had  nothing  of  the 
character  of  a  mere  purchase  of  them  for  what  they  might  be  worth,  but  was 
a  very  carefully  planned  and  systematic  means  for  procuring  the  withdrawal 
of  the  opposition  and  thereupon  the  bankrupt's  discharge;  and  such  a  proced- 
ure could  not  well  take  place  without  the  privity,  concurrence  and  knowledge 
of  the  bankrupt's  attorney,  as  to  which  nothing  appears  in  the  opposing  affi- 
davits." But  this  was  a  case  of  revocation,  not  refusal,  of  discharge,  and  revo- 
cation may  be  had  for  fraud  alone. 

And  one  court  has  held,  obiter,  that  the  discharge  may  be  refused  on 
the  ground  that  opposition  thereto  was  bought  off. 

In  re  Luftig,  15  A.  B.  R.  778  (D.  C.  Mass.):  "I  am  unable  to  believe  that  the 
Act  requires  the  court  to  grant  a  discharge,  knowing  at  the  time  that  facts 
exist  which  would  thus  render  it  revocable  for  fraud  had  they  first  come  to 
light  after  it  was  granted,  although  no  cause  for  refusing  it  under  §  14b  is 
shown.  The  facts  proved  in  regard  to  the  settlement  of  the  Roseberg  claim 
would  therefore,  in  my  opinion,  justify  me  in  refusing  the  discharge  did  the 
case  present  no  other  reasons  for  doing  so,  but  other  sufficient  reasons  appear, 
wholly  independent  of  the  settlement  in  question." 

But  the  court  fails  to  note  that  fraud  alone  is  insufficient  to  obtain  revocation 
of  a  discharge.  It  musf  also  appear,  in  order  to  revoke,  that  "The  actual  facts 
did  not  warrant  the  discharge."     See  §  15. 

§  2482.  Discharge  Not  Refused  for  Acts  Committed  before  En- 
actment of  Law. — The  Bankruptcy  Law  is  not  retrospective  nor  retro- 
active, and  acts  of  the  bankrupt  committed  prior  to  the  passage  of  the 
bankruptcy  law,  will  not  bar  discharge.^ ^ 

Obiter,  In  re  Quackenbush,  4  A.  B.  R.  274,  102  Fed.  282  (D.  C.  N.  Y.) :  "If 
the  fraudulent  transfers  complained  of,  occurring  as  they  did  long  prior  to  the 
Act  of  1898,  had  culminated  at  the  time  they  were  made,  so  that  the  bankrupt's 
interest  in  the  property  passed  forever  beyond  his  control  and  became  vested 
legally  and  beneficially  in  the  transferees,  there  can  be  no  doubt  that  he  would 
be  entitled  to  his  discharge,  no  matter  how  preferential  and  fraudulent  the 
transfers  may  have  been  as  to  creditors  at  the  time.  In  other  words,  a  fraud 
committed  prior  to  the  law  making  it  a  crime  cannot  bar  a  discharge." 

[1867]  In  re  Moore,  Fed.  Cases  9,751:  "The  Bankrupt  Law  cannot  be  made 
to  have  a  retroactive  efifect,  and  punish  a  party,  by  refusing  him  a  discharge 
for  acts  committed  by  him  prior  to  the  passage  of  the  law.     A  fraudulent  pref- 

59.  In  re  Neely,  12  A.  B.  R.  409,  1.34  Fed.  667  (Ref.  N.  Y.,  affirmed  by  D.  C); 
In  re  Lieber,  3  A.  B.  R.  217  (Ref.)  :  "This,  however,  was  before  the  Amendment 
of  1903  removed  the  requirement  that  concealment,  etc.,  of  account  books  must 
be  in  contemplation  of  bankruptcy." 

Compare,  In  re  Scott,  11  A.  B.  R.  327,  126  Fed.  981  (D.  C.  Del.);  In  re  Webb, 
3  A.  B.  R.  386,  98  Fed.  414  (D.  C.  N.  Y.,  affirming  3  A.  B.  R.  204);  In  re  Shorer, 
2  A.  B.  R.  165,  .96  Fed.  90  (D.  C.  Conn.):  This,  however,  was  before  the  Amend- 
ment of  1903  removed  the  requirement  of  "contemplation  of  bankruptcy"  as  to 
concealment  of  books  of  account,  etc.  [1867]  In  re  Rosenfeld,  Fed.  Cases 
12,058;  [1867]  In  re  Hollenshade,  Fed.  Cases  6,610;  [1867]  In  re-  Delevan,  Fed. 
Cases  3,758;  [1867]  but  compare.  In  re  Creiew,  Fed.  Cases  No.  3,390. 


1500  REMINGTON  ON  BANKRUPTCY.  §  2482 

erence  or  transfer  of  a  debtor's  property,  by  the  act,  is  made  an  offense,  for 
which  the  punishment  prescribed  by  the  act  is,  a  failure  to  obtain  his  discharge. 
To  thus  punish  a  party,  the  offense  for  which  the  punishment  is  inflicted  must 
have  been  committed  since  the  passage  of,  and  in  violation  of,  a  law  then  in 
force." 

[1867]  In  re  Hussman,  Fed.  Cases  6951:  "The  withholding  of  a  discharge 
from  a  bankrupt  is  in  its  nature  a  penalty  for  some  improper  conduct,  and  to 
refuse  a  discharge  because  of  the  improper  conduct  of  the  bankrupt,  prior  to 
the  passage  of  the  Bankrupt  Act,  would  be  to  make  the  act  retroactive." 

[1867]  In  re  Keefer,  Fed.  Cases  7636:  "In  re  Rosenfield,  Cas.  No.  12,058, 
Judge  Field,  of  the  District  of  New  Jersey,  held  that  in  such  case,  the  act,  in 
order  to  constitute  a  bar  to  a  discharge,  must  have  been  committed  since  the  pas- 
sage of  the  Bankrupt  Act.  I  fully  concur  in  the  reasoning  and  conclusion  in 
that  case." 

[1867]  And  compare,  In  re  Goodfellow,  Fed.  Cas.  5536:  "It  has  been  argued 
in  behalf  of  the  bankrupt,  that,  granting  the  preferences  to  have  been  made, 
and  to  be  within  the  period  contemplated  by  the  statute,  still  they  were  made 
while  he  was  a  resident  of  the  province,  not  subject  to  our  law  and  not  con- 
templating bankruptcy  under  it,  and  that  in  such  a  case  the  law  cannot  affect 
him;  and  as  it  is  not  shown  that  the  acts  were  illegal  when  and  where  they 
were  done,  they  must  be  presumed  to  have  been  legal,  and  if  so,  they  are  good 
wherever  they  may  be  sought  to  be  impeached.  There  is  much  force  in  this 
argument,  and,  indeed,  it  would  be  irresistible  if  the  question  were  of  the  title 
to  the  goods  or  money  conveyed  in  preference,  or  o^  any  criminal  responsi- 
bility; but  the  question  here  is,  whether  a  person  who  applies  to  be  discharged 
from  his  debts  must  not  show  that  he  has  complied  with  the  conditions  imposed 
by  law,  even  although  he  was  not  aware  of  them  and  was  not  subject  to  the 
law  when  he  did  the  acts.  Congress  has  an  undoubted  right  to  annex  such  con- 
ditions as  it  chooses  to  the  grant  of  a  discharge.  It  might  enact,  for  instance, 
that  certain  things  done  before  the  passage  of  the  act  should  be  ground  for  refus- 
ing it.  And  this  seems  to  me  an  analogous  case.  The  statute  says:  'You  shall 
not  be  released  if  you  have  given  certain  preferences.'  Now,  preferences  are 
not  necessarily  illegal;  they  are  the  payment  of  just  debts.  It  depends  alto- 
gether upon  the  fact  of  subsequent  bankruptcy  within  a  certain  time  whether 
they  turn  out  to  be  legal  or  not.  The  fact  that  the  transaction  is  legitimate 
between  the  parties  and  even  against  all  the  world  is  not  important,  if  the  intent 
existed  in  the  mind  of  the  debtor.  The  act  requires  an  equal  distribution  of  the 
estate,  and  if  this  fails  through  the  act  of  the  debtor,  as,  for  instance,  if  he  has 
lost  a  part  of  it  in  gaming,  the  discharge  is  not  granted.  It  is  not  a  punishment; 
it  is  not  retroactive.  It  is  simply  a  condition  precedent.  *  *  *  jf  ^^g  estate 
of  the  debtor  has  been  disposed  of  in  accordance  with  the  Statute,  a  discharge 
shall  be  granted;   otherwise  not." 

[1867]  And  compare.  In  re  Seeley,  Fed.  Cas.  12,628:  "x\gain,  counsel  for  the 
bankrupt  argued  that  the  jury  ought  to  pass  upon  the  question  of  intent  in 
every  case,  as  the  acts  mentioned  in  §  5110  are  in  the  nature  of  offenses 
or  forfeitures  of  a  right  the  bankrupt  has  to  his  discharge,  and  the  proceeding  is 
therefore  quasi  criminal.  Support  for  this  position  is  found  in  an  incidental 
remark  of  Judge  Field  in  the  case  of  In  re  Rosenfield  (supra).  It  is  clear,  how- 
ever, that  a  man  has  no  moral  or  legal  right  to  be  released  of  his  debts,  except 
by  virtue  of  some  statute,  and  that,  in  the  enactment  of  such  statute,  Congress 
has  the  power  to  impose  such  conditions  as  it  pleases  to  the  granting  of  a  dis- 
charge. It  has,  indeed,  refused  it  altogether  in  voluntary  cases,  except  by  con- 
sent of  a  certain  proportion  of  creditors.     I  am  better  pleased  with  those  opin- 


§   2483  OPPOSITION  TO  DISCHARGE.  1501 

ions  which  treat  the  discharge  as  a  favor,  and  the  commission  of  one  of  the  acts 
specified,  as  the  violation  of  a  condition  precedent.  Such  was  the  position  of 
Judge  Hall  In  re  Cretiew,  Fed.  Cas.  No.  3,390,  and  of  Judge  Lowell  In  re 
Goodfellow,  Fed.  Cas.  No.  5,536." 

But  this  means  that  the  ultimate  act  forbidden  must  not  have  been  com- 
mitted before  the  passage  of  the  law,  and  does  not  mean  that  all  the 
evidentiary  facts  to  be  proved  in  order  to  show  the  bankrupt  guilty  of 
doing  the  forbidden  act  in  question  must  have  occurred  since  the  passage 
of  the  bankruptcy  law.  Thus,  if  the  bankrupt  has  perpetrated  a  fraudu- 
lent conveyance  before  the  passage  of  the  Bankruptcy  Act,  such  convey- 
ance is  still  voidable  at  the  suit  of  creditors;  and  therefore,  if,  knowingly 
and  fraudulently,  he  fails  to  reveal  the  recoverable  title  to  his  trustee, 
when  called  upon  in  his  examination  or  schedules  to  do  so,  he  is  guilty  of 
the  act  of  concealing  assets  subsequent  to  the  passage  of  the  bankruptcy 
law,  although  the  facts  making  the  conveyance  fraudulent  occurred  before 
the  passage  of  the  bankruptcy  law.^*' 

U.  S.  V.  Cohn,  15  A.  B.  R.  357,  142  Fed.  983  (D.  C.  N.  Y.) :  "This  provision 
of  the  Bankrupt  Act  does  not  make  any  act  of  the  bankrupt  before  the  bank- 
ruptcy criminal.  But  if  a  bankrupt,  before  the  bankruptcy,  has  concealed  his 
property,  and,  after  his  trustee  is  appointed,  continues  to  conceal  it  from  the 
trustee,  he  is  criminally  liable  under  this  section,  and,  if  indicted  for  such  crime, 
evidence  of  his  acts  of  concealment  before  the  bankruptcy,  as  well  as  those 
subsequent  thereto,  would  undoubtedly  be  admssible  as  a  part  of  the  res  gestae. 
A  conspiracy  to  commit  a  crime  always,  in  the  nature  of  the  case,  precedes  the 
commission  of  the  crime;  and,  in  my  opinion,  it  does  not  follow,  because,  at 
the  time  that  a  conspiracy  is  entered  into  to  conceal  property  from  a  trustee, 
no  trustee  has  been  appointed  and  no  proceedings  in  bankruptcy  begun,  that, 
therefore,  the  crime  of  conspiracy  under  §  5440  cannot  have  occurred." 

In  re  Scott,  11  A.  B.  R.  331,  126  Fed.  981  (D.  C.  Del.):  "A  statute  is  not 
necessarily  retroactive  or  retrospective  because  its  operation  in  a  given  case  may 
be  dependent  upon  an  occurrence  anterior  to  its  passage,  or,  in  the  language 
of  Endlich,  'because  a  part  of  the  requisites'  for  its  action  is  drawn  from  a  time 
antecedent  to  its  passing.'  " 

Likewise,  continuing  concealment  of  books  of  accounts  may  be  per- 
petrated by  failure,  after  bankruptcy,  to  reveal  their  known  whereabouts, 
although  the  original  concealment  was  done  before  the  passage  of  the 
Bankruptcy  Act.'^i  Likewise,  continuing  failure  to  keep  books  of  ac- 
counts with  intent  to  conceal  financial  condition  may  be  perpetrated  by 
intentionally  continuing  a  defective  and  wholly  insufficient  method  of 
keeping  books,  begun  before  the  passage  of  the  Bankrupt  Act.^^ 

§  2483.  Right  to  Discharge  Governed  by  Law  as  It  Stood  at  Time 
of  Filing  Bankruptcy  Petition. — The  right  to  a  discharge  is  governed 
by  the  law  as  it  stood  at  the  time  of  the  filing  of  the  bankruptcy  petition; 

60.  In  re  Quackenbush,  4  A.  B.  R.  274,  102  Fed.  282  (D.  C.  N.  Y.). 

61.  In  re  Kamsler,  2  N.  B.  N.  &  R.  97  (Ref.  N.  Y.). 

62.  In  re  Feldstein,  8  A.  B.  R.  160,  115  Fed.  259  (C.  C.  A.  N.  Y.). 


1502  REMINGTON  ON  BANKRUPTCY.  §  2485 

for   the  regulation  of   conditions   on   which   discharges   are  granted   is   a 
purely  remedial  matter.^^ 

§  2484.  Fraudulent  Acts  of  Agents  and  Partners  Not  Imputable 
unless  Actual  Knowledge  Exists,  Where  Commission  of  "Offense" 
Is  Ground  Urged. — Where  the  ground  charged  is  the  commission  of  one 
of  the  offenses  punishable  by  imprisonment,  the  fraudulent  conduct  or 
concealment  perpetrated  by  an  agent  or  manager  of  business  for  the 
bankrupt  or  partner,  will  not  be  imputed  to  the  individual  bankrupt,  with- 
out showing  his  knowledge  thereof  and  participation  therein.^^ 

Obiter,  In  re  ]\Ieyers,  5  A.  B.  R.  4,  105  Fed.  353  (D.  C.  N.  Y.) :  "*  *  *  if 
the  question  were  before  me  de  novo,  I  should  be  inclined  to  consider,  as  no 
'offense'  or  penal  element  exists  in  the  requirements  of  this  subdivision,  that  the 
principal  is  responsible,  as  respects  a  discharge  in  bankruptcy,  for  the  fraud- 
ulent conduct  of  the  agent  to  whom  the  whole  business  has  been  committed, 
as  in  civil  cases  generally,  where  the  fraud  has  been  committed  for  the  prin- 
cipal's benefit.  But  as  that  point  seems  to  have  been  involved  in  the  case  last 
cited  and  a  contrary  decision  was  then  made  by  Judge  Thomas,  sitting  in  this 
district,  it  will  be  followed  until  otherwise  ruled  upon  appeal." 

In  re  Hyman,  3  A.  B.  R.  169,  97  Fed.  195  (D.  C.  N.  Y.) :  "Fraudulent  intent 
is  a  personal  quality,  and,  although  it  existed  in  the  mind  of  the  husband,  it 
may  not,  for  that  reason  be  imputed  to  the  wife." 

In  re  Schultz,  6  A.  B.  R.  92,  109  Fed.  264  (D.  C.  N.  Y.):  "If  in  any  case 
fraud  can  be  similarly  imputed  to  an  innocent  partner  on  account  of  the  fraud 
of  his  copartner  or  other  agent  as  respects  the  false  or  improper  keeping  of 
books  of  account  (see  In  re  Meyers,  5  Am.  B.  R.  4,  105  Fed.  353,  354),  it  can 
only  be  in  cases  where  the  fraudulent  entries  or  omissions  have  reference  to 
partnership  transactions  so  as  to  fall  within  the  general  scope  of  the  partner's 
or  agent's  authority. 

"The  frauds  in  the  bookkeeping  in  this  case  related  to  transactions  of  a  wholly 
different  character,  in  which  the  partner  was  defrauding  his  copartner,  as  well 
as  his  creditors,  in  reference  to  transactions  wholly  outside  the  partnership 
authority." 

Contra,  obiter,  In  re  Berry,  15  A.  B.  R.  360  (D.  C._  N.  Y.) :  "The  ground  upon 
which  the  referee  has  granted  the  discharge,  that  the  stock  was  pledged  by 
emiployes  of  the  bankrupts,  and  not  by  the  bankrupts  themselves,  and  that 
therefore  the  bankrupts  had  no  intent  in  the  matter,  and  therefore  are  not 
barred  from  a  discharge  by  such  act,  seems  to  me  untenable.  The  employees 
who  pledged  this  stock  were  given  complete  control  of  the  business  of  borrow- 
ing money  for  the  firm  on  securities.  If  such  employees,  having  such  general 
authority,  had  in  fact  transferred  the  bankrupts'  property,  with  intent  to  de- 
fraud the  bankrupts'  creditors,  I  think  that  the  bankrupts'  discharge  would  have 
been  barred."  •  . 

§  2485.  How,  Where  Ground  Charged  Is  Not  Commission  of 
"Offense." — But  perhaps   the   same   rule    would    not    apply    where   the 

63.  In  re  Peterson,  10  A.  B.  R.  355,  122  Fed.  101   (D.  C.  Minn.). 

64.  Compare,  apparently  contra,  although  distinguishable.  In  re  Hardie  & 
Co.,  16  A.  B.  R.  313,  143  Fed.  421  (D.  C.  Tex.). 


§   2488  '       OPPOSITION  TO  DISCHARGE.  1503 

ground  charged   is   not  the  commission  of  a  punishable  offense ;  and  in 
such  cases  the  act  of  the  partner  or  other  agent  may  be  imputed.*^^ 

Obiter,  In  re  Meyers,  oA.  B.  R.  4,  105  Fed.  354  (D.  C.  N.  Y.) :  "As  respects 
the  destruction  or  concealment  of  books  of  account,  'with  fraudulent  intent 
to  conceal  the  true  financial  condition  and  in  contemplation  of  bankruptcy' 
*  *  *  if  the  question  were  before  me  de  novo,  I  should  be  inclined  to  con- 
sider, as  no  'offense'  or  penal  element  exists  in  the  requirements  of  this  sub- 
division, that  the  principal  is  responsible,  as  respects  a  discharge  in  bankruptcy, 
for  the  fraudulent  conduct  of  the  agent  to  whom  the  whole  business  has  been 
entrusted,  as  in  civil  cases  generally,  where  the  fraud  has  been  committed  for 
the  principal's  benefit." 

Apparently  contra,  In  re  Hyman,  3  A.  B.  R.  169,  97  Fed.  195  (D.  C.  N.  Y.) : 
"She  cannot  be  deemed  *  *  *  to  have  been  guilty  of  fraud  in  keeping  her 
books  for  the  single  and  only  reason  that  her  husband  and  agent  was  guilty  in 
such  direction.  Negligence — at  least  negligence  of  the  degree  here  involved — 
is  not  the  equivalent  of  fraud,  within  the  meaning  of  the  statute." 

§  2486.  Whether  Act  Must  Be  Committed  in  Same  Capacity  in 
Which  Discharge  Sought,  to  Bar, — It  is  a  question  whether  the  act 
urged  as  ground  for  refusing  discharge  must  have  been  done  by  the  person 
seeking  discharge  in  the  same  capacity  in  which  he  is  seeking  discharge. 
On  principle  it  would  seem  that  it  must  have  been  done  in  the  same  ca- 
pacity.^s 

SUBDIVISION    "k!' 

Conceai.me;nt  of  Assets  as  Bar  to  Discharge. 

§  2487.  "Concealment  of  Assets,"  as  Bar  to  Discharge. — Taking 
up  the  original  grounds  of  opposition  to  discharge,  the  first  ground  reached 
is  "Concealment  of  Assets." 

If  a  bankrupt  knowingly  and  fraudulently,  whilst  a  bankrupt  or  after 
his  discharge,  conceals  from  his  trustee  any  of  the  property  belonging  to 
his  estate  in  bankruptcy,  his  discharge  will  be  refused.^''' 

§  2488.  "Knowingly  and  Fraudulently." — The  concealment  must 
have  been  done  "knowingly  and  fraudulently."*^^ 

That  is  to  say,  the  concealment  must  have  been  known  to  the  bankrupt 
and  have  been  of  such  nature  as  would  be  calculated  to  affect  creditor's 
rights  disadvantageously,  in  some  way. 

65.  In  re  Hardie  &  Co.,  16  A.  B.  R.  313,  143  Fed.  421  (D.  C.  Tex.).  Also, 
apparently  contra  instance,  holding  to  rule  of  preceding  paragraph,  In  re  Garri- 
son, 17  A.  B.  R.  833,  149  Fed.  178  (C.  C.  A.  N.  Y.). 

66.  But  compare,  inferentially.  In  re  Hamilton,  13  A.  B.  R.  333,  133  Fed.  833 
(D.  C.  N.  Y.),  where  a  partner's  individual  discharge  was  being  opposed  for  acts 
done  as  partner. 

67.  Bankr.  Act,  §§  14  (b)  and  29  (b)  (l).  In  re  Leslie,  9  A.  B.  R.  561,  119 
Fed.  406  (D.  C.  N.  Y.).  See  instructive  charge  to  jury  in  U.  S.  v.  Levinson  & 
Kornblut,  13  A.  B.  R.  33  (D.  C.  S.  C). 

68.  Bankr.  Act,  §  29  (b)  (l).  In  re  Cohn,  1  A.  B.  R.  655  (Ref.  Mo.);  In  re 
Mudd,  5  A.  B.  R.  344,  105  Fed.  348  (D.  C.  Mo.);  In  re  Crenshaw,  3  A.  B.  R.  623, 
95  Fed.  632  (D.  C.  Ala.);  In  re  Freund,  3  A. -B.  R.  418,  98  Fed.  81  (D.  C.  N.  Y.); 
In  re  Froeder,  17  A.  B.  R.  73,  150  Fed.  710  (C.  C.  A.  Mass.). 


1504  REMINGTON  ON  BANKRUPTCY.      *  §  2491 

§  2489.  Intent  to  Conceal,  Most  Important  Element. — Intent 
to  conceal  is  the  most  important  element  in  the  charge  of  concealment  of 
assets  f^  although  it  is  not  the  sole  element.'''^ 

§  2490.    Honest  Mistake,   Even  Mistake  of  Law,  Excuses.— An 

honest  mistake,  even  perhaps  a  mistake  of  law,  will  excuse."^ 

In  re  Morrow,  3  A.  B.  R.-  264,  97  Fed.  574  (D.  C.  Calif.):  "If  this  was  her 
honest  belief,  even  though  it  should  be  conceded  that  at  the  time  of  filing  her 
petition  in  bankruptcy  she  had  an  interest  in  other  property,  the  court  would  not 
be  warranted  in  finding  that  she  omitted  to  include  such  property  in  her  sched- 
ule of  assets  for  the  purpose  of  concealing  the  same  from  the  trustee  in  bank- 
ruptcy, or  with  the  intention  of  defrauding  her  creditors;  and  the  omission  to 
include  property  in  the  schedule  of  assets  filed  by  a  bankrupt,  when  such  omis- 
sion was  due  to  a  mistake  either  of  law  or  fact,  is  not  an  offense  under  sub- 
division 'b'  of  §  29  of  the  Bankruptcy  Act,  and  is  not  ground  for  withholding 
a  discharge." 

And  if  the  proof  shows  that  the  omission  of  property  from  the  schedules 
can  be  satisfactorily  explained  by  circumstances  consistent  with  honest  be- 
lief by  the  bankrupt  that  the  omitted  property  did  not  belong  to  him,  or 
that  it  was  absolutely  valueless,  or  that  it  had  been  practically  abandoned 
by  him,  then  the  omission  of  this  property  from  the  schedules  is  no  ground 
for  refusing  discharge.'^^ 

§  2491.  Advice  of  Counsel  May  Negative  Intent. — Advice  of  coun- 
sel, if  asked  for  and  acted  on  bona  tide,  is  valid  evidence  to  negative 
fraudulent  intent  and  knowledge  on  the  bankrupt's  part  in  omitting  assets 
from  the  schedules  or  otherwise  not  revealing  them."-"^ 

In  re  Berner,  4  A.  B.  R.  383  (Ref.  Ohio,  affirmed  by  D.  C.) :  "Advice  of 
counsel  is  admissible  in  evidence  as  tending  to  rebut  an  inference  of  fraudulent 
intent,  but  only  when  some  substantial  question  of  law  is  involveff;  and  its 
efifect  may  itself  be  neutralized  by  facts  tending  to  show  the  existence  of  a  fraud- 
ulent intent  notwithstanding." 

69.  In  re  Schreck,  1  A.  B.  R.  366  (Ref.  N.  Y.) ;  In  re  Crenshaw,  2  A.  B.  R. 
623,  95  Fed.  632  (D.  C.  Ala.);  impliedly,  In  re  Freund,  3  A.  B.  R.  418,  98  Fed. 
81  (D.  C.  N.  Y.);  impliedly,  In  re  Schofield,  17  A.  B.  R.  918,  15  A.  B.  R.  824 
(D.  C.  Pa.). 

70.  Vehon  v.  Ullman,  17  A.  B.  R.  437  (C.  C.  A.  Ills.). 

71.  Obiter  and  inferentially,  In  re  Wood,  3  A.  B.  R.  572,  98  Fed.  972  (D.  C. 
N.  Y.);  instance.  In  re  Schofield,  17  A.  B.  R.  918,  15  A.  B.  R.  824  (D.  C.  Pa.); 
[1867]   In  re  Parker,  Fed.  Cases  No.  10,720. 

72.  In  re  Hirsch,  2  A.  B.  R.  715,  96  Fed.  468  (D.  C.  Tenn.). 

73.  Compare  similar  proposition  relative  to  "False  Oath  as  Bar  to  Dis- 
charge," subdivision  "B,"  §  2523,  and  cases  there  cited.  Compare,  also,  advice 
of  counsel  as  palliation  of  contempt,  ante,  §  2333.  In  re  Schreck,  1  A.  B. 
R.  366  (Ref.  N.  Y.);  obiter,  McNiel  v.  U.  S.,  18  A.  B.  R.  21,  150  Fed.  82  (C.  C. 
A.  Tex.);  In  re  Bryant,  5  A.  B.  R.  114,  104  Fed.  789  (Ref.  Tenn.);  inferentially, 
Woods  V.  Little,  13  A.  B.  R.  742,  134  Fed.  229  (C.  C.  A.  Pa.);  instance.  In  re 
Hansen,  5  A.  B.  R.  747,  107  Fed.  252  (D.  C.  Ore.);  instance,  In  re  Schofield,  17 
A.  B.  R.  918,  15  A.  B.  R.  824  (D.  C.  Pa.). 

Requisites,  in  General,  of  Advice  of  Counsel  as  Defense. — Compare  as  to 
requisites  for  validity  of  defense  of  advice  of  counsel,  in  general,  In  re  Watts, 
10  A.  B.  R.  128,  190  U.  S.  1.  Compare,  U.  S.  v.  Goldstein,  12  A.  B  R  755,  132 
Fed.  789  (D.  C.  Va.). 


§  2496  OPPOSITION  TO  discharge;.  1505 

§  2492.  But  Insufficient,  Where  Legal  Questions  Are  Matters  of 
Common  Knowledge :  or  Facts  Not  Fully  Laid  before  Counsel,  or 
Unwarranted  Inferences  Drawn  from  Advice. — But  advice  of  coun- 
sel will  not  excuse  an  omission  of  assets  from  the  schedules  where  there 
were  no  substantial  legal  questions  involved,  and  the  actual  legal  relation 
of  the  property  to  the  bankrupt's  estate  was  matter  of  common  knowledge 
and  plain  to  everybody.'^^  Nor  will  it  excuse  where  the  facts  were  not 
fully  laid  before  counsel  Y-"  nor  where  the  advice  given  did  not  warrant 
the  acts  complained  of.'^^ 

§  2493.  Because  Property  Claimable  as  Exempt,  Fraudulent  In- 
tent Not  Necessarily  Negatived. — Fraudulent  intent  is  not  necessa- 
rily negatived  by  the  fact  that  the  property  involved  might  have  been 
claimed  as  exempt  anyway.'^ 

§  2494.  But  Such  Fact  of  Weight  as  Evidence.— But  such  fact  is 
entitled  to  weight  in  determining  intent."^'* 

§  2495.  Willful  Undervaluing  of  Scheduled  Assets  Whether  Con- 
cealment.— ]\Iere  undervaluing  of  scheduled  assets  is  not,  per  se,  a  con- 
cealment, but  it  is  evidence  to  be  taken  into  account  in  arriving  at  the 
ititent. 

Analogously,  (false  oath)  In  re  Semmel,  9  A.  B.  R.  351,  118  Fed.  487  (D.  C. 
Pa.) :  "A  willful  undervaluation  covered  up  in  the  way  this  is,  I  cannot  but  regard 
as  a  false  representation  by  the  bankrupt  with  regard  to  his  property,  and  being 
sworn  to  bj-  him  in  verifying  his  schedules,  it  amounts  to  a  false  oath  which 
bars  a  discharge." 

§  2496.  Preference  Not  Amounting  to  Fraudulent  Concealment, 

No   Bar. — A   preferenc^  not  amounting  to   a   fraudulent   concealment   is 
not  ground  for  refusing:  oischarge."^'  j 


74.  In  re  Berner,  4  A.  B.  R.  383  (R8fc  Ohio,  afifirmed  by  D.  C.) ;  inferentially, 
In  re  Schreck,  1  A.  B.  R.  366  (Ref.  N.  Y.). 

Instance  of  refusal,  notwithstanding  advice.  In  re  Stoddard,  7  A.  B.  R.  762, 
114  Fed.  486   (D.  C.  Wash.). 

Instance  of  refusal,  notwithstanding  advice,  In  re  Breitling,  13  A.  B.  R.  126. 
133  Fed.  146  (C.  C.  A.  Ills.). 

75.  In  re  Berner,  4  A.  B.  R,  383  (Ref.  Ohio,  afiBrmed  by  D.  C);  In  re  Breit- 
ling, 13  A.  B.  R.  126,  133  Fed.  \46  (C.  C.  A.  Ills.). 

76.  McNiel  v.  U.  S.,  18  A.  B.  R.  21,  150  Fed.  82  (C.  C.  A.  Tex.). 

77.  Inferentially,  In  re  Breit^ng,  13  A.  B.  R.  126,  133  Fed.  146  (C.  C.  A.  Ills.); 
In  re  Royal,  7  A.  B.  R.  106,  ll2  Fed.  135  (D.  C.  N.  Car.).  Compare,  to  same 
effect.  In  re  Conroy,  14  A.  B.  R.  250,  134  Fed.  764  (D.  C.  Penn.).  Compare,  to 
same  eflFect,  post,  §  2539.  under  subject  of  "False  Oath."     Also,  see  §  2547. 

78.  In  re  Todd,  7  A.  B.  R.  770,  112  Fed.  315  (D.  C.  Vt.).  Compare  analogous 
proposition  under  "False  Oath,"  post,  §  2539. 

79.  In  re  Maher,  16  A.  B.  R.  340,  144  Fed.  505  (D.  C.  Mass.,  affirming  15  A.  B. 
R.  787);  In  re  Pierce,  4  A.  B.  R.  554,  103  Fed.  64  (D.  C.  N.  Y.).     Ante,  §  2469. 

2  Rem  B— 20 


1506  REMINGTON  ON  BANKRUPTCY.  §  2500 

§  2497.  Concealment  Must  Be  "While  a  Bankrupt"  or  after  Dis- 
charge.— The  concealment,  in  order  to  effect  a  bar  of  the  discharge,  must 
have  been  perpetrated  while  the  debtor  was  a  bankrupt,  or  after  his  dis- 
charge.^* 

§  2498.  Continuing  Concealments. — But  there  may  be  a  continuing 
concealment,  after  one  has  become  a  bankrupt,  by  false  statements,  and 
even,  in  some  cases,  by  silence  or  omission  to  reveal  when  the  duty  exists 
to  reveal,  although  the  initial  fraud  or  secreting  occurred  before  bank- 
ruptcy.^ ^ 

U.  S.  V.  Cohn,  15  A.  B.  R.  359,  142  Fed.  983  (D.  C.  N.  Y.):  "This  provision 
(§  29  (b)  )  of  the  Bankrupt  Act  does  not  make  any  act  of  the  bankrupt  before 
the  bankruptcy  criminal.  But  if  a  bankrupt,  before  the  bankruptcy,  has  con- 
cealed his  property,  and,  after  his  trustee  is  appointed,  continues  to  conceal  it 
from  the  trustee,  he  is  criminally  liable  under  this  section,  and,  if  indicted  for 
such  crime,  evidence  of  his  acts  of  concealment  before  the  bankruptcy,  as  well 
as  those  subsequent  thereto,  would  undoubtedly  be  admissible  as  part  of  the 
res  gestae." 

In  re  Jacobs  &  Verstandig,  17  A.  B.  R.  470  (D.  C.  Ore.):  "The  word  'con- 
cealed' employed  in  this  connection  is  sufficiently  elastic  in  its  signification 
to  comprise  'continuing  concealments.'  Thus,  if  a  bankrupt  has  disposed  of 
property  belonging  to  him,  prior  to  the  adjudication,  and  has  the  proceeds 
thereof  in  his  possession  or  within  his  authority  to  use  and  appropriate  subse- 
quently, there  is  a  continuing  concealment,  for  which  he  is  amenable  to  the  law, 
although  the  fact  of  concealment  by  intent  and  purpose  took  place  while  he 
was  not  a  bankrupt." 

§  2499.  Concealment  Must  Be  Concealment  from  Trustee. — The 

concealment  must  have  been  concealment  from  the  trustee.^^ 

§  2500.  Concealment  before  Appointment  of  Trustee,  Insufficient. 

— Concealment  before  the  appointment  of  a  trustee  is  ineffectual  to  bar 
discharge.^2 

80.  Bankr.  Act,  §  29  (b)  (1).  In  re  Webb,  3  A.  B.  R.  386,  96  Fed.  404  (D.  C. 
N.  Y.,  affirming  3  A.  B.  R.  204) ;  In  re  Quakenbush,  4  A.  B.  R.  295,  102  Fed.  282 
(D.  C.  N.  Y.). 

Impliedly,  In  re  Blalock,  9  A.  B.  R.  266,  118  Fed.  679  (D.  C.  S.  C.) :  In  this 
case  a  false  oath  made  in  a  bankruptcy  proceeding  brought  against  another 
person  was  sought  to  be  used  as  a  bar  to  discharge. 

In  re  Mudd,  5  A.  B.  R.  244,  105  Fed.  348  (D.  C.  Mo.). 
.    When  Ceases  to  Be  a  "Bankrupt."— As  to  when  the  bankrupt   ceases   to  be 
"a  bankrupt,"  see  §§  453,  473. 

81.  See  post,  §  2511.     Compare,  ante,  as  to  acts  of  bankruptcy,  §  183. 

82.  Bankr.  Act,  §  29  (b)  (1).  In  re  Quackenbush,  4  A.  B.  R  295,  102  Fed 
282  (D.  C.  N.  Y.);  In  re  Mudd,  5  A.  B.  R.  244,  105  Fed.  348  (D.  C.  Mo.). 

83.  Inferentially,  contra,  if  after  adjudication,  U.  S.  v  Goldstein  12  A  B  R 
755,  132  Fed.  789  (D.  C.  Va.).  Compare,  U.  S.  v.  Levinson  &  Ko'rnblut,'  13  a! 
B.  R.  32  (D.  C.  S.  C);  compare,  U.  S.  v.  Cohn,  15  A.  B.  R.  337,  142  Fed  983* 
(D.  C.  N.  Y.). 


^    2503  OPPOSITION   TO  DISCHARGE.  1507 

And,  if  no  trustee  be  appointed  at  all,  this  ground  of  opposition  will 
not  lie.^^ 

In  re  Toothaker  Bros.,  12  A.  B.  R.  100,  128  Fed.  187   (D.  C.  Conn.):    "There 
•appearing  to  be  no  assets  a  trustee  was  not  appointed.     *     *     *     By  omitting 
to  place  it  in  the  schedules,  he  was  enabled  to  escape  a  trustee  from  whom  to 
conceal  it." 

§  2501.  Mere  Inability  to  Account  Reasonably  for  Assets  Not  Per 
Se  Proof,  Though  Strong  Evidence. — ]\Iere  inability  to  account  reason- 
ably for  assets  in  the  bankrupt's  possession  shortly  before  bankruptcy  is 
not  per  se  proof  of  concealment. '^'^  But  it  is  strong  evidence  to  prove  con- 
cealment;^*^ and  throws  the  burden  of  proof  on  the  bankrupt.^" 

§  2502.  Concealment  by  Purposely  Omitting  Assets  from  Sched- 
ules.— Concealment  may  be  perpetrated,  amongst  other  ways,  by  pur- 
posely omitting  assets  from  the  schedules  in  bankruptcy.^^ 

In  re  Skinner,  3  A.  B.  R.  163,  97  Fed.  190  (D.  C.  Iowa):  "It  having,  there- 
fore been  conclusively  determined  in  a  suit  between  the  bankrupt  and  his  cred- 
itors, represented  by  the  trustee,  that  the  bankrupt  had  conveyed  to  his  wife, 
without  consideration,  and  with  intent  to  defraud  his  creditors,  property  to  a 
large  amount,  and  it  appearing  from  the  record  in  this  case  that  when  the  bank- 
rupt filed  his  petition  and  schedules  he  stated  that  he  had  no  property  of  any 
kind,  except  a  possible  equity  of  redemption  in  1,440  head  of  sheep  mortgaged  to 
a  named  creditor,  the  court  is  justified  in  finding  that  the  bankrupt  has  know- 
ingly and  fraudulently  concealed  from  his  trustee  property  to  a  large  amount, 
which  in  fact  forms  part  of  his  estate,  and  therefore  under  the  provisions  of 
§§  14  and  29  of  the  Bankrupt  Act  the  petitioner  is  not  entitled  to  his  dis- 
charge." 

§  2503.  And  Amendment  after  Discovery  Will  Not  Cure. — xA.nd  the 
amendment  of  the  schedules  after  the  creditors'  discovery  of  the  conceal- 
ment will  not  cure  the  act.^^ 


84.  But  compare,  as  to  title  to  concealed  assets  under  such  circumstances. 
Rand  V.  Iowa  Central  Ry.  Co.,  12  A.  B.  R.  164  (Sup.  Ct.  N.  Y.  App.  Div.).  And 
compare  as  to  title  of  concealed  assets  after  estate  closed,  Fowler  v.  Jenks,  11 

A.  B.  R.  255  (Sup.  Ct.  :\Iinn.). 

85.  In  re  Idzall,  2  A.  B.  R.  741,  96  Fed.  314   (D.  C.  Iowa);   In  re  Leslie,  9  A. 

B.  R.  561,  119  Fed.  406  (D.  C.  N.  Y.). 

86.  See  cases  on  the  proposition  of  summary  orders  on  bankrupts,  ante,  § 
1842,  et  seq. 

87.  In  re  Finkelstein,  3  A.  B.  R.  800,  101  Fed.  418  (D.  C.  N.  Y.);  In  re  Leslie, 
9  A.  B.  R.  561,  119  Fed.  406  (D.  C.  N.  Y.). 

88.  In  re  Lowenstein,  2  A.  B.  R.  193,  106  Fed.  51  (Ref.  N.  Y.) ;  In  re  Berner, 
4  A.  B.  R.  983  (Ref.  Ohio,  affirmed  by  D.  C);  obiter.  In  re  Toothaker  Bros.,  12 
A.  B.  R.  99,  128  Fed.  187  (D.  C.  Conn.);  instance,  Osborne  v.  Perkins,  7  A.  B. 
R.  250,  112  Fed.  127  (C.  C.  A.  Mass.);  instance,  In  re  Breitling,  13  A.  B.  R.  126, 
133  Fed.  146  (C.  C.  A.  Ills.);  instance,  Vehon  v.  Ulman,  17  A.  B.  R.  435  (C.  C. 
A.  Ills.). 

89.  In  re  Breiner,  11  A.  B.  R.  684,  129  Fed.  155  (D.  C.  Iowa). 


1508  kl;mixgtox  ox  bankruptcy.  §  2507 

§  2504.  But  Omission  to  Schedule,  Not  Per  Se  Concealment. — But 

the  mere  omission  from  the  schedules  is  not  per  se  a  conceahiient — the 
omission  must  be  intentional.  Thus,  the  mere  omission  of  even  fraud- 
ulently transferred  property  is  not  per  se  concealment  of  it.^*^ 

§  2505.  Concealment  of  Fraudulenty  Transferred  Property. — Con- 
cealment may  be  perpetrated  by  purposely  failing  to  schedule,  or  other- 
wise failing  to  disclose  when  called  upon,  fraudulently  transferred  prop- 
erty that  would  have  been  recoverable  by  the  trustee. ^^ 

[1867]  In  re  Antisdell,  18  N.  B.  Reg.  289  (D.  C.  N.  Y.) :  "The  second  subdi- 
vision of  §  5110  (Act  of  1867)  required  the  court  to  refuse  a  discharge,  'if  the 
bankrupt  has  concealed  any  part  of  his  estate  or  effects.'  This  specification  is 
satisfied  by  proof  that  the  bankrupt  has  concealed  his  title  to  real  estate,  by 
leaving  out  of  his  schedules  property  that  has  been  conveyed  by  him  in  fraud 
of  his   creditors." 

§  2506.  But  Property  Must  Be  Recoverable,  Else  Not  Conceal- 
ment of  Property  "Belonging  to  Estate." — But  it  is  only  where  the 
property  is  recoverable  by  the  trustee  that  a  fraudulent  transfer  made  before 
the  bankruptcy  could  form  the  basis  of  such  concealment  as  would  bar  dis- 
charge ;  for  the  concealment  must  be  concealment  of  property  belonging  to 
the  estate,  and  it  could  hardly  be  held  to  belong  to  the  estate  if  not  re- 
coverable at  the  time  of  the  bankruptcy.  And  since  the  concealment,  to 
be  a  bar,  must  be  concealment  from  the  trustee,  the  recoverability,  like- 
v/ise,  must  be  by  him.  On  the  other  hand,  demonstration  of  recoverability, 
by  actual  suit,  is  not  to  be  required. 

Of  course,  a  fraudulent  transfer  within  the  four  months  is  made  in  and 
of  itself  a  separate  bar  to  discharge  by  the  amendment  of  1903,  and  con- 
tinued recoverability  is  not  requisite  in  such  cases. 

§  2507.  Concealment,  Even  Where  Fraudulent  Transfer  Occurred 
More  than  Four  Months  before  Bankruptcy,  if  Property  Still  Re- 
coverable.— Concealment  may  be  so  perpetrated,  though  the  fraudulent 
transfer  occurred  more  than  four  months  before  the  bankruptcy,  provided 
the  property  or  its  proceeds  be  still  recoverable. ^^ 

Obiter,  In  re  Toothaker  Bros.,  12  A.  B.  R.  100,  128  Fed.  187  (D.  C.  Conn.): 
"The  counsel  for  ^Murray  is  forced  by  the  logic  of  the  situation  to  contend  that 
a   bankrupt   may   transfer   property    to   his   wife    without    consideration,    and   in 

90.  See  post,  §  2511.     Compare  instance  in  footnote  to  §  2522. 

91.  In  re  Welch,  3  A.  B.  R.  93,  100  Fed.  65  (D.  C.  Ohio);  In  re  Skinner,  3. 
A.  B.  R.  163,  97  Fed.  190  (D.  C  Iowa),  quoted  ante,  §  2502;  obiter.  In  re 
Toothaker,  12  A.  B.  R.  99,  128  Fed.  187  (D.  C.  Conn.);  [1867]  In  re  Hussman, 
2  B.  Reg.  437,  Fed.  Cases  6,951;  [1867]  In  re  Rathbone,  1  B.  Reg.  536,  2  B  Reg. 
260;  [1867]  In  re  Hill,  1  B.  Reg.  431;  [1867]  In  re  Goodridge,  2  B.  Reg.  324; 
contra.  In  re  Crenshaw,  2  A.  B.  R.  623,  95  Fed.  632  (D.  C.  Ala.);  impliedly  In  re 
Hirsch,  2  A.  B.  R.  715  (D.  C.  Tenn.). 

92.  Property  concealed  from  former  assignee  to  whom  title  to  all  property  of 
the    bankrupt   liad    previously    been    conveyed,    the    assignment   itself    not    being 


§    2508  .  OPPOSITION   TO  DISCHARGE.  ■  1509 

fraud  of  his  creditors,  and  with  the  latter  purpose  in  view,  at  any  date  which 
shall  be  more  than  four  months  prior  to  his  petition  in  bankruptcy,  and  with 
like  fraudulent  purpose  may  fail  to  mention  such  property  in  his  schedules, 
and  yet  demand  a  full  bill  of  financial  health  in  spite  of  the  protestations  of  his 
creditors." 

§  2508.  Or  Where  It  Occurred  Before  Passage  of  Act,  if  Still  Re- 
coverable.— Concealment  may  be  so  perperated,  though  the  fraudulent 
conveyance  occurred  before  the  passage  of  the  Bankruptcy  Act,  provided 
the  property  could  still  have  been  recovered  by  the  trustee. ^^ 

In  re  Quackenbush,  4  A.  B.  R.  274,  102  Fed.  282  (D.  C.  N.  Y.) :  "In  1891  the 
bankrupt  could  have  transferred  his  entire  property  to  a  single  creditor  to  the 
exclusion  of  all  the  rest,  and  the  transaction,  had  it  ended  there,  would  not  have 
affected  his  right  to  a  discharge  in  the  remotest  degree.  If,  however,  the  cred- 
itor holds  the  property  in  trust  for  the  bankrupt,  a  very  different  proposition 
is  presented. 

"The  difficulty  with  the  bankrupt's  contention  is  that  the  transaction  did  not 
end  in  1891.  By  virtue  of  transfers  made  prior  to  July  1,  1898,  the  bankrupt  is 
still   enjoying  property  which   equitably  belongs  to   his   creditors. 

"The  referee,  after  seeing  and  hearing  the  witnesses,  has  found  that  the  trans- 
fer of  the  personal  estate,  which  vested  absolutely  in  the  bankrupt  upon  the 
death  of  his  first  wife,  was  merely  a  juggle  by  which  the  legal  title  was  tem- 
porarily vested  in  another  to  prevent  the  property  from  being  reached  by  cred- 
itors.    In  short,  this  property  was  the  property  of  the  bankrupt." 

But  is  not  within  the  meaning  of  the  statute  where  the  property  could 

nullified  by  the  bankruptcy,  does  not  constitute  concealment  from  the  subse- 
quent trustee  in  bankruptcy.  In  re  Berner,  4  A.  B.  R.  383  (Ref.  Ohio,  affirmed 
by  D.  C);  obiter.  In  re  Lesser,  8  A.  B.  R.  15,  114  Fed.  83  (C.  C.  A.  N.  Y.,  dis- 
approving 5  A.  B.  R.  330).  But  this  would  hardly  be  the  case  had  creditors  in 
bankruptcy  had  the  right  to  pursue  such  assets.  The  only  right  of  the  creditors 
in  bankruptcy  was  to  insist  on  the  assets  being  turned  over  to  the  former  as- 
signee, unless  facts  showed  an  abandonment  by  him. 

93.  Obiter,  In  re  Gaylord,  7  A.  B.  R.  1,  112  Fed.  668  (C.  C.  A.  N.  Y.,  affirming 
5  A.  B.  R.  410,  and  distinguished  in  In  re  Conroy,  14  A.  B.  R.  250,  134  Fed.  764 
(D.  C.  Pa.);  In  re  Berner,  4  A.  B.  R-  383  (Ref.  Ohio,  affirmed  by  D.  C). 

Contra,  compare  case  cited  in  opinion  in  Paxton  v.  Scott,  10  A.  B.  R.  80,  92 
N.  W.  611  (Neb.). 

Obiter,  In  re  Dauchy,  11  A.  B.  R.  511,  130  Fed.  532  (C.  C.  A.  N.  Y.,  affirming 
10  A.  B.  R.  527,  122  Fed.  688).  But_  in  this  case, it  was  distinctly  held  that  no 
secret  trust  was  shown  to  be  still  existing. 

Impliedly,  U.  S.  v.  Cohn,  15  A.  B.  R.  357.  142  Fed.  983  (D.  C.  N.  Y.).  [1867] 
Compare,  under  law  of  1867,  In  re  Murdock,  Fed.  Cases  1,010;  [1867]  In  re 
Hussman,  2  N.  B.  Reg.  437;  [1867]  In  re  Keefer,  4  N.  B.  Reg.  126,  Fed.  Cas. 
7,636;  [l'867]  In  re  Hollenshade,  Fed.  Cases  6,610;  [1867]  In  re  Rosenfeld,  Fed. 
Cases  12,058;  [1867]  In  re  Jones,  Fed.  Cases  932;  [1867]  In  re  Moore,  Fed.  Cases 
663,  No.  9,751;  [1867]  In  re  Lord,  Fed.  Cas.  872;  [1867]  but  contra,  In  re 
Cretiew,  Fed.  Cas.  810;  impliedly,  Hudson  v.  Mercantile  Nat'l  Bank,  9  A.  B.  R. 
432,  119  Fed.  346  (C.  C.  A.  Colo.);  compare,  analogously.  In  re  Herman,  13  A. 
B.  R.  778,  134  Fed.  566  (C.  C.  A.  N.  Y.). 

The  case  In  re  Webb,  3  A.  B.  R.  386,  is  not  contra  for  two  reasons,  namely, 
first,  that  the  conveyance  therein  complained  of  was  merely  preferential  under 
the  bankruptcy  act  and  not  preferential  under  the  State  law  and  therefore  was 
not  illegal  when  made;  and  second,  that  fhe  property  involved  could  not  have 
been  recovered  by  the  trustee. 


1510  REMINGTON  ON  BANKRUPTCY.  §  2510 

not  be  considered  as  "his"  property,  as  would  be  the  case  where  no  secret 
trust  were  shown  to  exist  in  favor  of  the  bankrupt.^^ 

In  re  Countryman,  9  A.  B.  R.  572,  119  Fed.  637  (D.  C.  Iowa):  "Under  these 
circumstances,  in  order  to  defeat  the  discharge,  it  must  be  clearly  shown  that 
when  the  petition  in  bankruptcy  was  filed,  the  bankrupt  really  owned  the  land 
or  an  interest  therein,  and  this  the  evidence  fails  to  show.  The  conveyance  to 
the  husband,  even  if  it  was  not  based  upon  a  money  or  other  valuable  consid- 
eration, would  be  good  between  the  parties,  and  would  bar  a  claim  thereto  by 
the  wife  [the  bankrupt  in  the  case],  unless  it  was  shown  that  when  the  trans- 
fer was  made  she  retained  an  actual  interest  therein." 

Or  where  the  conveyance  was  made  twenty-five  or  thirty  years  before, 
no  fraud  being  shown. ^^ 

But  where,  for  many  years,  a  debtor  after  a  faihire  did  business  osten- 
sibly as  manager  for  a  firm  composed  of  his  wife  and  brother,  but  re- 
ceived no  fixed  salary  and  drew  whatever  money  he  needed,  his  wife 
knowing  little  about  the  business,  although  it  is  alleged  she  had  contrib- 
uted $10,000  thereto  at  the  beginning,  he  and  his  family  living  in  expen- 
sive style,  it  was  held  a  failure  to  schedule  an  interest  in  the  business  was 
a  concealment  of  assets. ^^ 

§  2509.  Even  Where  No  Debts  Existed  and  Transfer  Fraudulent 
Only  because  in  Contemplation  of  Future  Creditor. — Concealment 
may  be  perpetrated  even  though  no  present  debts  were  then  in  existence, 
if  the  voluntary  transfer  were  made  in  contemplation  of  contracting  sub- 
sequent indebtedness  or  of  engaging  in  a  hazardous  undertaking;'^'  but 
not,  if  it  were  not  made  in  contemplation  of  subsequent  indebtedness.^^ 

§  2510.  Concealment  of  Property  Held  on  "Secret"  or  Resulting 
Trust,  Title  Never  Having  Been  in  Bankrupt. — Concealment  may  be 
perpetrated  even  by  purposely  failing  to  schedule  property  held  on  secret 
cr  resulting  trust  for  the  debtor's  benefit,  where  the  legal  title  to  it  has 
never  been  in  the  bankrupt. ^^ 

Hudson  V.  Mercantile  Xat'l  Bk.,  9  A.  B.  R.  4.36,  119  Fed.  346  (C.  C.  A.  Colo.): 
"We  are  of  the  opinion,  therefore,  in  view  of  what  has  been  said,  that  it  was 
the  bankrupt's  duty,  when  he  filed  his  schedules  in  bankruptcy,  to  have  included 
the  two  quarter  sections  of  land  standing  in  the  name  of  his  son  Walter  Hudson 

94.  In  re  House,  4  R.  B.  R.  603,  103  Fed.  616  (D.  C.  N.  Y.);  In  re  Berner,  -4 
A.  B.  R.  383  (Ref.  Ohio,  affirmed  by  D.  C.) ;  In  re  Quackenbush,  4  A.  B.  R.  274, 
102  Fed.  282  (D.  C.  N.  Y.) ;  In  re  Fitchard,  4  A.  B.  R.  609,  103  Fed.  742  (D.  C. 
N.  Y.);  In  re  Dauchy,  10  A.  B.  R.  527,  122  Fed.  688  (D.  C.  N.  Y.). 

95.  In  re  Goodale,  6  A.  B.  R.  493,  109  Fed.  783  (D.  C.  N.  Y.).     • 

96.  In  re  Herman,  13  A.  B.  R.  778,  134  Fed.  566  (C.  C.  A.  N.  Y.). 

97.  In  re  McNamara,  2  A.  B.  R.  579  (Special  Master  N.  Y.,  citing  Case  v. 
Phelps,  5  N.  B.  Reg.  452). 

98.  Impliedly,  Fields  v.  Karter,  8  A.  B.  R.  351,  115  Fed.  950  (C.  C.  A.  Ala.).    ' 

99.  In  re  Lowenstein,  2  A.  B.  R.  193  (Ref.  N.  Y.,  since  appointed  district 
judge);  In  re  Quackenbush,  4  A.  B.  R.  274,  102  Fed.  282  (D.  C.  N.  Y.):  In  re 
Berner,  4  A.  B.  R.  383  (Ref.  Ohio,  affirmed  by  D.  C). 


§    2511  OPPOSITION  To  DISCHARGE.  1511 

as  a  part  of  his  property;  and  the  fact  that  he  did  not  do  so,  taken  in  connection 
with  the  fact  that  the  record  title  stood  in  the  name  of  his  son,  amounts,  we 
think,  to  a  willful  and  fraudulent  concealment  of  property  from  his  trustee 
within  the  purview  of  §  29  of  the  Bankrupt  Act;  and  the  act  in  question  being 
an  offense  under  the  latter  section,  it  constitutes  sufficient  ground  for  refusing 
a  discharge,  under  subdivision  b  of  §  14  of  the  Bankrupt  Act.  It  has  been  held 
on  several  occasions  by  courts  of  bankruptcy  that  where  a  person,  prior  to 
filing  a  petition  in  bankruptcy,  conveys  the  whole  or  a  part  of  his  property  to 
a  third  party  to  be  held  in  secret  trust  for  himself,  and  fails  to  schedule  it  as 
a  part  of  his  assets,  such  an  act  amounts  to  a  fraudulent  concealment  of  assets 
which  will  defeat  his  right  to  a"  discharge.  In  re  Welch  (D.  C),  3  Am.  B.  R. 
93,  100  Fed.  65;  In  re  Bemis  (D.  C),  5  Am.  B.  R.  438;  In  re  Becker  (D.  C), 
106  Fed.  54.  In  the  case  at  bar,  as  already  shown,  the  bankrupt  either  has  a 
resulting  trust  in  the  two  tracts  of  land  in  question,  which  arose  without  fraud, 
or  Walter  Hudson  holds  the  land  in  secret  trust  for  the  benefit  of  the  bankrupt^ 
the  trust  having  been  created  to  defraud  creditors;  and  in  either  event,  as  it 
seems,  the  land  ought  to  have  been  scheduled  by  the  bankrupt  as  a  part  of  his. 
estate,  and  his  failure  to  do  so  amounts  to  a  concealment  of  assets." 

§  2511.  "Secret  Trust"  in  Bankrupt's  Favor  Generally  Requisite 
to  Show  Continuing-  and  Intentional  Concealment  of  Fraudulent 
Transfers. — Generally,  in  order  to  prove  that  the  concealment  still  con- 
tinues and  is  being  knowingly  and  fraudulently  perpetrated,  and  some- 
times also  in  order  to  prove  that  the  property  is  recoverable  for  the  ben- 
efit of  the  estate  and  therefore  "belongs"  to  the  estate,  it  is  necessary  to 
show  that  a  secret  trust  exists  in  the  bankrupt's  favor. 

The  omission  of  fraudulently  transferred  property  must  have  been  done 
purposely  to  constitute  concealment ;  for,  as  previously  noted  in  §  2504, 
the  mere  omission  to  schedule  property  is  not  per  se  or  ipso  facto  the  con- 
cealment of  it.^°*^ 

In  re  Cornell,  3  A.  B.  R.  172,  97  Fed.  29  (D.  C.  N.  Y.) :  "To  have  this  effect 
there  must  be  evidence  of  concealment  of  property  from  the  trustee.  This  can, 
only  be  made  out  by  evidence  of  some  remaining  property  in  trust  for  the  bank- 
rupt's use  existing  at  the  time  of  the  petition  in  bankruptcy." 

And  declaring  "No  assets"  but  listing,  in  the  schedule  of  exempted  prop- 
erty, Schedule  B   (5),  certain  property  claimed  as  exempt  does  not  con- 

100.  See  ante,  §  2504.  Hudson  Mercantile  National  Bank,  9  A.  B.  R.  436,  118 
Fed.  346  (C.  C.  A.  Colo.);  In  re  Freund,  3  A.  B.  R.  418  (D.  C.  N.  Y.) ;  In  re 
Hirsch,  2  A.  B.  R.  715  (D.  C.  Tenn.) ;  inferentially.  In  re  Steindler  &  Hahn,  5 
A.  B.  R.  63  (D.  C.  N.  Y.);  In  re  Jacobs  &  Verstanding,  17  A.  B.  R.  475  (D.  C. 
Ore.):  In  re  Morrow,  3  A.  B.  R.  263  (D.  C.  Calif.);  In  re  Semmel,  9  A.  B.  R. 
352  (D.  C.  Pa.);  U.  S.  v.  Levinson  &  Kornblut,  13  A.  B.  R.  32  (D.  C.  S.  C.) ; 
In  re  Schreck,  1  A.  B.  R.  366  (Special  Master  N.  Y.) ;  In  re  Berner,  4  A.  B.  R. 
383  (Ref.  Ohio,  affirmed  by  D.  C.) ;  In  re  Lowenstein,  2  A.  B.  R.  193  (Ref.  X. 
Y.);  In  re  Crenshaw,  2  A.  B.  R.  623  (D.  C.  Ala.);  In  re  Pierce,  4  A.  B.  R.  554 
(D.  C.  N.  Y.);  In  re  Fitchard,  4  A.  B.  R.  609  (D.  C.  N.  Y.) ;  Fellows  v.  Freuden- 
thal,  4  A.  B.  R.  490  (C.  C.  A.  Ills.);  In  re  House,  4  A.  B.  R.  603  (D.  C.  N.  Y.^; 
In  re  Quackenbush,  4  A.  B.  R.  274  (D.  C.  N.  Y.). 

Compare,  In  re  Gammon,  6  A.  B.  R.  482  (D.  C.  Iowa),  where  a  husband  had 
turned  over  all  his  property  to  his  wife  and  pretended  to  be  working  for  her 
for  nothing  and  failed  to  schedule  the  assets  as  his  own. 

Compare  interesting  historical  review  of  the  legislation.  In  re  Maher,  15  A.  B. 
R.  788  (Ref.  Mass.).     Impliedly,  In  re  McGurn,  4  A.  B.  R.  459  (D.  C.  Nev.). 


1512  REMINGTON  ON  BANKRUPTCY.  i^  2511 

stitute  a  concealment,  the  property  being  actually  listed  although  properly 
it  should  be  listed  also  as  assets  in  somie  other  part  of  Schedule  "B." 

In  re  Countryman,  9.  A.  B.  R.  572  (D.  C.  Iowa)  :  "The  bankrupt's  failure  to 
schedule  land  she  conveyed  to  her  husband  in  1895  is  no  reason  for  refusing  her 
discharge,  unless  it  is  clearly  shown  that  she  was  the  real  owner  of  the  land  or 
of  an  interest  therein  at  the  time  she  filed  her  petition  in  bankruptcy." 

And  continuing  concealment,  such  as  will  suffice  to  bring  within  the 
bar  of  discharge  as  a  concealment  a  transaction  originating  before  bank- 
ruptcy must  consist  of  something  more  than  the  merely  incidental  conceal- 
ment usually  accompanying  fraudulent  trans fers.^*^'^ 

But  such  omission,  when  the  property  is  still  held  on  secret  trust,  afifords 
strong  if  not  conclusive  proof  of  intentional  concealment. i''- 

In  re  Cornell,  .3  A.  B.  R.  172,  97  Fed.  29  (D.  C.  X.  Y.):  "To  have  this  effect 
there  must  be  evidence  of  concealment  of  property  from  the  trustee.  (Section 
29.)  This  can  only  be  made  out  by  evidence  of  some  remaining  property  in 
trust  for  the  bankrupt's  use  existing  at  the  time  of  the  petition  in  Bankruptcy." 

In  re  Berner,  4  A.  B.  R.  383  (Ref.  Ohio,  affirmed  by  D.  C.) :  "A  fraudulent 
conveyance  by  the  bankrupt  is  not  in  itself  a  bar  to  the  bankrupt's  discharge. 

"But  the  intentional  and  fraudulent  omission  to  schedule  property  previously 
conveyed  by  the  bankrupt  in  fraud  of  creditors,  whether  it  was  conveyed  prior 
or  subsequently  to  the  passage  of  the  Bankruptcy  Act,  will  be  a  bar  to  his  dis- 
charge, where  the  property  is  being  held  upon  secret  trust  for  his  benefit;  and 
this  is  so  for  three  reasons:  (a)  Concealment  of  the  assets  is  a  continuous  act, 
and  is  perpetrated  whenever  the  duty  to  reveal  them  exists  and  is  knowingly 
disregarded,  fb)  Concealment  of  assets  may  be  effected  as  well  by  the  conceal- 
ment of  the  title  to  the  property  as  by  the  actual  hiding  of  the  property  itself, 
(c)  It  is  not  necessary  that  the  bankrupt  be  able  himself  to  recover  his  prop- 
erty by  suit;  it  is  sufficient  if  his  creditors,  or  rather,  his  trustee  in  bankruptcy, 
have  standing  in  court  for  this  purpose. 

"But  it  is  necessary  in  order  that  omission  to  schedule  the  property  shall  bar 
the  discharge,  that  a  secret  trust  in  it  be  shown  to  be  existing  in  favor  of  the  bank- 

101.  Bank  r.  DePauw  Co.,  5  A.  B.  R.  845  (C.  C.  A.  Ind.);  inferentially,  In  re 
House,  4  A.  B.  R.  603  (D.  C.  N.  Y.);  In  re  Quackenbush,  4  A.  B.  R.  274  (D.  C. 

102.  Also,  U.  S.  Levinson  &  Kornblut.  13  A.  B.  R  32  (D  C  S  C)-  In  re 
Bemis.  5  A.  B.  R.  36.  104  Fed.  672  (D.  C.  N.  Y.) ;  In  re  Schreck,  1  A  B  'r  36G 
("Special  Master  N.  Y.);  Steindler  &  Hahn,  5  A.  B.  R.  63  (Special  Master)-  In  re 
Quackenbush,  4  A.  B.  R.  273,  102  Fed.  282  (D.  C.  N.  Y.,  distinguished  in  In  re 
Fitchard.  4  A.  B.  R.  609);  In  re  Hoflfman.  4  A.  B.  R  331  102  Fed  979  (D  C 
N.  Y.);  In  re  Pierce,  4  A.  B.  R.  554  (D.  C.  N.  Y.) ;  In  re'  Fitchard',  4  A  b'  r' 
609,  103  Fed.  743  (D.  C.  N.  Y.) ;  Fellows  v.  Freudenthal,  4  A.  B.  R.  490,  102  Fed' 
731  (C.  C.  A.  Ills.);  mferentially.  In  re  Kolster,  17  A.  B    R    54  (D    C    Nev) 

In  re  Warne,  10  Fed.  377,  Id.,  12  Fed.  431,  in  which  it  was  held  that  the 
verification  of  schedules  from  which  certain  claims  have  been  omitted  ap- 
parently inadvertently  and  from  oversight  and  without  motive,  is  not  the  taking 
of  a  false  oath.  In  contemplation  of  law  an  oath  if  not  falsely  taken  unless  will- 
fully made. 

In  re  Jacobs,  16  A.  B.  R.  484,  144  Fed.  868  (D.  C.  N  J.)-  In  re  Welch  3  \  B 
?n.^^f.^°n  ^r>^'^•^^^^l°•  ^^  ^^'"'^  =  impliedly.  In  re  Smith,  3' A.  B.  R.  95,  100  Ved.' 
<95  (U.  L.  (ja.).  Compare,  In  re  Gammon,  6  A.  B.  R  48'  109  Fed  312  (D  C 
Iowa),  where  bankrupt  turned  over  all  his  property  to  his' wife  and  claimed  to 
be  working  for  her  for  nothing. 


^    2512  OPPOSITION   TO  DISCHARGE.  1513 

Tupt,  no  place  being  provided  on  the  schedules  for  listing  fraudulently  conveyed 
property,  except  such  as  is  held  in  trust  for  him;  and  there  being  ambiguity 
in  the  statute  directing  what  he  shall  list,  and  also  in  the  prescribed  oath." 

In  re  Crist,  9  A.  B.  R.  1,  116  Fed.  1007  (D.  C.  Ala.):  "He  further  found  that 
it  did  not  appear  that  the  property  was  held  in  secret  trust  for  the  benefit  of  the 
bankrupt.  *  *  *  The  conveyance,  though  in  law  fraudulent  and  void,  is  not  a 
concealment  of  the  property  conveyed,  in  contemplation  of  §  29  (b),  Bank- 
rupt Act." 

In  re  House,  4  A.  B.  R.  603,  103  Fed.  616  (D.  C.  N.  Y.) :  "What  assets  should 
the  bankrupt  have  placed  in  his  schedules?  A  claim  against  his  wife?  He 
could  not  have  recovered  the  money,  whether  his  gift  was  made  in  fraud  of 
his  creditors  or  otherwise.  The  cause  of  action  for  such  recovery  was  in  the 
creditor,  and  the  gift  could  be  avoided  only  at  the  instance  of  the  creditor.  As 
to  all  other  persons,  including  the  donor,  the  gift  was  valid." 

In  re  Crenshaw,  2  A.  B.  R.  623,  95  Fed.  632  (D.  C.  Ala.):  "In  the  absence 
of  proof  of  intentional  wrong  in  making  the  oath,  the  bankrupt  failing  to  sched- 
Tile  and  deliver  up  the  property  for  the  benefit  of  his  creditors  will  not  bar  his 
discharge  even  though  the  transfer  to  his  wife  may  have  amounted  to  con- 
structive fraud  and  have  been  void  as  against  creditors." 

In  re  Dauchy,  10  A.  B.  R.  527,  122  Fed.  688  (D.  C.  N.  Y.) :  "In  such  case  the 
transfer  would  be  not  only  in  fraud  of  creditors,  but  for  the  purpose  of  con- 
cealing the  property  from  her  trustee  in  bankruptcy  when  appointed  and  her 
failure  to  schedule  the  property  and  disclose  the  facts  might  properly  be  held 
a  concealment  from  her  trustee  while  a  bankrupt,  within  the  true  meaning  of 
the    law." 

In  re  Dauchy,  11  A.  B.  R.  511,  130  Fed.  532  (C.  C.  A.  N.  Y.,  aflirming  10  A. 
B.  R.  527,  122  Fed.  688):  "In  order  to  establish  a  fraudulent  concealment  it 
must  appear  that  the  property  concealed  belongs  to  the  bankrupt's  estate.  It 
must  be  shown  that  the  transfer  was  merely  a  temporary  expedient  to  place  the 
property  beyond  the  reach  of  the  trustee,  the  title  to  be  resumed  by  the  bank- 
rupt as  soon  as  prudence  will  permit.  In  other  words,  it  must  be  proved  that 
a  secret  trust  exists  in  her  favor,  and  that  her  son  is  under  agreement,  expressed 
or  implied,  to  reconvey  the  property  to  her  when  the  danger  of  attack  by  the 
creditors  has  passed." 

In  re  Countrymen,  9  A.  B.  R.  572,  119  Fed.  637  (D.  C.  lawa):  !'Under  these 
circumstances,  in  order  to  defeat  the  discharge,  it  must  be  clearly  shown  that, 
when  the  petition  in  bankruptcy  was  filed  the  bankrupt  really  owned  the  land 
or  an  interest  therein,  and  this  the  evidence  fails  to  show." 

But  the  precise  terms   of  any  such   secret  understanding  need   not  be 

proved. ^*^2 

Conceahnent  imphes  present  possession  or  control. ^"^^ 

And  the  exercise  of  dominion  over  property  is  the  highest  indicium  of 

actual  ownership. 1^^ 

§  2512.  And  "Secret  Trust"  Not  Requisite  Where  "Fraudulent 
Conveyance  w^ithin  Four  Months,"  Ground  Charged. — A  secret  trust 

103.  U.  S.  V.  Levinson  &  Kornblut,  13  A.  B.  R.  32  (D.  C.  S.  C). 

104.  In  re  Idzall,  2  A.  B.  R.  741,  96  Fed.  314  (D.  C.  Iowa);  In  re  Berner,  4 

A.  B.  R.  383   (Ref.   Ohio,  affirmed  by  D.   C.) ;  inferentially.   In  re  Dauchy,  10  A. 

B.  R.  527  (D.  C.  N.  Y.,  and  11  A.  B.  R.  512,  122  Fed.  691,  C.  C.  A.  N.  Y.). 

105.  In  re  Semmel  9  A.  B.  R.  356,  118  Fed.  487  (D.  C.  Pa.);  [1867]  In  re 
Hussman,  Fed.  Cas.  No.  6,951. 


1514  REMINGTON  ON  BANKRUPTCY.  §  2515 

need  not  be  shown  where  the  ground  charged  is  a  fraudulent  conveyance 
Vv'ithin  the  four  months  preceding  bankruptcy,  under  the  amendment  of 
1903 ;  for  the  fraudulent  conveyance  is  itself,  as  a  conveyance,  a  bar  and 
not  because  of  its  "concealment."^'^^ 

Compare,  obiter,  In  re  Brumbaugh.  12  A.  B.  R.  "204,  128  Fed.  97  (D.  C.  Penn.) : 
"Moreover,  if  there  was  really  any  fraud  in  the  transaction  it  took  place  more 
than  four  months  prior  to  the  proceedings  in  bankruptcy,  and  it  is  only  where 
there  has  been  a  fraudulent  transfer  of  property  within  the  period  that  a  dis- 
charge is  barred."  This  obiter  in  In  re  Brumbaugh  evidently  was  based  on  the 
same  principles  enunciated  in  the  old  law  of  1867  in  the  case  In  re  Pierson, 
Fed.   Case  11,153  and   In  re   Locke,   Fed.   Cases   8,439. 

§  2513.  But  "Concealment"  and  "Fraudulent  and  Knowing  In- 
lent"  Provable  Otherwise  than  by  Continuing  Secret  Trust. — But 

it  would  hardly  seem  necessary  to  prove  the  existence  of  a  continuing  trust 
in  the  bankrupt's  favor;  if,  in  some  other  way,  it  is  shown  that  the  prop- 
erty is  still  recoverable,  and  that  the  bankrupt  knew  the  property  belonged 
to  his  creditors  when  he  made  oath  to  his  schedules  and  omitted  the  same. 

§  2514.  "Concealment"  Must  Be  of  Property  "Belonging  to  Es- 
tate."— "Concealment,"  in  order  to  be  a  bar  to  discharge,  must  be  con- 
cealment of  property  "belonging  to  the  estate. "^^^ 

Vernon  t'.  Ullman,  17  A.  B.  R.  438  (C.  C.  A.  Ills.):  "'The  whole  question' 
said  the  referee,  'turns  on  the  question  of  intent.'  *  *  *  While  intent  is  a 
pertinent  inquiry,  intent  is  not  the  sole  inquiry.  The  substance  of  the  oflfense 
is  the  withholding  of  assets;  so  that  the  true  inquiry  is  whether,  with  fraudulent 
intent,  he  withheld  from  his  schedule  property  belonging  to  his  creditors. 
Apart  from  the  withholding  of  assets,  the  intent  constitutes  no  cause  for  de- 
nying a  discharge;  and  the  lists  omitted,  constituting  no  part  of  the  prop- 
erty coming  to  the  creditors,  as  already  stated,  there  was  no  withholding  of 
assets,  and  no  cause- made  out  for  a  refusal  of  the  discharge.'' 

§  2515.  Merely  Working  for  Another,  Even  without  Pay,  While 
Insolvent,  No  Concealment. — There  can  be  no  "concealment,"  suffi- 
cient to  bar  discharge,  by  the  debtor's  merely  working  for  another,  with 
or  without  pay,  while  insolvent,  unless  the  proceeds  of  the  labor  are  con- 
•cealed.  Labor  is  not  tangible  property  capable  of  being  concealed ;  and 
an  insolvent  debtor  is  under  no  obligation  to  labor  for  his  creditors  but 
may  even  give  away  his  labor.  Of  course,  if  an  actual  interest  in  the  busi- 
ness exists,  or  the  debtor  is  actually  concealing  salary  or  wages  earned,  the 
case  is  different.  This  subject  is  taken  up  in  another  form  in  the  next  par- 
agraph.^"^^ 

106.  Inferentially.  In  re  Dauchy,  10  A.  B.  R.  527  (D.  C.  N.  Y.,  affirmed  by  C. 
C.  A.,  11  A.  B.  R.  511). 

107.  Bankr.  Act,  §  29  (b)  (l).  In  re  Quackenbush,  4  A.  B.  R.  295,  102  Fed. 
282  (D.  C.  N.  Y.).     See  ante,  §  2511,  "Secret  Trust,  etc." 

108.  See  labor  not  transferable  as  preference,  ante,  §  1280. 


§    2516  OPPOSITION  TO  DISCHARGE.  1515 

§  2516.  Thus,  Beginning  New  Business  as  Agent  for  Another. — 

The  debtor's  mere  starting  up  of  a  new  business  after  his  own  faikire,  for 
and  in  the  name  of  his  wife  or  some  other  third  person,  if  it  be  not  on 
capital  belonging  to  himself,  even  though  the  debtor  does  so  because  cred- 
itors could  otherwise  reach  the  avails  of  his  labor,  is  no  ground  for  barring 
discharge,  unless  he  actually  is  interested  in  the  business  or  unless  specific 
property,  once  his,  or  its  proceeds,  can  be  pointed  out  as  being  concealed  in 
the  new  business.  A  man  may  work  for  his  wife  or  for  another,  after  his 
own  failure,  for  nothing,  if  such  other  is  the  source  of  the  capital  invested 
and  he  himself  contributes  nothing  but  his  own  4abor :  there  can  be  no 
fraudulent  transfer  of  one's  labor,  and  a  man  may  give  away  his  labor, 
though  insolvent ;  for  creditors  have  no  power  to  make  him  work  for  them. 

In  re  Fitchard,  4  A.  B.  R.  609,  103  Fed.  742  (D.  C.  N.  Y.) :  "Briefly  stated, 
the  case  presented  is  that  of  a  man  who,  having  failed  with  judgments  against 
him,  transacts  business  thereafter  in  the  name  of  his  wife  for  the  purpose  of 
preventing  his  creditors  from  reaching  the  avails  of  his  labor.  There  is  noth- 
ing unusual  in  this  situation.  Thousands  of  insolvents,  since  the  repeal  of  the 
Bankruptcy  Act  of  1867,  have  resorted  to  similar  devices.  One  of  the  main 
objects  of  the  present  law  is  to  emancipate  this  vast  army  of  unfortunates  by 
permitting  them  to  emerge  from  a  questionable  and  undignified  seclusion  and 
face  the  vicissitudes  of  the  business  world  openly  and  honestly.  The  court  has 
no  difficulty  in  finding  that  the  business  of  the  bankrupt  was  conducted  in  the 
name  of  his  wife  for  the  purpose  of  preventing  his  creditors  from  reaching  the 
products  of  his  industry  and  skill.  The  title  to  the  real  estate  was  placed  in 
her  name  for  a  like  reason;  but  there  is  nothing  in  the  present  act  which  makes 
such  conduct  a  ground  for  withholding  a  discharge.  To  prevent  the  discharge 
property  belonging  to  the  bankrupt  must  be  fraudulently  concealed  from  his 
trustee.  The  record  does  not  show  a  case  of  this  kind.  When  the  bankrupt 
failed  in  1884  his  entire  estate,  apparently,  was  swept  away.  He  was  insolvent 
in  the  sum  of  nearly  $4,000.  Since  then,  unless  the  testimony  is  to  be'  rejected 
arbitrarily  and  suspicion  and  conjecture  substituted,  the  bankrupt  has  trans- 
acted business  for  his  wife,  the  capital  being  money  which  she  borrowed  and 
placed  in  his  hands.  He  gave  up  everything  when  he  failed;  there  is  not  a 
dollar's  worth  of  the  property  which  he  then  owned  now  in  existence;  there 
is  nothing  that  the  trustee  can  put  his  hand  on  and  assert  that  it  was  once  the 
property  of  the  bankrupt.  The  property  which  is  the  subject  of  controversy 
was  never  owned  by  the  bankrupt.  With  the  exception  of  a  few  months  when 
the  title  to  the  Seeley  property  stood  in  his  name,  he  never  held  the  equitable 
or  legal  title  to  any  of  it.  What  property  did  he  conceal?  Where  is  it  sit- 
uated? In  what  language  can  the  court  describe  it?  If  he  owns  no  property 
it  is  manifest  that  he  can  conceal  no  property.  The  general  facts  resemble 
those  disclosed  in  the  case  of  In  re  McGurn,  supra,  and  in  the  case  of  Freund 
(D.  C),  3  Am.  B.  R.  418,  98  Fed.  81,  where  the  business  was  transacted  by  the  " 
bankrupt  as  the  agent  of  his  wife.  A  married  woman  may  carry  on  business 
with  her  husband  as  agent,  and  the  fact  that  he  receives  no  compensation  other 
than  his  support  does  not  impair  her  title  to  the  property  or  subject  it  to  the 
claims  of  his  creditors.  Such  an  arrangement,  considered  ethically,  may  be  a 
fair  subject  of  discussion,  but  that  it  can  be  upheld  from  a  legal  point  of  view, 
is  beyond  doubt.  In  Abbey  v.  Deyo,  44  N.  Y.  343,  Judge  Hunt,  who  delivered 
the  opinion  of  the  Court  of  Appeals,  says,  at  page  346: 

"  'The  appellant's  counsel  insists  that  the  services,  the  time  and  talents  of  the 


1516  REMINGTON  ON  BANKRUPTCY.  §  2516 

husband  are  valuable,  and  he  has  no  more  right  to  give  them  to  his  wife,  as 
against  his  creditors,  than  to  give  to  her  his  property  to  their  prejudice.  The 
one,  he  says,  is  as  much  their  property  as  the  other.  This  argument  is  entirely 
unsound.  The  property  of  a  debtor,  by  the  laws  of  all  commercial  countries, 
belongs  to  his  creditors.  He  must  be  just  before  he  is  generous.  He  must 
pay  before  he  gives.  Not  so  with  his  talents  and  his  industry.  Whether  he 
has  much,  or  little,  or  nothing,  his  first  duty  is  the  support  of  his  family.  The 
instinctive  impulse  of  every  just  man  holds  this  to  be  the  first  purpose  of  his 
industry.  The  application  of  the  debtor's  property  is  rigidly  directed  to  the 
payment  of  his  debts.  He  cannot  transport  it  to  another  country,  transfer  it 
to  his  friends,  or  conceal  it  from  his  creditors.  Any  or  all  of  these  things 
he  may  do  with  his  industry.  He  is  at  liberty  to  transfer  his  person  to  a  foreign 
land.  He  may  bury  his  talent  in  the  earth,  or  he  may  give  it  to  his  wife  or 
friend.  No  law,  ancient  or  modern,  of  which  I  am  aware,  has  ever  held  to  the 
contrary.  No  country,  unless  both  barbarous  and  heathen,  has  ever  authorized 
the  sale  of  the  person  of  a  debtor  for  the  satisfaction  of  his  debts.'  Sec 
also,  Buckley  v.  Wells,  33  N.  Y.  518;  Knapp  v.  Smith,  27  N.  Y.  278." 
"Even  were  it  proved  that  the  property  in  dispute  was  once  owned  by  the 
bankrupt,  and  that  years  prior  to  the  passage  of  the  act  he  transferred  it  to  his 
wife,  such  a  conveyance,  in  the  absence  of  proof  that  the  property  is  held  for 
the  bankrupt  by  a  secret  trust,  cannot  bar  a  discharge  under  any  of  the  pro- 
visions of  the  present  act.  Where  property  owned  by  the  bankrupt  is  actually 
in  existence,  and  is  in  fact  concealed  from  the  trustee,  'or  where  the  title  is 
concealed  by  a  colorable  conveyance,  the  discharge  should  be  refused.'  Where 
neither  of  these  conditions  exists,  it  should  be  granted.  In  re  Murdock,  1  Low. 
362,  17  Fed.  Cas.  1010  (No.  9,939);    In  re  Boyntown  (D.  C),  10  Fed.  277. 

"Counsel  for  the  creditors  relies  upon  the  Quackenbush  Case  (D.  C),  4  Am. 
B.  R.  274,  102  Fed.  282;  but  the  case  at  bar  lacks  the  essential  element  which 
there  induced  the  court  to  refuse  the  discharge.  In  the  Qtiackenbush  Case  the 
referee  found  that  the  bankrupt  had  in  his  possession  and  under  his  control 
property,  in  specie,  which  had  been  transferred  by  him  to  his  wife  without  con- 
sideration, by  a  mere  legal  fiction,  to  prevent  his  creditors  from  reaching  it. 
But  for  this  fraudulent  title  the  trustee  could  lay  his  hands  upon  and  divide 
among  the  creditors  the  identical  property  once  owned  by  the  bankrupt.  In 
other  words,  it  was  the  property  of  the  bankrupt  which  he  had  attempted  to 
hide  by  a  veil  so  transparent  that  the  failure  was  visible  to  the  most  unobserv- 
ing.  All  these  ingredients  are  lacking  in  the  case  at  bar.  There  is  no  property 
which  can  be  said  to  belong  to  the  bankrupt,  there  is  no  concealment  and  no 
fraud. 

"The  report  of  the  referee  is  confirmed,  the  exceptions  are  overruled  and  the 
discharge  is   granted." 

In  re  Adams,  4  A.  B.  R.  698,  104  Fed.  72  (D.  C.  N.  Y.) :  "Starting  with  the 
proposition,  which  cannot  be  cotroverted,  that  the  assignment  was  and  is  a 
valid  instrument  vesting  the  title  in  Eldred  to  all  the  property,  there  is  little 
difficulty  in  discovering  the  fallacy  of  the  arguments  in  opposition  to  the  dis- 
charge. They  all  rest  upon  the  unsupported  assumption  that  the  assignment  was 
a  fraudulent  device  intended  to  create  a  secret  resulting  trust  in  favor  of  the 
bankrupt.  Since  the  assignment  the  bankrupt  has  been  endeavoring  to  support 
himself  and  family  and  has  transacted  business  as  agent  for  his  dauo-hters  a 
makeshift  not  infrequently  resorted  to  by  insolvent  debtors  who  seek  to  ex- 
empt their  future  earnings  from  the  grasp  of  creditors.  His  action  in  this  re- 
gard may  be  the  subject  of  criticism,  but  that  it  was  not  illegal  has  been  as- 
serted  by  the   highest   judicial   authority.     Abbey  v.    Deyo,   44   N.   Y.   343    and 


§   2519  OPPOSITION  TO  DISCHARGE.  I5l7 

cases  cited.     Surely  it  did  not  amount  to  a  fraudulent  concealment  of  his  prop- 
erty. 

"The  assignee  leased  to  one  of  the  bankrupt's  daughters  a  hop  yard,  which 
was  part  of  the  assigned  property,  and  she  realized  about  $800  from  its  culti- 
vation. That  was  in  1892.  About  the  same  time  a  small  lumber  business  was 
organized  under  the  name  of  the  Adams  Lumber  Company.  The  bankrupt's 
daughters  were  the  partners  in  this  enterprise.  They  furnished  the  capital,  but 
took  no  active  part  in  the  business,  which  was  managed  by  the  bankrupt,  who 
contributed  his  experience,  labor  and  skill.  The  business  was  at  no  time  re- 
munerative, and  there  is  nothing  to  show  that  anyone  connected  with  it  was  able 
to  save  any  of  the  profits  received  therefrom.  Certainly  there  is  no  proof  that 
the  bankrupt  has  property,  derived  from  the  hop  yard  or  the  lumber  company, 
which  he  has  hidden  from  his  trustee." 

§  2517.  Exact  Value  of  Assets  Concealed  Need  Not  Be  Capable  of 
Ascertainment,  if  of  Value. — The  exact  value  of  the  assets  concealed 
need  not  be  capable  of  ascertainment,  and,  indeed,  may  be  contingent,  yet 
if  the  assets  have  value,  it  is  sufficient. ^*^^ 

§  2518.  Even  if  of  Small  Value,  Intentional  Concealment  Will  Bar. 

— But  if  the  fraudulent  intent  to  conceal  is  proved,  the  discharge  should 
be  refused,  even  though  the  value  of  the  assets  may  be  small. ^^" 

Of  course,  the  fact  that  the  assets  concealed  were  of  trifling  value  is 
competent  evidence  tending  to  disprove  fraudulent  intent. ^^^ 

§  2519.  Failure  of  Creditors  to  Institute  Legal  Proceedings  to 
Recover  Concealed  Property  Tends  to  Rebut. — In  doubtful  cases  the 
failure  of  the  creditors  to  resort  to  legal  proceedings  to  recover  the  prop- 
erty alleged  to  be  concealed  is  of  weight  in  determining  concealment. 

In  re  Hirsch,  2  A.  B.  R.  723,  96  Fed.  468  (D.  C.  Tenn.) :  "It  is  undoubtedly 
true  that  the  right  of  the  creditors  to  specify  an  alleged  fraudulent  transaction 
in  opposition  to  a  discharge  does  not  depend  upon  their  having  taken  any  legal 
proceedings,  through  a  trustee  or  otherwise,  to  recover  the  property  itself,  and, 
if  it  appears  by  the  proof  that  there  has  been  a  fraudulent  transaction  denounced 
by  the  statute  as  a  sufficient  ground  for  withholding  the  discharge,  that  fact 
should  have  no  influence  whatever;  but  when  the  case  is  doubtful  or  incon- 
clusive, the  fact  that  the  creditors  have  not  proceeded  for  the  substantial  benefit 
of  recovering  the  property  is  quite  suggestive  to  the  court  trying  the  issue  of 
the  discharge  that  the  creditors  themselves  do  not  deem  the  proof  of  fraud  very 
strong. 

"The  machinery   of   the   bankruptcy   statute   is   designed   to   furnish    creditors 

109.  In  re  Becker,  5  -A.  B.  R.  438,  106  Fed.  54  (D.  C.  X.  Y.),  which  was  the 
case  of  a  tontine  policy  payable  to  the  bankrupt  only  in  the  event  of  his  sur- 
viving the  tontine  period. 

In  re  Schlesinger,  3  A.  B.  R.  342,  102  Fed.  117  (D.  C.  X.  Y.,  affirmed  by  C.  C. 
A.,  4  A.  B.  R.  361). 

110.  In  re  Lowenstein,  2  A.  B.  R.  193,  106  Fed.  51  (Ref.  X.  Y.). 

111.  In  re  Hirsch.  2  A.  B.  R.  715.  96  Fed.  468  (D.  C.  Tenn.). 


1518 


REMINGTON  ON  BANKRUPTCY.  §  2521 


with  every  opportunity  to  recover  the  fraudulently  concealed  property  of  a 
bankrupt,  and,  where  they  do  not  resort  to  that  method  of  redress,  they  do  nut 
stand  in  the  same  attitude  in  opposition  to  the  discharge  that  they  otherwise 
would.  In  an  evenly  balanced  condition  of  the  proof,  it  is  a  fact  which  should 
turn  the  scales  in  favor  of  the  bankrupt's  discharge,  upon  the  ground  that  the 
creditors  themselves  had  been  either  not  very  diligent  about  the  proof,  or  else  re- 
garded it  as  not  very  formidable,  as,  indeed,  it  appears  here  not  to  be." 

In  re  Adams,  4  A.  B.  R.  698,  104  Fed.  72  (D.  C.  N.  Y.) :  "He  can  be  called 
to  answer  for  his  stewardship  in  the  courts  of  the  State.  The  fact  that  he  has 
not  been  asked  to  account  furnishes  a  strong  presumption  that  the  creditors 
have  no  valid  ground  of  complaint." 

§  2520.  Amendment  of  Schedules  after  Discovery  of  Concealed 
Assets,  of  No  Avail.— Amendment  of  the  schedules  after  discovery  of 
assets  omitted  therefrom  for  the  purpose  of  conceahiient  from  creditors, 
will  not  avail  the  bankrupt.^i- 

Analogously  ("false  oath"  charged),  In  re^  Eaton,  6  A.  B.  531,  110  Fed.  731 
(D.  C.  N.  Y.):  "The  filing  of  the  amended  schedule,  giving  a  full  statement  of 
the  property  in  question,  and  offering  to  deliver  the  certificates  of  stock  to  the 
trustee,  is  evidence  tending  to  show  the  absence  of  an  unlawful  intent,  but  it 
is  by  no  means  a  conclusive  answer  to  the  objections.  A  ruling  that  a  bankrupt 
may  verify  false  schedules  and,  upon  discovery,  avoid  the  consequences  of  his 
act  by  an  amendment,  is  contrary  to  the  spirit  of  the  law,  which  aims  to  relieve 
honest  debtors  only.  If  the  law  were  so  construed,  a  bankrupt  runs  no  risk 
in  making  a  fraudulent  return  of  his  property  supported  by  a  false  oath,  for,  if 
undiscovered,  he  secures  the  fruits  of  his  wrongdoing,  and,  if  detected,  he  can 
still  obtain  his  discharge  by  amending  his  schedules  so  as  to  contain  the  infor- 
mation which  the  creditors  have  unearthed  in  spite  of  his  efforts  at  concealment. 

"On  the  other  hand,  omissions  frequently  occur  inadvertantly,  and  a  prompt 
acknowledgment  of  the  mistake,  accompanied  by  a  return  of  the  property,  are 
circumstances  tending  to  show  good  faith." 

In  re  Gross,  5  A.  B.  R.  271  (Ref.  N.  Y.) :  "The  courts  are  extremely  liberal 
in  permitting  amendments  in  cases  of  mistake  or  accident;  but  here  we  have 
deliberation  and  premeditation,  and  forbearance  or  clemency  should  not  be  ex- 
tended or  the  law  strained  to  aid  and  favor  such  a  bankrupt,  whose  bus'ness 
career  is  tainted,  and  whose  conduct  towards  his  creditors  has  not  been  formu- 
lated on  t\\e  lines  of  honest  fair  dealing.  In  re  McNamara,  2  Am.  B.  R.  566; 
In  re  Welch,  3  Am.  B.  R.  93;    In  re  Lewin,  4  Am.  B.  R.  636." 

§  2521.  Instances  Held  Sufficient  to  Bar  Discharge  for  Conceal- 
ment of  Assets. — In  the  footnotes  are  given  instances  that  have  been 
held  sufficient,  under  the  present  Bankruptcy  Act,  to  bar  discharge  on  the 
ground  of  concealment  of  assets. ^^^ 

112.  In  re  Breiner,  11  A.  B.  R.  684,  129  Fed.  155  (D.  C.  Iowa). 

113.  1.  Disbursements  to  relatives  on  the  eve  of  insolvencv  upon  alleged 
debts,  when  previous  statements  of  financial  condition,  made  with  view  to  ob- 
taining credit,  show,  no  debts  to  them  during  period  when  the  debts  are  now 
alleged  to  have  been  in  existence,  there  being  no  memorandum  thereof  in  the 
usual  course  of  trade  made  by  the  bankrupt,  held  to  be  a  concealment  of  assets 


§    2522  OPPOSITION  TO  DISCHARGE.  1519 

§  2^22.  Instances  Held  Insufficient  to  Prove  Fraudulent  Conceal- 
ment.— In  the   footnotes  are  given  instances  that  have  been  held,  under 

and   a  bar   to   discharge,   In   re   Greenberg,   8   A.   B.   R.   94,    114   Fed.   773    (D.    C. 
Conn.). 

2.  Alleged  debts  to  relatives  not  mentioned  in  previous  financial  statements: 
In  re  Grossman,  6  A.  B.  R.  510,  111  Fed.  507  (D.  C.  Mich.). 

3.  Failure  to  schedule  property  that  might  have  been  claimed  as  exempt,  In  re 
Royal,  7  A.  B.  R.  106,  112  Fed.  135  (D.  C.  N.  Car.). 

4.  Failure  to  schedule  interest  in  father's  estate  -vested  in  bankrupt  before 
adjudication.  In  re  Roosa,  9  A.  B.  R.  531,  119  Fed.  542  (D.  C.  Iowa). 

5.  Turning  bulk  of  proceeds  of  cargo  of  goods  (sold  at  wholesale  immediately 
on  receipt)  over  to  one  who  is  not  a  business  creditor,  on  an  alleged  debt, 
where  no.  entry  of  the  original  debt  appears  on  the  bankrupt's  books,  nor  entry 
of  the  check  on  his  stub  book,  and  the  alleged  creditor  is  not  called  in  cor- 
roboration, sufficiently  proves  concealment  of  assets,  In  re  Holstein,  8  A.  B.  R. 
147,  114  Fed.  794  (D.  C.  Conn.). 

6.  Omitting  property  of  value  from  schedules  although  advised  not  to  omit 
property  of  value;  and  at  the  same  time  including  property  of  no  value,  is,  unless 
explained,  conclusive  upon  the  issue  of  fraud  against  the  bankrupt,  Osborne  v. 
Perkins,  7  A.  B.  R.  250,  112  Fed.  127  (C.  C.  A.  Mass.). 

7.  Bankrupt's  evident  unwillingness  to  explain  the  disposition  of  property 
shown  to  be  in  his  possession  a  short  time  before  the  filing  of  his  bankruptcy 
petition,  where  such  explanation  must  have  been  within  the  memory  of  an 
intelligent  man,  warrants  the  inference  of  concealment  of  assets  and  justifies  the 
refusal  of  discharge,  In  re  Cabus,  6  A.  B.  R.  156  (D.  C.  N.  Y.). 

8.  Illiterate  bankrupt  swearing  to  schedules  that  he  has  no  assets  except 
those  exempt,  when  it  is  clearly  deducible  from  a  comparison  of  his  purchases 
and  sales,  from  his  statements  to  mercantile  agencies,  etc.,  that  he  still  possesses 
other  assets. 

9.  Ostensible  corporation  but  in  reality  bankrupt's  own  device  for  defrauding 
his  creditors  by  crafty  manipulation  of  stock,  etc..  In  re  Wertheimer,  6  A.  B.  R. 
756  (D.  C.  N.  Y.). 

10.  Transfer  of  business  and  all  other  property  to  wife,  on  litigation  being 
threatened,  and  ostensible  employment  by  her  thereafter  on  an  annual  salary  of 
$2500,  but  the  business  to  all  appearance  continued  in  the  same  manner  and  in 
the  bankrupt's  name,  the  bankrupt  keeping  an  individual  checking  account  and 
paying  taxes,  etc.,  therefrom;  but  keeping  no  books;  held  to  be  a  continuing 
concealment,  In  re  Bemis.  5  A.  B.  R.  36,  104  Fed.  672  (D.  C.  N.  Y.). 

11.  Property  put  into  wife's  name  with  retention  of  beneficial  interest,  In  re 
Steindler  &  Hahn,  5  A.  B.  R.  63  (D.  C.  N.  Y.). 

12.  Managing  as  wife's  agent  business  formerly  owned  by  bankrupt  himself 
and  transferred  to  her  while  threatened  with  enforcement  of  large  judgment, 
In  re  Welch,  3  A.  B.  R.  93,  100  Fed.  65  (D.  C.  Ohio,  distinguished  in  In  re 
Locks,  5  A.  B.  R.  136,  104  Fed.  783,  D.  C.  N.  Y.) ;  analogously  (false  oath).  In 
re  Gammon,  6  A.  B.  R.  482,  109  Fed.  312  (D.  C.  Iowa). 

13.  Mortgaging  stock  to  a  relative  who  immediately  forecloses;  stock  bought 
in  by  a  stranger,  who  immediately  transfers  his  bid  to  the  bankrupt's  friend,  who 
in  turn  sells  to  wife,  the  purchaser  handing  the  money  directly  to  the  wife  who 
in  turn  pays  the  officer  making  the  sale.  In  re  Smith,  3  A.  B.  R.  95,  100  Fed.  795 
(D.  C.  Ga.,  distinguished  In  re  Locks,  5  A.  B.  R.  136,  D.  C.  X.  Y.). 

14.  Doing  business  in  wife's  name,  books,  etc.,  missing,  In  re  Gross,  5  A.  B. 
R.  271  (D.  C.  N.  Y.)._ 

15.  Doing  fine  business  for  many  years  after  a  previous  failure  but  claiming 
to  be  doing  so  as  manager  of  firm  composed  of  wife  and  brother,  wife  knowing 
little  about  the  business,  debtor  drawing  no  salary  but  drawing  whatever  he 
wanted  from  time  to  time;  failure  to  schedule  an  interest  in  the  business  is 
concealment  of  assets.  In  re  Herrman,  13  A.  B.  R.  778   (C.  C.  A.  N.  Y.). 

16.  Failing  to  schedule  tontine  policy  pavable  to  bankrupt  if  he  outlive  ton- 
tine period.  In  re  Becker,  5  A.  B.  R.  438,  106  Fed.  54  (D.  C.  N.  Y.). 

17.  Fraudulently,  and  in  contemplation  of  bankruptcy,  so  intermingling  his 
funds  with  his  wife's  funds  as  to  render  them  indistinguishable,  doing  so  to 
keep  his  creditors  from  "jumping  on  them,"  Bragassa  v.  St.  Louis  Cycle  Co.,  5 


1520  REMINGTON  ON  BANKRUPTCY.  §  2522 

the  present  law,  insufficient  to  prove  fraudulent  concealment  of  assets.^i* 

A.  B.  R.  700,  107  Fed.  77  (C.  C.  A.  Tex.,  affirming  In  re  Bragassa,  4  A.   B.  R. 
519    103  Fed    936). 

18.  Pretending  to  do  business  as  wife's  manager  or  agent  and  faihng  to 
schedule  the  business,  In  re  Lowenstein,  2  A.  B.  R.  193,  106  Fed.  51  (Ref.  N. 
Y.,  since  appointed  district  judge). 

19.  Failure  to  account  reasonablj-  for  disappearance  of  assets,  In  re  O  ^''^> 
3  A  B.  R.  349,  97  Fed.  952  (D.  C.  Ore.);  In  re  Cashman,  4  A.  B.  R.  326,  103  Fed. 
67  (D.  C.  N.  Y.).  1  ■      ,    •          r 

20  Failure  to  schedule  vested  remainder  and  denial  of  ownership,  being  ot- 
fered,  In  re  Wood,  3  A.  B.  R.  572.  98  Fed.  972  (D.  C.  N.  Y.). 

21.  Conveying  property  to  wife  in  fraud  of  creditors  and  omitting  same  from 
schedules,  In  re  Skinner,  3  A.  B.  R.  163,  97  Fed.  190  (D.  C.  Iowa). 

22.  Selling  goods  worth  $11,000  for  $3,800  and  a  store  worth  $6,000  for  $1,000, 
etc,  indicate  dishonest  intentions:  mutilated  accounts:  conveyances  to  relatives, 
etc..  In  re  ^lendelson,  4  A.  B.  R.  103,  102  Fed.  119  (D.  C.  N.  Y.). 

23.  Chattel  mortgage  to  sister  on  bankrupt's  effects  for  a  fictitious  loan. 
In  re  Heyman,  4  A.  B.  R.  735,  104  Fed.  677  (D.  C.  X.  Y.). 

24.  Alleged  robbery,  as  means  of  accounting  for  discrepancy  of  assets.  In  re 
Hershkowitz,  14  A.  B.  R.  86,  136  Fed.  950  (D.  C.  N.  Y.). 

25.  Collusion  between  trustee  and  bankrupt  as  to  receipt  of  money  by  bank- 
rupt after  adjudication,  and  its  being  turned  over  to  the  trustee,  In  re  Leslie, 
9  A.  B.  R.  561,  119  Fed.  406  (D.  C.  N.  Y.). 

26.  In  re  Schenck.  8  A.  B.  R.  727,  116  Fed.  554  (D.   C.  Wash.). 

27.  In  re  Otto,  8  A.  B.  R.  305,  115  Fed.  860  (D.  C.  X.  J.,  affirming  8  A.  B.  R. 
753). 

28.  Failure  to  schedule  fraudulently  conveyed  property.  In  re  Toothaker 
Bros.,  12  A.  B.  R.  99,  128  Fed.  187  (D.  C.  Conn.). 

114.  1.  "Where  the  record  is  barren  of  competent  evidence  that  $100,000.00 
alleged  to  have  been  concealed,  ever  existed,  discharge  will  not  be  refused." 
In  this  case  the  proof  was  conclusive  that  the  bankrupt  had  reported  assets  of 
$153,000  to  Dun's  Agency  but  court  held  conclusive  proof  of  this  fact  was  not 
proof  that  he  had  the  assets.  In  re  Lesser,  8  A.  B.  R.  15,  114  Fed.  83  (C.  C.  A. 
X.  Y.,  reversing  In  re  Lesser,  5  A.  B.  R.  330). 

2.  Claiming  as  exempt  in  Schedule  "B"  (5)  property  wholly  omitted  (and 
with  notation  of  "none")  from  its  appropriate  schedule,  not  per  se  concealment, 
In  re  Semmel,  9  A.  B.  R.  351,  118  Fed.  487  (D.  C.  Pa.). 

3.  Failure  to  schedule  interest  as  beneficiary  in  life  insurance  policy  pledged 
to  the  amount  of  its  paid  up  value,  attorney  advising  it  to  be  worthless  as  asset. 
In  re  Blalock,  9  A.  B.  R.  266,  118  Fed.  679  (D.  C.  S.  C). 

4.  Unexplained  shrinkage  in  the  bankrupt's  assets  of  about  $12,000  within  a 
3'ear  of  his  bankruptcy  is  insufficient  proof  that  he  had  that  amount  of  money 
at  the  time  of  filing  his  petition  and  concealed  it  from  his  creditors.  In  re  Leslie, 
9  A.  B.  R.  561,  119  Fed.  406  (D.  C.  X.  Y.). 

5.  Sale  of  real  estate  for  $5,000:  claimed  to  be  worth  now  $9,000:  but  pur- 
chaser put  improvements  upon  it:  also  conflicting  testimony  as  to  present  value: 
one  witness  testifying  it  is  only  worth  now  $6,000  with  all  improvements,  In  re 
Harris,  11  A.  B.  R.  649  (Ref.  X.  Y.). 

6.  Fraudulent  intent  and  knowledge  not  shown.  Smith  t'.  Keegan,  7  A.  B.  R. 
4,  111  Fed.  157  (C.  C.  A.  Mass.);  In  re  Schofield,  17  A.  B.  R.  910,  15  A.  B.  R. 
824  (D.  C.  Pa.). 

7.  Transfers  complained  of  all  occurring  more  than  a  year  before  bankruptcy, 
at  a  time  when  no  present  debts  existed;  all  being  on  record  and  freely  testi- 
fied to  by  bankrupt.  Fields  v.  Karter,  8  A.  B.  R.  351,  115  Fed.  950  (C.  C.  A. 
Ala.). 

8.  Xo  claim  inserted  in  schedules  for  wages  of  bankrupt  for  services  per- 
formed for  his  father  on  the  farm,  the  bankrupt  being  sole  heir  and  no  agree- 
ment for  wages  existing;  In  re  Howden,  7  A.  B.  R.  191,  111  Fed.  723  (D.  C.  N. 
Y.).     This  case,  however,  was  decided  as  to  the  charge  of  a  "false  oath." 

9.  Conveying  property  to  wife  for  full  consideration,  more  than  four  months 
before  bankruptcy,  to  raise  money  for  the  expenses  of  an  impending  law  suit  for 
breach  of  promise  to  marry,  is  no  ground  for  denying  discharge,  In  re  Brum- 
baugh, 12  A.  B.  R.  204  (D.  C.  Penn.). 

10.  Fact  that  bankrupt,  an  only  child  and  his  wife  resided  upon  his  father's 


g   2523  OPPOSITION   TO  DISCHARGE.  1521 

SUBDIVISION   "b." 

"False;  Oath"  as  Bar  to  Discharge;. 
§  2523.  "False  Oath"  as  Bar  to  Discharge. — If  a  bankrupt,  know- 
real  estate  is  not  sufiBcient  to  bar  his  discharge,  it  not  appearing  that  the  bank- 
rupt made  a  clear  misstatement  with  regard  to  the  ownership  of  the  real  estate 
amounting  to  a  concealment  of  assets  or  false  oath,  In  re  Brumbaugh,  12  A.  B. 
R.  204,  128  Fed.  971  (D.  C.  Penn.). 

11.  Shortage  in  value  of  stock  largely  due  to  loose  and  careless  business 
methods  and  to  a  fire,  necessitating  fire  loss  sale  below  cost,  held  insufficient  to 
sustain  charge  of  concealment,  the  bankrupt  denying  concealment,  In  re  Allen- 
dorf,  12  A.  B.  R.  .320,  129  Fed.  981  (D.  C.  Iowa). 

12.  Equity  in  pledged  stock  not  scheduled;  nine  shares  of  stock  retained  by 
lender  of  money,  on  organization  of  new  company,  as  security  for  the  money 
loaned;  bankrupt  reports  merely  the  remaining  one  share  as  owned  by  him,  In 
re  Conn,  6  A.  B.  R.  217,  108  Fed.  525  (D.  C.  Oregon). 

13.  The  payment  of  a  bona  fide  debt  is  not  a  concealment  of  assets.  In  re 
Covington,  6  A.  B.  R.  373,  110  Fed.  143   (D.  C.  N.  Car.). 

14.  Discovery  of  microscopic  germs  of  dishonesty  to  some  creditors  in  mak- 
ing payment  of  debts  is  not  sufficient  ground  to  bar  discharge.  In  re  Covington, 
6  A.  B.  R.  373,  110  Fed.  143   (D.  C.  N.  Car.). 

15.  Failure  to  schedule  property  fraudulently  conveyed  many  years  before,  no 
ground  for  barring  discharge.  In  re  Goodale,  6  A.  B.  R.  493,  100  Fed.  65  (D.  C. 
N.  Y.),  the  property  being  conveyed  to  wife  in  1863  and  1875;  In  re  Bryant,  5 
A.  B.  R.  114,  104  Fed.  789  (D.  C.  Tenn.),  in  which  case  a  desk  was  given  away 
while  the  debtor  was  insolvent  but  before  the  passage  of  the  Bankrupt  Act. 

16.  Failure  to  schedule  products  of  wife's  separate  property  in  Vermont, 
where  the  law  of  that  state  is  that  such  products  belong  to  the  husband  by  vir- 
tue of  his  marital  rights,  he  openly  declaring  all  the  time  that  the  products  are 
his  wife's  own,  In  re  Marsh,  6  A.  B.  R.  537  (D.  C.  Vt.). 

17.  Undervaluing  of  property  claimed  as  exempt  is  not  per  se  concealment 
of  it.  In  re  Semmel,  9  A.  B.  R.  352,  118  Fed.  487   (D.  C.  Pa.). 

18.  Transfer  to  wife  within  four  months,  she  being  a  creditor.  In  re  Brown, 
15  A.  B.  R.  350,  140  Fed.  383   (D.  C.  Vt.). 

19.  Concealment  of  assets  by  the  agent  or  manager  in  charge  of  the  bank- 
rupt's business  is  not  imputable  to  the  bankrupt  unless  personally  cognizant 
thereof.  In  re  Meyers,  5  A.  B.  R.  4,  105  Fed.  353  (D.  C.  N.  Y.). 

20.  Failure  to  schedule  chose  in  action  for  wrongful  death  where  bankrupt 
is  beneficiary  and  settlement  has  been  made  for  $200  and  where  wife  has  lien 
thereon  for  funeral  expenses  advanced,  In  re  Burnstine,  12  A.  B.  R.  59G,  131 
Fed.  828  (D.  C.  Mich.). 

21.  Alleged  purchase  in  wife's  name  with  bankrupt's  money,  not  sustained,  In 
re  Tillyer,  17  A.  B.  R.  125  (D.  C.  Pa.). 

22.  Discrepancy  between  statement  of  financial  condition  prior  to  bankruptcy 
and  in  schedules,  and  as  realized  b}^  trustee:  evidence  insufficient  to  show  con- 
cealment, In  re  Boyden,  13  A.  B.  R.  269,  132  Fed.  991  (D.  C.  Pa.). 

23.  Failure,  under  advice  of  counsel,  to  schedule  watch  and  chain  worn 
openly  on  person.  In  re  Bryant,  5  A.  B.  R.  114,  104  Fed.  789   (D.   C.  Tenn.). 

24.  Failure  to  schedule 'business  owned  by  wife,  and  given  her  by  another 
than  her  husband  but  "managed"  by  bankrupt.  In  re  Bryant,  5  A.  B.  R.  114, 
104  Fed.  789  (D.  C.  Tenn.);  In  re  Freund,  3  A.  B.  R.  418,  98  Fed.  81  (D.  C. 
N.  Y.). 

25.  Failure  to  schedule  articles  of  small  value  given  away  long  before  the 
passage  of  the  Bankrupt  Act  although  probably  recoverable  by  trustee  because 
given  when  debtor  insolvent,  In  re  Bryant,  5  A.  B.  R.  114,  104  Fed.  789  (D.  C. 
Tenn.). 

26.  Business  of  bankrupt  levied  on  and  sold  under  execution  and  also  under 
mortgage  bought  in  by  judgment  creditor  and  mortgagee  for  fair  price,  who 
employ  bankrupt  to  manage  it  as  agent  and  subsequently  sell  it  for  a  fair  price 
to  bankrupt's  wife*  is  not  sufficient  proof  of  continued   ownership   in   bankrupt, 

2  Rem  B— 21 


1522  REMINGTON  ON  BANKRUPTCY.  §  2523 

ingly  and  fraudulently,  makes  a  false  oath  or  account  in,  or  in  reta- 
in absence  of  showing  wife  paid  for  it  with  husband's  funds,  In  re  Locks,  5  A. 
B.  R.  136,  104  Fed.  783  (D.  C.  N.  Y.). 

27.  Failure  to  schedule  part  of  month's  salary  as  public  officer  earned  but  not 
due  is  not  a  bar,  such  salary  not  passing  to  creditors  in  Connecticut,  In  re 
Doherty,  13  A.  B.  R.  5.51,  135  Fed.  433  (D.  C.  Conn.). 

28.  Failure  to  schedule  certain  lands  of  which  bankrupt  had  been  dispos- 
sessed by  order  of  the  Government  Land  Office,  the  order  being  reversed  after 
his  discharge,  is  not  concealment,  especially  in  view  of  his  having  notified  his 
counsel  and  the  trustee  as  well  of  his  rights.  In  re  Hansen,  5  A.  B.  R.  747,  107 
Fed.  252  (D.  C.  Ore.). 

29.  Failure  to  schedule  conditional  and  personal  right  of  purchase  is  not 
concealment:  such  right  is  not  an  asset  of  the  estate,  In  re  Hansen,  5  A.  B.  R. 
747,  107  Fed.  252  (D.  C.  Ore.). 

30.  Failure  to  schedule  interest  under  a  will  where  counsel  advised  it  wa.s 
contingent  and  not  vested  and  question  is  a  close  one,  will  not  bar  discharge, 
actual  fraudulent  intent  being  absent.  Woods  zk  Little,  13  A.  B.  R.  742,  134  Fed. 
229   (C.  C.  A.  Penn.). 

31.  Withholding  from  trustee  monev  earned  since  adjudication  is  not  a  bar, 
In  re  Polakoff,  1  A.  B.  R.  358  (Master's  Report,  affirmed  by  D.  C.  N.  Y.). 

32.  Failure  to  schedule  property  transferred  to  mother  on  eve  of  bankruptcy 
under  advice  of  counsel,  the  mother  already  holding  a  mortgage  thereon  and 
the  equitjr  of  redemption  "being  of  uncertain  value,  In  re  Schreck,  1  A.  B.  R.  366 
(Master's  Report  N.  Y.). 

33.  Failure  to  disclose  property  bought  with  proceeds  of  surrender  of  life 
insurance  policy  where  the  life  insurance  policy  was  payable  to  wife  is  not  a 
concealment,  for  the  property  was  the  wife's  and  not  the  bankrupt's.  In  re 
Dews,  2  A.  B.  R.  483,  96  Fed.  181  (D.  C.  R.  I.). 

34.  Failure  to  schedule  property  fraudulently  conveyed  to  wife  where  no 
secret  trust  is  shown  to  have  continued  in  bankrupt.  In  re  Berner,  4  A.  B.  R. 
383  (Ref.  Ohio);  In  re  Crenshaw,  2  A.  B.  R.  623,  95  Fed.  632  (D.  C.  Ala.).  See 
ante,  §  2511. 

35.  Failure  to  schedule  property — equity  of  redemption — alleged  fraudulently 
transferred  to  sons  but  no  secret  trust  appearing,  In  re  Jacobs,  16  A.  B.  R. 
483,  144  Fed.  868   (D.  C.  N.  J.). 

36.  Failure  to  schedule  property  under  honest  belief  that  it  does  not  belong 
to  the  bankrupt,  is  insufficient  to  bar  discharge,  In  re  Hirsch,  2  A.  B.  R.  715,  96 
Fed.  468   (D.  C.  Tenn.). 

37.  Failure  to  schedule  property  under  honest  belief  that  it  was  practically 
valueless.  In  re  Hirsch,  2  A.  B.  R'.  715,  96  Fed.  468  (D.  C.  Tenn.);  In  re  Blalock, 
9  A.  B.  R.  266,  118  Fed.  679  (D.  C.  S.  C),  in  which  the  property  involved  was  an 
interest  as  beneficiary  in  a  life  insurance  policy. 

38.  Failure  to  schedule  property  under  honest  mistake  of  law  and  fact.  In  re 
Morrow,  3  A.  B.  R.  263,  97  Fed.  574  (D.  C.  Calif.). 

39.  Denial  of  interest  in  business  alleged  to  belong  to  wife  in  which  bankrupts 
claim  to  be  mere  employees,  no  actual  interest  being  traceable  to  bankrupts,  In 
re  Hirsch,  3  A.  B.  R.  344,  97  Fed.  571  (D.  C.  N.  Y.). 

40.  Failure  to  schedule  lease  of  house  wherein  bankrupt  resides  where  the 
lease  is  for  one  year  and  is  not  shown  to  be  worth  more  than  its  rent,  is  not 
sufficient  to  bar  discharge.  In  re  Hirsch,  3  A.  B.  R.  344,  97  Fed.  571  (D.  C.  N.  Y.). 

41.  Failure  of  attorney  at  law  to  schedule  written  contracts  for  contingent 
fees  where  some  of  the  cases  are  on  the  court  calendar  and  some  are  not,  so,me 
are  tried  and  some  are  on  appeal,  is  not  a  bar.  In  re  IMcAdam,  3  A.  B.  R.  417,  9S 
Fed.  409  (D.  C.  N.  Y.).  But  it  would  hardly  seem  that  all  of  the  cases  would 
come  under  the  rule  that  uncompleted  contracts  for  personal  services  are  not 
assets  passing  to  the  trustee.  Certainly  the  fees  on  cases  that  were  already 
tried  and  not  appealed  from  would  not  come  under  the  rule,  In  re  Freund,  3  A. 
E.  R.  418,  98  Fed.  81  (D.  C.  N.  Y.). 

42.  Acting  under  power  of  attorney  as  manager  for  wife  of  a  business  formerly 
owned  by  the  bankrupt  himself  but  on  his  previous  failure  conveyed  by  formal 
bill  of  sale  to  his  wife  in  satisfaction  of  a  debt  owed  by  the  bankrupt  to  his 
brother,  the  testimony  uncontradicted,  In  re  Freund,  3  A.  B.  R  418  98  Fed  81 
(D.  C.  N.  Y.). 

43.  Omission  from  schedules  of  furniture  bought  for  wife  many  years  ago  and 


§    2526  OPPOSITION   TO  DISCHARGE.  1523 

tion   to,   any  proceeding   in   bankruptcy  his   discharge   will  be   refused. ^^^ 

In  re  Troeder,  17  A.  B.  R.  731,  150  Fed.  710  (C.  C.  A.  Mass.):  "*  *  *  and 
according  to  the  practical  construction  of  the  Statute  it  is  settled  that  the  al- 
leged false  oath  must  contain  all  the  elements  involved  in  perjury  at  common 
law,  namely  an  intentional  untruth  in  a  matter  material  to  an  issue  which  is 
itself  material." 

§  2524.  Must  Be  False  Oath  or  False  Account. — There  must  have 
been  a  false  oath  or  a  false  accoinit  made  by  the  bankrupt. i^''' 

§  2525.  Oath  Must  Be  Authorized  by  Statute  and  Administered 
by  One  Authorized. — And  the  oath  must  have  been  authorized  by  stat- 
ute, and  have  been  administered  by  one  authorized  to  administer  oaths. i^''' 

§  2526.  Sufficient  if  Administered  Either  before  Testifying  or 
Afterwards. — It  is  sufficient  if  the  bankrupt  were  sworn  either  before  he 
began  his  testimony  or  afterwards  when  about  to  sign  it.^^^ 

presumably  intended  as  a  gift  to  her.  In  re   Freund,  3  A.  B.   R.  418,  98   Fed.  81 
(D.  C.  N.  Y.). 

44.  Alleged  transfer  of  stock  to  wife  in  payment  of  a  debt  shortly  before 
bankruptcy  the  good  faith  of  the  debt  not  being  questioned,  In  re  DeLeeuw,  3 
A.  B.  R.  418,  98  Fed.  408  (D.  C.  N.  Y.). 

45.  Wastefulness  before  failure,  three  years  before  bankruptcy,  In  re  Phillips, 
3  A.  B.  R.  542,  98  Fed.  844  (D.  C.  N.  Y.). 

46.  Failure  to  schedule  interest  in  father's  estate  where  such  interest  by  the 
will  was  left  dependent  upon  the  exercise  of  a  power  of  appointment  in  the 
mothQr,  In  re  Wetmore,  3  A.  B.  R.  700,  99  Fed.  703  (D.  C.  Pa.). 

47.  Managing  business  and  property  transferred  to  wife  eleven  years  before 
the  passage  of  the  Bankruptcy  Act,  as  wife's  agent,  the  same  opposing  creditor 
having  formerly  bee'n  defeated  in  an  attempt  to  have  the  conveyance  declared 
fraudulent,  In  re  McGurn,  4  A.  B.  R.  459,  102  Fed.  743  (D.  C.  Nev.). 

48.  Doing  business  as  agent  or  manager  for  wife  or  other  relative,  the  debtor 
contributing  his  services — without  salary  or  other  compensation  than  his  living, 
having  previously  failed  and  lost  everything,  no  part  of  the  capital  of  the  present 
business  being  his  assets,  labor  alone  having  been  contributed  to  the  business, 
In  re  Fitchard,  4  A.  B.  R.  609,  103  Fed.  742  (D.  C.  N.  Y.) ;  In  re  Adams,  4  A.  B. 
R.  696,  104  Fed.  72  (D.  C.  N.  Y.). 

49.  Omission  to  schedule  insurance  policies  pledged  for  more  than  their 
value,  In  re  Adams,  4  A.  B.  R.  696,  104  Fed.  72  (D.  C.  N.  Y.). 

50.  Failure  to  schedule  or  to  surrender  homestead  awarded  as  alimony  to  bank- 
rupt wife  after  adjudication,  is  not  a  concealment  of  assets.  In  re  LeClaire,  10 
A.  B.  R.  733,  124  Fed.  654  (D.  C.  Iowa). 

51.  Failure  to  account  for  profits  under  contracts  taken  after  adjudication.  In 
re  Parish,  10  A.  B.  R.  548,  122  Fed.  553  (D.  C.  Iowa). 

52.  Property  concealed  from  former  assignee  or  receiver  to  whom  title  to  all 
property  of  the  bankrupt  had  previously  been  conveyed  does  not  constitute  con- 
cealment from  the  subsequent  trustee  in  bankruptcy,  In  re  H.  D.  Berner,  4  A.  B. 
R.  383  (Ref.  Ohio,  affirmed  by  D.  C.) ;  obiter.  In  re  Lesser,  8  A.  B.  R.  15,  114 
Fed.  83  (C.  C.  A.  N.  Y.,  disapproving  5  A.  B.  R.  330). 

115.  Bankr.  Act,  §§  14  (b)  and  29  (b)   (2). 

116.  U.  S.  V.  Wechsler,  16  A.  B.  R.  4  (D.  C.  N.  Y.,  reversed,  on  other  grounds, 
sub  nom.  Wechsler  v.  U.  S.,  19  A.  B.  R.  1,  C.  C.  A.). 

117.  U.  S.  V.  Wechsler,  16  A.  B.  R.  4  (D.  C.  N.  Y.,  reversed,  on  other  grounds, 
sub  nom.  Wechsler  v.  U.  S.,  19  A.  B.  R.  1,  C.  C.  A.). 

118.  U.  S.  V.  Wechsler,  16  A.  B.  R.  4  (D.  C.  N.  Y,  reversed,  on  other  grounds, 
sub  nom.  Wechsler  v.  U.  S.,  19  A.  B.  R.  1,  C.  C.  A.). 


1524  REMINGTON  ON   BANKRUPTCY.  §  2530 

§  2527.  Must  Be  in  or  in  Relation  to  Bankruptcy  Proceedings.— 

The  false  oath  or  account  must  have  been  in  or  in  relation  to  his  bank- 
ruptcy proceedings;  but  it  is  sufficient  to  bar  discharge  if  it  were  made  in 
or  in  relation  to  any  bankruptcy  proceedings. 

Thus,  a  false  oath  upon  the  hearing  upon  the  petition  for  adjudication 
in  involuntary  bankruptcy,  is  sufficient  to  bar.^i''  But  verification  of  an 
untrue  answer  to  the  petition  has  been  held  not  to  constitue  such  a  false 
oath  where  the  answer  was  not  filed  in  time  nor  considered. ^^o 

False  testimony  given  on  the  discharge  hearing  would  be  a  bar  ;i2i  the 
only  difficulty  being  that  where  the  false  oath  was  not  given  until  after  the 
specifications  were  filed,  it  would  have  to  be  brought  into  the  specifications 
by  supplemental  pleading,  which  course  might  be  open  to  objection.  How- 
ever, it  is  to  be  considered  that  the  bankrupt,  after  entry  of  appearance  in 
opposition  to  discharge  and  pending  the  ten  days  for  the  filing  of  specifica- 
tions thereon,  might  be  examined,  for  he  is  required  to  attend  the  hearing 
upon  his  petition  for  discharge  for  precisely  such  purpose.  A  false  oath 
then  committed  doubtless  could  be  incorporated  in  the  specifications  sub- 
sequently filed. 

§  2528.  "False  Oaths"  in  Poverty  Affidavits.— Probably  the  false 
oath  meant  by  the  act  would  only  cover  cases  in  their  nature  such  as  'to 
affect  creditors'  rights ;  therefore,  mere  false  poverty  affidavits  to  avoid 
prepayment  of  filing  fees  would  probably  not  be  a  bar  to  discharge.  One 
of  the  cases  on  the  subject,  however,  avoided  the  point  by  holding  the  pov- 
erty affidavit  was  not  false  even  though  the  bankrupt  might  have  paid  the 
filing  fees  out  of  his  exempt  property  or  have  borrowed  them  from 
lriends.^22 

In  another  case,  however,  the  bankrupt  actually  had  $37.50  in  cash, 
nevertheless  he  not  only  made  a  poverty  affidavit  but  also  alleged  in  his 
schedules  he  had  "no  cash,"  for  which  false  oath  discharge  was  refused. ^^s 

§  2529.    "False  Oath"  in  Hearing  upon  Petition  for  Adjudication. 

— A  "false  oath"  may  be  committed  by  false  swearing  upon  the  hearing 
on  the  petition  for  adjudication  of  bankruptcy. ^-^ 

But  the  verification  of  an  vmtrue  answer  was  held  not  to  constitute  a 
false  oath  where  the  answer  was  not  filed  in  time  nor  considered. ^--^ 

§  2530.  If  Not  in,  nor  in  Relation  to  His  Own  Bankruptcy  Pro- 
ceedings,  No  Bar. — The  commission  of  a  false  oath  or  account  in  an- 

119.  Tn  re  Luftig,  15  A.  B.  R.  773  (D.  C.  :\Iass.). 

120.  In  re  Young.  15  A.  B.  R.  477,  140  Fed.  728  (D.  C.  N.  Car.). 

121.  Edelstein  r.  U.  S.,  17  A.  B.  R.  656  (C.  C.  A.  Minn.). 

122.  Sellers  v.  Bell,  2  A.  B.  R.  529,  94  Fed.  801  (C.  C.  A.  Ala.). 

123.  In  re  Roy,  3  A.  B.  R.  37,  96  Fed.  400  (D.  C.  Vt.). 

124.  Instance,  In  re  Luftig,  15  A.  B.  R.  778  (D.  C.  Mass.). 

125.  In  re  Young,  15  A.  B.  R.  477,  140  Fed.  728  (D.  C.  N.  C). 


§   2531  "       OPPOSITIOX  TO  DISCHARGE.  1525 

other  court,   or   in   relation   to   another's   bankruptcy,   is   not   sufficient  to 
bar  discharge. 

Thus,  where,  upon  objections  to  discharge,  the  stenographer's  notes  of 
the  bankrupt's  former  testimony  at  a  creditors'  meeting  in  the  common 
pleas  court  in  1889  under  the  Pennsylvania  Insolvency  Act  were  intro- 
duced by  stipulation  between  counsel,  "to  have  the  same  force  and  effect 
as  if  the  said  testimony  was  originally  taken  before  the  referee  in  this 
proceeding,"  the  court  held,  that  statements  contained  in  such  notes  could 
not  be  used  to  base  a  charge  of  false  oath  under  §  29,  because  the  bank- 
lupt  took  no  oath  before  the  referee  that  his  former  testimony  was  true, 
and  he  cannot  be  bound  by  his  counsel's  stipulation  so  far  as  to  base  a 
prosecution  for  perjury  against  him.^^s  Likewise,  a  false  oath  made  by 
the  bankrupt  in  another  bankruptcy  proceedings  than  his  own,  is  not 
ground  for  refusing  discharge.^-' 

§  2531.  Whether  False  Oath  in  Own  Previous  Bankruptcy  Pro- 
ceeding's, Bar. — It  is  a  question  whether  the  bankrupt's  false  oath  in  a 
former  bankruptcy  proceedings  of  his  own,  is  sufficient.  One  case  sug- 
gests that  perhaps  it  must  have  been  committed  in  the  very  bankruptcy 
proceedings  then  pending,  and  that  a  false  oath  in  a  former  proceedings 
vrill  not  bar. 

Compare,  quaere,  obiter,  In  re  Feigenbaum,  9  A.  B.  R.  597,  121  Fed.  69  <C. 
C.  A.  N.  Y.) :  "We  have  proceeded  upon  the  assumption  that  in  the  present  pro- 
ceeding the  creditors  can  avail  themselves  of  the  same  objections  interposed 
in  the  former  proceeding  and  sustained  there.  If  for  technical  reasons  or  other- 
wise they  are  prevented  from  doing  this,  the  iniquity  of  this  attempt  to  pro- 
cure a  discharge  is  still  more  apparent.  It  is  the  contention  of  the  bankrupt's 
counsel  that  this  is  an  entirely  new  and  distinct  proceeding  and  in  this  view  he 
is  undoubtedly  correct. 

"Can  the  misconduct  of  the  bankrupt  in  the  former  proceeding  be  imported 
into  this  proceeding?  Suppose  the  creditors  should  again  interpose  the  (ob- 
jection that  the  bankrupt  has  'knowingly  and  fraudulently  concealed  while  a 
bankrupt  *  *  *  from  his  trustee  properly  belonging  to  his  estate,'  caji  they 
prove  the  allegation  by  showing  that  he  has  been  guilty  of  this  misconduct 
in  some  former  bankruptcy?  Does  not  the  statute  refer  to  the  pending  pro- 
ceeding and  the  trustee  then  in  esse?  If  so,  it  will  be  at  once  apparent  that  the 
creditors  may,  in  many  instances,  be  remediless  and  the  second  petition  may  be 
used  to  consummate  the  most  glaring  frauds." 

However,  the  wording  of  the  statute  does  not  require  the  construction 
that  the  false  oath  is  only  available  as  a  bar  when  made  in  the  same  pro- 
ceedings. It  expressly  says  "in  or  in  relation  to  any  proceedings  in  bank- 
ruptcy." Moreover,  such  construction  might  prevent  a  former  refusal 
of  discharge  on  the  ground  of  a  false  oath  then  committed,  being  urged 
by  the  same  creditor  to  bar  his  discharge  now.^^'^ 

126.  In  re  Goldsmith,  4  A.  B.  R.  234,  101  Fed.  570  (D.  C.  Penn.). 

127.  In  re  Blalock,  9  A.  B.  R.  266,  118  Fed.  679   (D.  C.  S.  C). 

128.  Compare  discussion,  ante,  division  3,  "Dismissal  of  Petition  for  Dis- 
charge, Second  Petitions  for  Discharge  and  Res  Adjudicata,"  §§  2480,  2571. 


1526  REMINGTON  ON  BANKRUPTCY.  8  2535 

§  2532.  False  Oath  in  Bankruptcy  Proceedings  under  Law  of 
1867  Not  Sufficient. — The  commission  of  a  false  oath  under  the  law 
of  1867,  however,  though  in  his  own  bankruptcy,  would  not  be  a  bar 
under  the  present  law.^-^ 

§  2533.  Must  Have  Been  Material. — The  false  oath  or  account  must 
have  been  material.  Mere  false  swearing,  unless  concerning  matters  that 
would  naturally  be  material  to  the  discovery  of  assets,  the  history  of  the 
bankrupt's  business  doings  and  relations,  the  existence  and  disposition 
of  his  property  and  debts,  etc.,  would  not  be  sufficient  to  bar  discharge. ^^^ 

§  2534.  Material  Though  Subject  of  Little  Value,  or  Exempt,  or 
Not  Recoverable. — The  fact  that  the  things  the  bankrupt  swears  falsely 
about  are  of  little  value,  or  exempt  or  not  recoverable  by  the  trustee,  etc., 
does  not  deprive  the  oath  of  its  materiality.  The  creditors  are  entitled 
to  know  the  facts,  whether  of  advantage  to  them  or  not.  It  is  material 
if  it  concerns  the  acts,  conduct  or  property  of  the  bankrupt  in  his  business 
relations. 

§  2S3S.  False  Oath  Must  Be  "Knowingly  and  Fraudulently" 
Made. — The  false  oath  or  account  must  have  been  made  "knowingly  and 
fraudulently. "131 

In  re  Eaton,  6  A.  B.  R.  534,  110  Fed.  731  (D.  C.  N.  Y.) :  "Assuming  that  all 
the  testimonj'  ofifered  by  the  objecting  creditor  is  competent,  he  has  failed  to 
establish  the  essential  ingredients  of  the  offense,  namely,  that  the  omission  was 
made  knowingly  and  fraudulently." 

"Fraudulently"  in  this  connection  implies  not  only  willful  intent,  but 
also  materiality.  The  oath  must  not  only  be  known  to  be  untrue  and  in- 
tended to  deceive,  but  also  must  have  been  intended  to  mislead  as  to  some 

129.  In  re  Herrman,  4  A.  B.  R.  136,  102  Fed.  753  (D.  C.  N.  Y.). 

130.  U.  S.  V.  Wechsler,  16  A.  B.  R.  5  (D.  C.  N.  Y.,  reversed,  on  other  grounds, 
sub  nom.  Wechsler  v.  U.  S.,  19  A.  B.  R.  1,  C.  C.  AJ ;  Bauman  v.  Feist,  5  A.  B. 
R.  703,  107  Fed.  83  (C.  C.  A.  Iowa);  In  re  Troeder,  17  A.  B.  R.  731,  150  Fed. 
710  (C.  C.  A.  Mass.). 

131.  Foreigner's  lack  of  acquaintance  with  English  language  to  be  taken  into 
account:  The  fact  that  the  bankrupt  is  a  foreigner,  not  well  acquainted  with  the 
English  language,  may  be  taken  into  account.  U.  S.  z:  Wechsler,  16  A.  B.  R. 
17  (D.  C.  N.  Y.,  reversed,  on  other  grounds,  sub  nom.  Wechsler  z/  U  S.  19  \ 
B.  R.  1,  C.  C.  A.). 

Kentucky  National  Bank  of  Louisville  v.  Carley,  12  A.  B.  R  119  (C  C  \. 
N.  J.);  In  re  Patterson,  10  A.  B.  R.  371,  121  Fed.  921  (D.  C  N  Y  )•  In  re  Beebe" 
8  A.  B.  R.  597,  116  Fed.  48  (D.  C.  Penn.) ;  In  re  Blalock,  9  A  B  r'266  118  Fed 
679  (D.  C.  S.  C);  In  re  Peck,  9  A.  B.  R.  747,  120  Fed.  972  (D  C  Conn)-  In  r- 
Bryant,  5.  A.  B.  R.  114,  104  Fed.  789  (D.  C.  Tenn.) :  "Not  knowingly  of  fraudu- 
lently." In  re  Crenshaw,  2  A.  B.  R.  623,  95  Fed.  632  (D.  C.  Ala)-  In  re  Hirsch 
3  A.  B.  R.  344,  96  Fed.  468  (D/C.  N.  Y.);  In  re  Freund,  3  A.  B.  R  418  98  Fed' 
81  (D.  C.  N.  Y.);  In  re  Osborne,  8  A.  B.  R.  165,  115  Fed.  1  (C  C  a'  Mass  )• 
Smith  V.  Keegan,  7  A.  B.  R.  4,  111  Fed.  157  (C.  C.  A.  Mass.) ;  In  re  Troeder  17 
A.  B.  R.  731,  150  Fed.  710  (C.  C.  A.  Mass.).  iroeaer,  i. 


§    2538  OPPOSITION   TO  DISCHARGE.  1527 

fact  material  for  creditors  to  know.  The  word  "knowingly"  however, 
would  seem  superfluous  since  "false"  itself  implies  knowledge  of  the 
untruthfulness  of  the  statement,  a  mistaken  oath  not  being  strictly  a 
"false"  oath. 

§  2536.   Advice  of  Counsel  Tends  to  Negative  Fraudulent  Intent. 

• — Advice  of  counsel  tends  to  negative  fraudulent  intent. i'^- 

§  2537.    Fraudulent  Intent  Not  Necessarily  Negatived  by  Fact 

That  Property  Not  Recoverable. — Fraudulent  intent  is  not  necessarily 
negatived  by  the  fact  that  the  property  involved  did  not  belong  to  creditors, 
nor  that  it  could  not  be  recovered  for  their  benefit. 

As  that  its  transfer  could  not,  for  lapse  of  time,  be  now  questioned. 

In  re  Conroy,  14  A.  B.  R.  2.51,  134  Fed.  764  (D.  C.  Penn.) :  "Whether  this 
Cliflford  street  property  can  now  be  administered  by  the  bankrupt's  estate  is  not 
the  test  as  to  the  materiality  of  an  inquiry  into  its  ownership  by  creditors.  The 
ownership  of  the  property  was  a  proper,  legitimate  and  material  matter  of  in- 
quiry in  this  bankruptcy  proceeding.  If  the  property  belonged  to  Conroy  at 
this  time,  the  creditors  were  entitled  to  that  information;  and  the  original 
ownership  of  the  property,  and  the  circumstances  under  which  it  passed  out  of 
his  possession  were  such  that  they  were  entitled  to  know  the  exact  facts  as  to 
whether  or  not  he  was  originally  the  owner,  and  when  and  how  and  under  what 
circumstances  it  became  the  property  of  his  wife;  and,  in  this  inquiry,  if  he 
fraudulently  and  knowingly  made  a  false  oath  in  regard  to  the  ownership  of 
the  property  at  any  time,  he  committed  an  ofifense  punishable  by  imprisonment, 
under  the  Act,  and  therefore  sufificient  to  prevent  a  discharge.  In  re  Gaylord, 
7  Am.  B.  R.  1,  112  Fed.  668,  50  C.  C.  \.  415." 

§  2538.  Nor  That  Its  Value  Unascertained. — Nor  is  fraudulent  in- 
tent negatived  by  the  fact  that  the  property  involved  was  of  unascertained 
value.  ^2  2 

In  re  Becker,  5  A.  B.  R.  441,  106  Fed.  54  (D.  C.  N.  Y.):  "His  schedules  show 
no  assets  of  any  kind.  His  interest  in  these  policies  was  the  only  property  he 
owned.  If  he  outlived  the  tontine  period  of  20  years  the  surrender  value  was 
due  to  him  and  not  to  his  wife.  Upon  two  of  the  policies  he  could  realize  in 
two  and  three  years  respectively.  To  find  that  he  did  not  know  of  the  exist- 
ence of  this  interest  is  to  assume  that  he  was  deficient  in  the  most  rudimentary 
mental  processes.  The  fact  that  the  amount  was  not  then  ascertained  is  imma- 
terial, as  it  was  his  duty  to  schedule  all  his  propert3\  Bankr.  Act,  §  7  (a)  (8). 
That  he  failed  to  report  these  policies  is  conceded,  that  he  did  this  knowingly 
cannot  be  successfully  disputed  and  that  he  has  since  resisted  the  trustee  in  his 
efforts  to  realize  upon  the  policies  is  established  beyond  question.  The  inev- 
itable conclusion  would  seem  to  follow  that  the  concealment  was  with  the  intent 
to  prevent  the  property  from  reaching  his  creditors.  The  omission  knowingly 
of  property  from  the  schedules  and  the  verification  thereof  constitutes"  a  false 
oath  within  the  meaning  of  *  29b  (2)  of  the  act." 

132.  See  similar  proposition  relative  to  "Concealment  of  Assets  as  Bar  to  Dis- 
charge," ante,  §  2491.  and  cases  cited.  In  re  Blalock,  9  A.  B.  R.  266,  118  Fed. 
679  (D.  C.  S.  C);  In  re  Bryant,  5  A.  B.  R.  114,  104  Fed.  789  (D.  C.  Tenn.).  Com- 
pare, as  to  scope  of  advice,  McNiel  v.  U.  S.,  18  A.  B.  R.  21  (C.  C.  A.  Tex.). 

133.  Compare,  analogously  (concealment  of  assets),  In  re  Wood,  3  A.  B.  R. 
572,  98  Fed.  972  (D.  C.  N.  Y.). 


1528  REMINGTON  ON  BANKRUPTCY.  §  2541 

§  2539.    Nor  That  It  Might  Have  Been  Claimed  Exempt.— Nor" 

is    fraudulent    intent    necessarily    negatived    by  the  fact  that  the  property 
involved  would  have  been  exempt  anyway.  ^>^^ 

But  that  the  property  involved  could  not  be  recovered  for  creditors,  or 
might  have  been  claimed  as  exempt  (if  such  rights  were  known  to  the 
bankrupt),  or  was  of  little  value,  is  entitled  to  weight  in  determining 
whether  the  false  oath  was  with  fraudulent  intent. ^-"-^ 

§  2540.  False  Testimony  on  "General  Examination,"  "False 
Oath." — False  testimony  of  the  bankrupt  taken  on  his  general  examina- 
tion constitutes  a  "false  oath"  and  may  be  proved  against  him  in  bar 
of  his  discharge  ;^3o  although  the  examination  itself  may  not  be  introduced 
against  him  in  any  criminal  prosecution.  ^^^ 

But  false  testimony  of  the  bankrupt  before  a  state  court,  introduced  in 
bankruptcy  proceedings  under  stipulation  of  counsel  that  it  should  be 
considered  to  be  his  testimony,  but  not  sworn  to  by  the  bankrupt  in  the 
bankruptcy  proceedings,  is  not  a  false  oath  barring  discharge. ^^^ 

§  2541.  Swearing  to  Schedules  Containing  Misstatements  or 
Omissions,  "False  Oath." — A  "false  oath"  may  be  perpetrated  by  mak- 
ing oath  to  schedufes  from  which  material  omissions  or  misstatements 
have  been  made,  knowingly  and  fraudulently. ^^^ 

134.  In  re  Royal,  7  A.  B.  R.  106,  112  Fed.  135  (D.  C.  N.  Car.).  Compare, 
analogously  as  to  concealment  of  assets,  ante,  §  2493. 

135.  In  re  Todd,  7  A.  B.  R.  770,  113  Fed.  315  (D.  C.  Vt.) ;  In  re  Hirscli,  3  A. 
B.  R.  344,  96  Fed.  468   (D.  C.  N.  Y.). 

136.  Wechsler  v.  U.  S.,  19  A.  B.  R.  1  (C.  C.  A.  N.  Y.,  affirming,  on  this  point, 
though  reversing  on  other,  U.  S.  v.  Wechsler,  16  A.  B.  R.  l) ;  U.  S.  v.  Wechsler, 
16  A.  B.  R.  1  (b.  C.  N.  Y.,  reversed,  on  other  grounds,  sub  nom.  Wechsler  v. 
U.  S.,  19  A.  B.  R.  1,  C.  C.  A.). 

Instances:  (As  to  doing  business  in  wife's  name),  In  re  Lowenstein,  2  A.  B. 
R.  193,  106  Fed.  51  (Ref.  N.  Y.) ;  held  insufficient  to  prove  "false  oath,"  Bauman 
V.  Feist,  5  A.  B.  R.  703,  107  Fed.  83  (C.  C.  A.  Iowa);  instance,  held  insufficient. 
In  re  Cohen,  18  A.  B.  R.  84  (D.  C.  N.  Y.). 

137.  In  re  Dow,  5  A.  B.  R.  400  (D.  C.  Iowa);  inferentially,  and  obiter.  Ban- 
man  z'.  Feist,  5  A.  B.  R.  703,  107_  Fed.  83  (C.  C.  A.  Iowa).  Also  see,  under  gen- 
eral subject  of  "Bankrupt's  Testimony,"  ante,  §  1556,  et  seq. 

138.  In  re  Goldsmith,  4  A.  B.  R.  234,  101  Fed.  570  (D.  C.  Pa.). 

139.  The  following  are  some  instances  of  omissions  and  misstatements  in 
schedules  where  the  proof  has  been  held  sufficient  to  constitute  a  "false  oath" 
barring  discharge: 

1.  Interest  in  land  not  scheduled,  under  the  excuse  that  no  real  interest  was 
conveyed,  although  the  bankrupt  had  acted  and  received  the  benefits  like  a  real 
owner  and  had  even  succeeded  in  borrowing  money  on  it  and  had  warranted 
title  thereto  in  so  doing.  In  re  Gailey,  11  A.  B.  R.  539,  127  Fed.  538  (C.  C.  A. 
Ills.):  "A  voluntary  bankrupt  is  required  by  §  7a  (8)  to  prepare,  make  oath  to, 
and  file  with  his  petition  'a  schedule  of  his  property,  showing  the  amount  and 
kind  ofr  property,  the  location  thereof,  its  money  value  in  detail,  and  a  list  of 
his  creditors,  showing,  their  residences,  if  known,  if  unknown,  that  fact  to  be 
stated,  the  amounts  due  each  of  them,  the  consideration  thereof,  the  security 
held  by  them,  if  any.'  The  plain  purpose  of  the  law  is  that  one  seeking  the 
benefit  of  a  discharge  under  the  act  shall  turn  over  to  his  creditors  all  his 
property  of  every  kind  and  nature,  except  such  as  is  exempt  by  law.  This  is 
the  condition  of  a  discharge  from  debt.  The  bankrupt  must  also  give  a  sworn 
list  of  creditors,  with  the  nature  and  amount  of  the  debt  due  each,  and  the 
particulars  of  any  security  held  by  them.  The  form  of  the  schedules  of  property 
prepared  by  the  Supreme  Court,  and  to  be  annexed  to  the  petition,  covers  prop- 


§    2541  OPPOSITIOX  TO  DISCHARGE.  1529 

In  re  Eaton,  6  A.  B.  R.  531,  110  Fed.  731  (D.  C.  N.  Y.) :  "There  can  be  no 
doubt  that  the  verification  of  schedules  from  which  valuable  property  has  been 

erty  in  reversion,  remainder  or  expectancy,  including  property  held  in  trust  for 
the  debtor,  or  subject  to  any  power  or  right  to  dispose  of  or  to  charge  includ- 
ing a  particular  statement  of  property  which  had  been  conveyed  for  the  benefit 
of  creditors.  The  court,  supplementing  the  provisions  of  the  act,  has  been  care- 
ful to  require  that  every  interest  in  land  held  bj^  the  debtor  and  every  security 
held  by  the  creditor  shall  be  stated,  to  the  end  that  the  entire  property  of  the 
debtor,  save  such  as  is  exempt  by  law,  shall  be  subjected  to  the  payment  of 
debts;  and  that  the  status  of  each  creditor  with  respect  to  his  claim  shall  be 
exhibited,  that  there  may  be  an  equal  and  just  disposition  of  the  estate.  These 
provisions  are  not  merely  formal.  They  are  of  the  essence  of  the  law,  in  pre- 
vention of  fraud,  and  in  aid  of  equitable  division  of  the  estate.  The  making 
of  a  false  oath  or  account  in,  or  in  relation  to  any  proceeding  in,  bankruptcy,  is 
punishable  b}'  imprisonment,  and  is  sufficient  cause  for  the  refusal  of  discharge 
from  the  indebtedness.  It  was  well  observed  by  Brown,  district  judge,  In  '"e 
Baudouine  (D.  C),  3  Am.  B.  R.  55,  90  Fed.  536,  539,  'that  a  discharge  in  bank- 
ruptcy upon  any  other  condition  than  the  complete  appropriation  of  every 
known  asset  legally  available  to  creditors  would  be  not  only  a  glaring  wrong 
to  creditors,  but  contrary  to  every  conception  of  a  just  system  of  bankruptcy.'  '"' 

2.  Schedules  of  assets  as  to  "Cash  on  hand"  alleging  "None"  the  bankrupt 
actually  having  $37.50  cash,  In  re  Roy,  3  A.  B.  R.  37,  96  Fed.  400  (D.  C.  Vt.). 

3.  Omitting  moneys  in  bank  from  schedules,  In  re  Otto,  8  A.  B.  R.  753,  115 
Fed.  860  (Ref.  N.  J.,  affirmed  in  8  A.  B.  R.  305);  In  re  Royal,  7  A.  B.  R.  106, 
112  Fed.  135  (D.  C.  N.  Car.).  Although  claimable  as  exempt,  In  re  Royal,  7 
A.  B.  R.  106,  112  Fed.  135  (D.  C.  N.  Car.). 

4.  Omitting  payments  to  attorneys.  In  re  Lewin,  4  A.  B.  R.  636,  103  Fed. 
852  (D.  C.  Vt.). 

p.  Omitting  devise  from  grandfather.  In  re  Breiner,  11  A.  B.  R.  684,  129  Fed. 
155   (D.   C.  Iowa). 

6.  Omitting  property  fraudulently  conveyed  by  way  of  .voluntary  gift  to  wife 
more  than  four  months  before  bankruptcy.  In  re  Toothaker  Bros.,  12  A.  B.  R. 
99,  128  Fed.  187  (D.  C.  Conn.);  In  re  Gammon,  6  A.  B.  R.  482,  109  Fed.  312 
(D.   C.   Iowa). 

7.  Unexplained  shrinkage  of  assets:  Debts  to  relatives  omitted  from  finan- 
cial statements  to  mercantile  agencies:  Large  purchases  but  nothing  paid 
thereon.  Illiterate  bankrupt  swearing  in  his  schedules  that  he  has  no  property 
except  such  as  is  exempt,  whereas  comparison  of  purchases  and  sales  and 
moneys  paid  on  purchases  demonstrates  presence  of  large  assets:  shrinkage  un- 
satisfactorily explained:  debts  to  relatives  now  alleged  not  shown  in  former 
financial  statements  to  mercantile  agency:  chattel  mortgage  to  raise  money  to 
pay  creditors,  but  creditors  not  paid.  In  re  Grossman,  6  A.  B.  R.  510,  111  Fed. 
507  (D.  C.  Mich.). 

8.  Swearing  "None"  as  to  "Stock  in  Incorporated  Companies"  but  neverthe- 
less claiming  5  shares  as  exempt,  and  in  reality  having  10  shares.  In  re  Semmel. 
9  A.  B.  R.  351,  118  Fed.  487   (D.  C.  Pa.). 

9.  Swearing  he  does  not  know  whereabouts  of  books  of  account  when  had 
previously  to  passage  of  the  Bankruptcy  Act,  sent  the  books  to  a  creditor  with 
declaration  he  would  swear  he  did  not  know  their  whereabouts  if  examined  i.T 
supplementary  proceedings.  In  re  Kamsler,  2  N.  B.  N.  &  R.  97  (Ref.  N.  Y.). 

10.  Omitting  tontine  policy,  payable  to  bankrupt  if  he  survive  a  certain  period, 
although  amount  thereof  not  exactly  ascertainable.  In  re  Becker,  5  A  B.  R 
438,  106  Fed.  54  (D.  C.  N.  Y.). 

11.  Omitting  own  business  although  ostensibly  wife's  business.  In  re  Lowen- 
stein,  2  A.  B.  R.  193,  106  Fed.  51  (Ref.  N.  Y.). 

12.  Omitting  large  sum  of  money  received  a  few  days  before  bankruptcj^  and 
alleged  to  have  been  stolen  from  drawer  in  roll-top  desk.  Barton  Bros,  v  Pro- 
duce Co.,  14  A.  B.  R.  502,  136  Fed.  355   (C.  C.  A.  Ark.). 

The  following  are  instances  where  the  facts  have  been  held  insufficient  to  prove 
a  "false  oath"  by  omissions  from  schedules: 

1.  Small  debt  of  $7.76  owed  to  bankrupt  omitted  from  schedules  but  no 
fraudulent  intent  proved,  In  re  Miner,  8  A.  B.  R.  248,  114  Fed.  988  (D.  C.  Ore.). 

2.  Material  omissions   but  not  fraudulently  made,   In   re   Eaton,   6  A.    B.    R. 


1530  REMINGTON  ON  BANKRUPTCY.  §  2541 

knowingly  omitted  constitutes  a  false  oath  under  §  29b  (2)  of  the  act,  but  the 
omission  must  have  been  made  with  fraudiilent  intent." 

In  re  Becker,  5  A.  B.  R.  441,  106  Fed.  54  (D.  C.  N.  Y.) :  "The  omission 
knowingly  of  property  from  the  schedules  and  the  verification  thereof  consti- 
tutes a  false  oath  within  the  meaning  of  §  29b  (2)  of  the  act." 

Obiter,  In  re  Wolfensohn,  5  A.  B.  R.  60  (Special  Master  N.  Y.) :  "If  the 
bankrupt  willfully  omitted  from  his  schedules  any  property  which  he  should 
have  disclosed,  he  certainly  makes  a  false  oath." 

But,  of  course,  mere  failure  to  schedule  assets  is  not  per  se  a  fraudulent 
and  knowing  false  oath. 

534,  no  Fed.  731  (D.  C.  N.  Y.) ;  In  re  Schofield,  17  A.  B.  R.  916,  15  A.  B.  R. 
824  (D.  C.  Pa.).  .    • 

3.  Omitting  from  schedules  corporate  stock  held  in  wife's  name  but  clamied 
to  be  on  secret  trust  for  bankrupt,  but  evidence  not  conclusive.  Fellow  v.  Freu- 
denthal,  4  A.  B.  R.  490,  102  Fed.  731  (C.  C.  A.  Ills.). 

4  Omission  of  property  alleged  to  have  been  fraudulently  levied  on  two  years 
before  passage  of  the  Bankruptcy  Act,  In  re  Webb,  3  A.  B.  R.  386,  98  Fed.  404 
(D.  C.  N.  Y.). 

5.  Omission  of  property  alleged  to  have  been  fraudulently  conveyed  before 
passage  of  Bankruptcy  Act,  no  secret  trust  being  shown.  In  re  Dauchy,  11  A. 
B.  R.  511,  130  Fed.  532  (C.  C.  A.  N.  Y.). 

6.  Policy  of  life  insurance  on  bankrupt's  life  but  payable  to  another,  he  hav- 
ing no  interest  therein.  In  re  Rauchenplat,  9  A.  B.  R.  764,  1  P.  R.  471  (D.  C. 
Porto  Rico). 

7  Policy  of  life  insurance  on  which  only  one  premium  paid,  omitted  from 
schedule,  In  re  Miner,  8  A.  B.  R.  248.  114  Fed.  988  (D.  C.  Ore.). 

8.  Failure  to  specifically  enumerate  exempt  property,  simply  scheduling  't 
as  "exempt  wearing  apparel,"  without  giving  items;  a  watch  even  being  held 
properly  exempt,  Sellers  v.  Bell,  2  A.  B.  R.  529,  94  Fed.  801   (C.  C.  A.  Ala.). 

9.  Understatements  and  overstatements  of  debts  owing  to  bankrupt  about 
counterbalancing,  negative  fraudulent  intent,  In  re  Miner.  8  A.  B.  R.  248,  114 
Fed.  988  (D.  C.  Ore.). 

10.  Land  contract,  on  which  only  about  the  interest  had  been  paid,  forfeit- 
able for  such  default  at  option  of  seller,  omitted  from  schedule,  In  re  Miner, 
8  A.  B.  R.  248,  114  Fed.  988  (D.  C.  Ore.). 

11.  Swearing  "None"  as  to  "Stock  in  Incorporated  Companies"  but  neverthe- 
less in  Schedule  "B  (5),"  claiming  same  as  exempt,  not  false  oath  as  to  shares 
in  Schedule  "B  (5),"  although  false  oath  as  to  other  shares  nowhere  reported. 
In  re  Semmel,  9  A.  B.  R.  351,  118  Fed.  487   (D.  C.  Pa._). 

12.  Omission  of  any  claim  for  wages  for  bankrupt's  services  on  his  father's 
farm  where  bankrupt  was  his  father's  sole  heir  and  no  agreement  for  wages 
existed,  In  re  Howden,  7  A.  B.  R.  191,  111  Fed.  723  (.D.  C.  N.  Y.). 

13.  Mere  failure  to  schedule  a  debt  and  certain  real  estate  of  uncertain  value 
is  not  of  itself  evidence  of  fraudulent  intent.  In  re  Neely,  12  A.  B.  R.  407,  134 
Fed.   667    (Ref.   N.   Y.). 

14.  Equitv  in  lumber  sold  not  scheduled,  In  re  Hamilton,  13  A.  B.  R.  333, 
133  Fed.  823   (D.  C.  N.  Y.). 

15.  Oath  to  schedules  where  watch  and  chain  worn  openly  on  person  were 
omitted  on  advice  of  counsel,  In  re  Bryant,  5  A.  B.  R.  114,  104  Fed.  789  (D.  C. 
Tenn.). 

16.  Oath  to  schedules  omitting  partnership  interest  given  by  father-in-law 
to  wife  of  bankrupt  but  managed  by  bankrupt,  In  re  Bryant,  5  A.  B.  R.  114, 
104    Fed.   789    (D.    C.    Tenn.). 

17.  Oath  to  schedules  omitting  desk  given  away  before  passage  of  Bankrupt 
Act,  In  re  Bryant,  5  A.  B.  R.  114,  104  Fed.  789  (D.  C  Tenn.). 

18.  Oath  to  schedules  omitting  voluntary  conveyance  to  mother  of  land  on 
which  she  held  a  large  mortgage,  the  conveyance  being  made  on  advice  of 
counsel,  In  re  Schreck,  1  A.  B.  R.  366  (Ref.  N.  Y.). 

19.  Oath  to  schedules  omitting  voluntary  conveyance  to  wife  four  months 
and  one  week  before  bankruptcy,  no  secret  trust  being  shown  to  continue.  In 
Te  Crenshaw,  2  A.  B.   R.  623,  95  Fed.  632   (D.  C.  Ala.). 

20.  Oath  to  schedules  omitting  lease  of  house  which  bankrupt  is  occupying 


§    2542  OPPOSITION   TO  DISCHARGE.  1531 

§  2542.   Omitting  Creditors  from  Schedules,  When  False  Oath. — 

A  false  oath  may  be  perpetrated  by  swearing  to  schedules  in  which  false 
statements  of  liabilities  have  been  purposely  made.^^*^ 

Thus,  a  "fraudulently  and  knowingly"  made  "false  oath"  may  be  per- 
petrated by  a  bankrupt  swearing  in  his  schedules  to  fictitious  debts  al- 
leged to  be  owing  by  him  to  relatives  or  friends. ^^^ 

But  where  no  advantage  could  possibly  accrue  to  the  bankrupt,  a  fraud- 
ulent intent  in  omitting  creditors  or  misstating  liabilities  will  be  nega- 
tived.i-^2 

Compare,  In  re  Miner,  9.  A.  B.  R.  102,  117  Fed.  953  (D.  C.  Ore.);  S.  C,  8 
A.  B.  R.  248,  114  Fed.  998  (D.  C.  Ore.):  "There  could  be  no  adequate  motive 
in  concealing-  obligations  which  the  bankrupt  owed.  This  could  not  smooth 
his  way  through  bankruptcy,  and  would,  if  the  deception  was  successful,  pre- 
vent his  discharge  as  to  the  omitted  creditors.  Moreover,  a  debt,  however 
scheduled,  would  necessarily  be  proved  at  the  amount  actually  due.  No  pos- 
sible advantage  could  be  gained  by  misstating  the  amount  of  the  debt  listed, 
and  there  is  nothing  in  the  facts  stated  to  warrant  an  inference  of  bad  faith 
against  the  bankrupt." 

Compare,  In  re  Crenshaw,  2  A.  B.  R.  623,  95  Fed.  632  (D.  C.  Ala.):  "The 
oinission  from  the  schedule  of  one  of  the  notes  due  Findlay,  Dicks  &  Co.  was 
doubtless  an  oversight  or  mistake.  From  the  facts  and  circumstances,  I  can 
see  no  motive  for  omitting  it  and  no  benefit  to  be  derived  by  the  bankrupt  from 
such  omission." 

as  tenant  where  the  lease  is  only  for  a  year  and  is  not  shown  to  have  any  value 
bej'ond  its  rent,  could  not  be  held  to  be  intentional  nor  fraudulent  false  oatlf. 
In  re  Hirsch,  3  A.  B.  R.  344  (D.  C.  N.  Y.). 

21.  Denial  of  interest  in  business  alleged  to  belong  to  bankrupt's  wife  ni 
which  bankrupt  alleges  he  is  simply  an  employee  where  no  actual  interest  is 
traced  into  it.  In  re  Hirsch,  3  A.  B.  R.  344,  97  Fed.  571   (D.  C.  N.  Y.). 

22.  Attorney  at  law  failing  to  schedule  written  contracts  for  contingent  fees 
where  some  of  the  cases  are  on  the  court  calendar  and  some  are  not,  some 
are  tried  and  some  are  on  appeal  the  doubt  as  to  their  being-  assets  of  the 
estate  taking  away  any  certainty  that  they  were  omitted  "knowingly  and  fraud- 
ulently." In  re  McAdam,  3  A.  B.  R.  417,  98  Fed.  409  (D.  C.  N.  Y.). 

23.  Omitting  household  furniture  bought  for  wife  many  years  ago  and  pre- 
sumably intended  as  a  gift  to  her.  In  re  Freund,  3  A.  B.  R.  418,  98  Fed.  81  (D. 
C.  N.  Y.). 

24.  Omitting  list  of  names  said  to  belong  to  mail  order  corporation,  Veho'i 
V.  Ullman,  17  A.  B.  R.  435  (C.  C.  A.  Ills.). 

140.  In  re  Gross,  5  A.  B.  R.  271  (Ref.  N.  Y.,  affirmed  by  D.  C);  In  re  Young, 
15  A.  B.  R.  477,  140  Fed.  728  (D.  C.  N.  Car.). 

141.  But  compare,  contra,  where  omission  not  purposely  made.  In  re  Bla- 
Icck,  9  A.  B.  R.  266,  118  Fed.  679  (D.  C.  S.  C.)  :  "The  grounds  for  refusal  to 
discharge  under  the  present  Bankrupt  Law  are  limited  in  number.  They 
specify  what  shall  be  the  causes  for  such  refusal,  and  the  omission  of  creditors 
fiom  the  schedules  is  not  enumerated  as  one  of  the  grounds.  There  is  nothing- 
of  substance  in  the  specification."  In  re  Kamsler,  2  N.  B.  N.  &  R  97  (Ref 
N.   Y.). 

142.  The  following  are  further  instances  of  failure  to  prove  fraudulent  in- 
tent in  making  a  "false  oath"  by  misstatements  or  omissions  of  debts  owiu;^ 
by  the  bankrupt: 

1.  Scheduling  of  an  assigned  judgment  as  being  owed  to  the  original  judg- 
ment creditor  although  the  bankrupt  knew  of  the  assignment  is  not  sufficient 
to  bar  discharge.  Sellers  v.  Bell,  2  A.  B.  R.  529,  94  Fed.  801   (C.  C.  A.  Ala.). 

2.  Failure  to  schedule  money  borrowed  of  friend  to  pay  attorney's  fees  and 
costs  of  bankruptcy,  is  not  a  "false  oath,"  Sellers  v.  Bell.  2  A.  B.  R  529  94 
Fed.  801  (C.  C.  A.  Ala.). 


1532  REMINGTON  ON  BANKRUPTCY.  §  2545 

§  2543.  Amendment  after  Discovery  of  Omissions. — Amendment 
of  the  schedules  after  discovery  of  the  omission  is  ineffectual  to  excuse 
the  omission  where  the  original  omission  was  fraudulent  ;i-*3  but  a  prompt 
acknowledgment  of  the  omission  as  a  mistake  is  a  circumstance  tending  to 
rebut  bad  faith. ^^^ 


Destruction,  Failure  to  Keep  and  Concealment  of  Books  of  Ac- 
count AS  Bar  to  Discharge. 

§  2544.  Destruction,  Failure  to  Keep  and  Concealment  of  Books 
of  Account  as  Bar  to  Discharge. — The  bankrupt's  discharge  will  be 
barred  if,  with  intent  to  conceal  his  financial  condition,  he  has  destroyed, 
concealed  or  failed  to  keep  books  of  account  or  records  from  which  such 
condition  might  be  ascertained. ^^^ 

§  2545.    Intent  to   Conceal  Financial  Condition  Essential. — The 

bankrupt's  intent  to  conceal  his  financial  condition  thereby  must  be  shown. 

143.  In  re  Gross,  5  A.  B.  R.  271  (D.  C.  N.  Y.) ;  In  re  Breiner,  11  A.  B.  R. 
684,  129  Fed.  155  (D.  C.  Iowa);  In  re  Eaton,  6  A.  B.  R.  531,  110  Fed.  731  (D. 
C.   N.  Y.). 

144.  In  re  Eaton,  6  A.  B.  R.  531,  110  Fed.  731  (D.  C  N.  Y.). 

145.  Bahkr.  Act,  §  14  (b)  (2).  Godshalk  v.  Sterling,  12  A.  B.  R.  302,  123 
Fed.  580   (C.  C.  A.   Penn.). 

In  re  Feldstein.  6  A.  B.  R.  458  (D.  C.  N.  Y.) :  This  was  a  case  that  occurred 
before  the  amendment  of  1903,  but,  being  a  case  where  the  discharge  was  re- 
fused when  the  statute  was  much  more  liberal  towards  the  bankrupt  in  rela- 
tion to  his  keeping  of  books  than  it  is  now,  it  is  an  authority  since  the  Amend- 
ment as  well. 

Ablowich  V.  Stursburg.  5  A.  B.  R.  403,  105  Fed.  751   (C.  C  A.  N.  Y.). 

"In  Contemplation  of  Bankruptcy"  and  "with  Fraudulent"  Intent,  before  the 
Amendment  of  1903. — 1.  Before  the  amendment  of  1903,  it  must  also  have  been 
done  "in  contemplation  of  bankruptcy."  In  re  Feldstein,  8  A.  B.  R.  160,  115  Fed. 
259  (C.  C.  A.  N.  Y.);  Van  Ingen  v.  Schophcffen,  12  A.  B.  R.  24,  129  Fed.  352 
CC.  C.  A.  Mo.);  In  re  Shorer,  2  A.  B.  R.  165,  96  Fed.  90  (D.  C.  Conn.);  In  re 
H'olman,  1  A.  B.  R.  600,  92  Fed.  512  (D.  C.  Iowa);  In  re  Holtz,  1  N.  B.  N. 
204. 

2.  And  with  "fraudulent"  intent  to  conceal  his  "true"  financial  condition.  In 
re  Spear,  4  A.  B.  R.  617.  103  Fed.  779  (D.  C.  Vt.) ;  In  re  Boasberg,  1  A.  B.  R. 
353  (Special  Master  N.  Y.) ;  In  re  Polakofif,  1  A.  B.  R.  358  (Master's  Report,  af- 
firmed by  D.  C.  N.  Y.);  In  re  Feldstein,  8  A.  B.  R.  160,  115  Fed.  259  (C.  C.  A. 
N.  Y.);  In  re  Mackenzie,  12  A.  B.  R.  605,  132  Fed.  114  (D.  C.  Conn.);  In  re 
Holman,  1  A.  B.  R.  600,  92  Fed.  512  (D.  C.  Iowa);  In  re  Cohn,  1  A.  B.  R. 
655  (Ref.  Mo.);    In  re  McNamara,  2  A.  B.  R.  566  (Ref.  N.  Y.). 

3.  The  weight  of  authority  was  that  the  proof  must  show  a  contemplation 
of  bankruptcy  proceedings  being  instituted:  and  that  it  was  not  sufficient  if 
there  was  merely  proof  of  a  contemplation  of  such  condition  of  finances  as 
naturally  would  lead  to  bankruptcy.  In  re  Boasberg,  1  A.  B.  R.  353  (Special 
Master,  N.  Y.);  In  re  Polakofif,  1  A.  B.  R.  358  (Special  Master,  affirmed  by  D. 
C);    In  re  Hohnan,  1  A.  B.  R.  600,  92  Fed.  512  (D.  C.  Iowa). 

In  re  Hirsch,  2  A.  B.  R.  715,  96  Fed.  468  (D.  C.  Tenn.) :  And  that  it  should 
be  done  after  the  passage  of  the  Act  and  not  simply  during  the  pendency  of 
the  bill.     In  re  Marx,  4  A.  B.  R.  521,  102  Fed.  676  (D.  C.  Ky.). 

In  re  Morgan,  4  A.  B.  R.  402,  101  Fed.  982  (D.  C.  .Ark.) :  "An  act  in  'contem- 
plation of  bankruptcy'  must  contemplate  the  commission  of  what  is  declared 
by  the  act  to  be  an  act  of  bankruptcy,  or  an  application  of  a  bankrupt  to  be 


§    2545  OPPOSITION  TO  DISCHARGE.  1533 

Mere  failure  to  keep  books  or  to  keep  them  properly  will  not  bar  the 
discharge  unless  done  with  intent  to  conceal  his  financial  condition. ^^"^ 

In  re  Rauchenplat,  9  A.  B.  R.  766,  1  P.  R.  471  (D.  C.  Porto  Rico):  "It  is  not 
required  that  a  bankrupt's  books  shall  be  kept  in  the  most  scientific  manner, 
but  only  in  such  a  way  that  the  condition  of  his  affairs  may  be  substantially 
ascertained;  and  even  if  badly  kept,  it  is  not  ground  for  refusing  discharge, 
unless  there  was  a  fraudulent  purpose  in  so  doing  on  the  part  of  the  bankrupt." 

In  re  Allendorf,  12  A.  B.  R.  320,  129  Fed.  981  (D.  C.  Iowa):  "This  bankrupt 
did  not  fail  entirely  to  keep  books.  He  kept  a  cash  book,  showing  the  amount 
received  from  the  daily  sales  of  the  goods  and  other  sources,  and  most  of  the 
payments  for  goods,  expenses  and  other  matters;  also  a  bank  book  and  the 
original  invoices  or  bills  of  goods  purchased.  He  kept  no  day  book,  blotter  or 
ledger."  In  this  case  the  destruction  of  salesmen's  slips  on  transfer  to  the  casn 
book  of  the  items,  was  held  not  a  destruction  with  intent  to  conceal  financial 
condition. 

In  re  Brice,  4  A.  B.  R.  355,  102  Fed.  114  (D.  C.  Iowa):  "The  evidence  shows 
that  the  books  kept  did  not  contain  a  list  or  statement  of  the  debts  due  from 
the  bankrupt  and  it  is  therefore  true  that  from  the  books  the  true  financial 
condition  of  the  bankrupt  could  not  be  ascertained,  but  it  is  not  shown  that  this 
was  done  with  any  fraudulent  intent  to  conceal  his  financial  condition  *  *  *; 
and  the  same  is  true  with  respect  to  the  charge  that  two  pages  of  the  ledger 
have  been  torn  out,  thus  leaving  this  book  in  a  mutilated  condition." 

declared  a  bankrupt."  In  re  Carmichael,  2  A.  B.  R.  815,  96  Fed.  594  (D.  C. 
Iowa);  In  re  Lieber,  3  A.  B.  R.  217  (Special  Master,  Pa.);  obiter,  In  re 
Shertzer,  3  A.  B.  R.  699  (D.  C.  Pa.);  In  re  Stark,  1  A.  B.  R.  180,  96  Fed.  88 
(Ref.  N.  Y.,  since  created  district  judge).  Also  see  Van  Ingen  v.  Schophofen, 
12  A.  B.  R.  24.  129  Fed.  352  (C.  C.  A.  Mo.). 

Further  Instances  of  "Fraudulent  Intent"  and  "Contemplation  of  Bankruptcy" 
before  the  Amendment  of  1903. 

1.  Bankrupt  selling  out  business,  owing  $6,000;  then  without  paying  the  in- 
debtedness, going  into  business  in  another  place,  buying  on  credit  $6,000  worth 
of  goods  and  using  only  $500  in  cash,  his  books  failing  to  show  entries  thereof; 
then  going  into  bankruptcy.  In  re  Kenyon,  7  A.  B.  R.  257,  112  Fed.  658  (D. 
C.  Iowa). 

2.  Keeping  books  in  such  a  manner  as  to  conceal  true  financial  condition, 
etc.     In  re  Feldstein,  6  A.  B.  R.  458,  108  Fed.  794  (D.  C.  N.  Y.). 

3.  Frivolous  explanation  of  failure  to  keep  books.  In  re  Berkowitz,  4  A. 
B.  R.  37  (Special  :\Iaster,  X.  Y.). 

Instances  of  Lack  of  Contemplation  of  Bankruptcy. 

1.  Failing  to  keep  books  of  account  while  formerly  in  business  six  years 
before  the  passage  of  the  Bankruptcy  Act.  In  re  Holman,  1  A.  B.  R.  600,  92 
Fed.  512  (D.  C.  Iowa). 

2.  Failure  to  keep  books  for  a  j^ear  and  half  before  the  passage  of  the  Bank- 
ruptcy Act.     In  re  Cohn,  1  A.  B.  R.  655  (Ref.  Mo.). 

146.  Under  the  Act  of  1867,  fraudulent  intent  was  not  necessary,  to  the  bar;  the 
obligation  to  keep  proper  books  was  absolute,  hence  the  decisions  under  that 
law  are  inapplicable.  In  re  Schultz,  Jr.,  6  A.  B.  R.  91,  109  Fed.  269  (D.  C. 
N.  Y.). 

In  re  Lafleche,  6  A.  B.  R.  483,  109  Fed.  307  (D.  C.  Vt.);  In  re  Stark,  2  A. 
B.  R.  785,  96  Fed.  88  (D.  C.  N.  Y.) ;  In  re  Mackenzie,  12 -A.  B.  R.  605,  132  Fed. 
114  (D.  C.  Conn.);  In  re  Hamilton,  13  A.  B.  R.  333,  133  Fed.  823  (D.  C.  N.  Y.) ; 
In  re  Corn,  5  A.  B.  R.  478,  3  06  Fed.  143  (D.  C.  Ga.);  In  re  Boasberg,  ]  A.  B. 
R.  353  (Special  Master  N.  Y.);  In  re  Lowenstein,  2  A.  B.  R.  193,  106  Fed.  51 
(Ref.  N.  Y.);  In  re  Idzall,  2  A.  B.  R.  741,  696  Fed.  314  (D.  C.  Iowa.);  impliedly, 
In  re  Keefer,  14  A.  B.  R.  290,  135  Fed.  885  (D.  C.  N.  Y.);  compare,  on  germane 
subjects  of  concealment  of  assets  and  false  oath,  Smith  v.  Keegaii,  7  A.  B.  R. 
4,  111  Fed.  157  (C.  C.  A.  Mass.). 


1534  REMINGTON  ON  BANKRUPTCY.  §  2548 

§  2546.  Intent  Inferable  from  Circumstances. — The  intent  may  be 
inferred   from  surrounding  circumstances. i^' 

Thus,  where  the  bankrupt  is  a  man  of  business  experience  and  abso- 
lutely fails  in  every  respect  to  keep  books  of  account  or  records  from 
v/hich  his  financial  condition  might  be  ascertained,  the  presumption  arises 
that  by  such  conduct  he  intended  to  conceal  such  condition. 

§  2547.  Property  Exempt,  or  Not  Recoverable,  etc. — Not  Neces- 
sarily Negatives  Intent  to  Conceal. — Intent  to  conceal  is  not  negatived, 
necessarily,  by  the  fact  that  the  property  omitted  from  the  books  of  ac- 
count could  not  have  been  recovered  by  the  creditors  or  would  have  been 
exempt,  anyway;  but  such  fact  is  entitled  to  weight  in  determining 
whether  the  omission  was  with  fraudulent  intent. ^^^ 

§  2548.  Keeping  Books  in  Same  Defective  Manner  for  Long  Pe- 
riod Tends  to  Negative  Intent. — The  keeping  of  books  in  the  same  de- 
fective manner  for  years  tends  to  negative  fraudulent  intent;  but,  of 
course,  is  not  conclusive  rebuttal. 

Thus,  the  keeping  of  books  in  the  same  manner  for  years  before  the 
passage  of  the  act,  although  that  manner  be  inadequate  to  show  the  debtor's 
financial  condition,  tends  to  negative  intent  to  conceal  it  by  such  means. ^^^ 

But  compare,  In  re  Feldstein,  8  A.  B.  R.  160,  115  Fed.  259  (C.  C.  A.  N.  Y., 
afifirming  6  A.  B.  R.  458,  108  Fed.  794) :  "We  find  no  force  in  the  suggestion 
that  the  loans  were  made  before  the  Bankruptcy  Act  was  passed,  and  the 
failure  to  enter  them  in  the  books  or  records  of  the  business  began  then.  The 
referee  held  that  'while  he  was  solvent,  and  could  promptly  meet  all  his  obli- 
gations, and  before  the  passage  of  the  Bankruptcy  Act,  he  was  at  liberty  to 
keep  his  books  in  any  manner  he  pleased,  or  to  keep  no  books  at  all,  but  when 
he  asks  the  benefits  of  the  Bankruptcy  Act  he  is  bound  to  show  a  compliance 
with  its  provisions  regarding  his  books  as  well  as  any  other  requirement;  but 
if  he  kept  improper  or  incorrect  books  before  the  passage  of  the  Bankruptcy 
Act,  and  to  such  an  extent  as  to  make  them  improper  or  insufficient  under  the 
act,  he  should,  upon  the  passage  of  the  act,  have  altered  his  system  of  book- 
keeping so  as  to  comply  with  its  requirements,  if  he  ever  expected  to  seek  the 
benefit  of  its  provisions.'     In  this  opinion  we  concur.'' 

147.  In  re  Feldstein,  6  A.   B.   R.   458,   108   Fed.   794   (D.   C.   N.   Y.,   affirming  S 

A.  B.  R.  160,  115  Fed.  239,  C.  C.  A.). 

148.  Compare,  on  germane  subjects  of  concealment  of  assets  and  false  oath, 
ante,    §§    2493,    2534. 

In  re  Royal,  7  A.  B.  R.  106,  112  Fed.  135   (D.  C.  N.  Car.);  In  re  Todd,  7  A. 

B.  R.  770,  112  Fed.  315  (D.  C.  N.  Car.);    In  re  Conroy,  14  A.  B    R.  249,  134  Fed 
764    (D.    C.   Pa.). 

Imputing  acts  of  one  partner  in  concealment  of  books,  etc.,  to  the  other,  and 
of  agent   to  principal:    see  ante,  §§   2484,   2486. 

149.  In  re  Idzall,  2  A.  B.  R.  741,  96  Fed.  314  (D.   C.  Iowa). 

Continuing  concealment  of  books  may  be  perpetrated  by  failure  after  bank- 
ruptcy to  reveal  their  known  whereabouts  although  original  concealment  was 
perpetrated  before  the  passage  of  the  Bankrupt  Act,  In  re  Kamsler,  2  N  B 
N.  &  R.  97  (Ref.  N.  Y.).  '      ' 


§  2549  OPPOSITION  TO  discharge;.  1535 

§  2549.    No  Special  Manner    of    Keeping    Books  Requisite. — No 

special  manner  of  keeping  books  is  requisite  to  avoid  the  censure  of  the 
statute,  so  long  as  an  ordinary  person,  having  a  general  knowledge  of  ac- 
counts, can  discover  the  true  financial  condition. ^^*^ 

In  re  Rauchenplat,  9  A.  B.  R.  766,  1  P.  R.  471  (D.  C.  Porto  Rico):  "It  is  not 
required  that  a  bankrupt's  books  shall  be  kept  in  the  most  scientific  manner, 
but  only  in   such   a   way  that   the   condition   of  his   affairs   may   be   substantially 

150.  In  re  Feldstein,  6  A.  B.  R.  458,  108  Fed.  794  (D.  C.  N.  Y.,  affirmed  in  8 
A.  B.  R.  160,  115  Fed.  259).  But  compare.  In  re  Lepold,  5  A.  B.  R.  283  (Ref. 
N.  Y.). 

Under  the  Act  of  1867  the  obligation  to  keep  proper  books  was  absolute.  In  re 
Schultz,  Jr.,  6  A.  B.  R.  91,  109  Fed.  264  (D.  C.  N.  Y.). 

Instances  Held  to  Be  Such  Failure  as  to  Bar  Discharge, 

1.  Books  showing  no  indebtedness  to  relatives:  disbursements  to  them,  how- 
ever, on  the  eve  of  insolvency,  on  alleged  debts:  previous  statements  to  ob- 
tain credit  showing  no  debts  to  relatives:  bankrupt's  testimony  that  he  in- 
formed creditors  that  statement  did  not  contain  debts  to  relatives,  discredited 
as  inherently  improbable;  held,  failure  to  keep  books  proved  and  discharge 
barred,  In  re  Greenberg,  8  A.  B.  R.  94,  114  Fed.  773   (D.  C.  Conn.). 

2.  Books  showing  no  indebtedness  to  relatives,  but  large  payments  made  to 
them  on  alleged  debts,  on  the  eve  of  insolvency,  In  re  Kamsler,  2  N.  B.  N.  & 
R.  97   (Ref.  N.  Y.). 

3.  Debts  to  family  for  money  loaned  to  the  bankrupt,  scheduled  but  never 
entered  on  the  books  of  account  of  the  bankrupt  although  bankrupt  kept  book- 
keeper and  complete  set  of  books;  and  only  memoranda  of  the  debts  were  in 
two  small  memorandum  books,  kept  in  the  bankrupt's  own  custody,  concealed 
from  everj'body;  held  not  the  keeping  of  "books  of  account  or  records  which 
the  Bankrupt  Act  calls  for."  In  re  Feldstein,  8  A.  B.  R.  160,  115  Fed.  259  (C. 
C.  A.  N.  Y.,  affirming  In  re  Feldstein,  6  A.  B.  R.  458,  108  Fed.  794). 

4.  Bankrupt,  on  removing  to  another  city  leaving  his  account  books  behind 
although  taking  everything  else;  and  thereafter  keeping  simply  memoranda  on 
slips  of  paper  which  he  destroys  each  month,  bein(g  finally  closed  out  through 
the  instrumentality  of  a  friend's  levying  execution,  In  re  Baumberger,  2  N.  B. 
N.  &  R.  95  (Ref.  N.  Y.). 

5.  In  re  Leopold,  5  A.  B.  R.  279   (Ref.  N.  Y.). 

6.  Frivolous  excuse  for  failure  to  keep.  In  re  Berkowitz,  4  A.  B.  R.  37 
(Special   Master,  N.   Y.). 

7.  Where  a  bankrupt  secretly  disposed  of  a  stock  of  goods  and  concealed 
his  books  in  a  place  where  no  one  would  be  expected  to  inquire  for  them,  which 
books,  however,  showed  nothing  of  the  transaction  in  question,  but  there  was 
evidence  of  other  false  and  misleading  entries,  it  will  be  held  that  the  bankrupt 
has  "with  fraudulent  intent  concealed  his  true  financial  condition  in  contempla- 
tion of  bankruptcy"  failed  to  keep  proper  books  of  account,  In  re  Morgan,  4 
A.  B.  R.  402,  101  Fed.  982  (E).  C.  Ark.). 

8.  Keeping  bank  account  in  wife's  name,  keeping  no  books  of  account  nor 
record  of  receipts  and  disbursements,  commingling  his  own  funds  with  those 
of  his  wife  in  his  wife's  name  up  to  the  very  eve  of  bankruptcy,  with  the  pur- 
pose, as  the  bankrupt  testifies,  to  keep  anybody  from  "jumping  on  it;"  i.  e., 
his  inoney,  before  he  had  an  opportunity  to  use  it.  In  re  Bragassa,  4  A.  B. 
R.  519,  103  Fed.  936   (D.  C.  Tex.,  affirmed  in  5  A.  B.  R.  700). 

150.  Instances  Held  Not  to  Be  Such  "Failure  to  Keep"  as  Would  Bar  Dis- 
charge. 

1.  Omission  of  debt  from  ledger  where  done  to  prevent  other  creditors  from 
ascertaining  that  the  debtor  had  received  financial  assistance  but  without  any 
contemplation  of  bankruptcy  and  rather  with  expectation  of  pulling  through 
all  right,  not  sufficient  to  bar  dischage  before  amendment  of  1903,  Van  Ingen 
V.  Schophofen,  12  A.  B.  R.  24,  129  Fed.  352  (C.  C.  A.  Mo.),  in  which  case,  how- 
ever, there  was  no  showing  as  to  whether  the  bankrupt  was  at  the  time  hope- 
lessly insolvent.  Yet,  the  bankrupt  kept  the  loans  to  him  off  his  ledger  for  fear 
the  other  creditor  would  "close  him  up."     This  would  seem  to  indicate  fraudu- 


1536  REMINGTON  ON  BANKRUPTCY.  §  2550 

ascertained;    and  even  if  badly  kept,  it  is  not  ground  for  refusing  a  discharge, 
unless  there  was  a  fraudulent  purpose  in  so  doing  on  the  part  of  the  bankrupt." 

§  2550.  Concealment  or  Destruction  of  Books,  etc.,  Which  Might 
Have  Aided  in  Ascertainment  of  Financial  Condition.— Thus,  also, 
if  the  bankrupt,  fraudulently  and  knowingly,  has  concealedi"^  or  de- 
lent  intent  and  contemplation  of  financial  ruin,  at  anj-  rate.  It  would  hardily 
seem  that  actual  "bankruptcy"  must  be  proved  to  have  been  contemplated.  _ 

2.  Keeping  no  day  book,  blotter  or  ledger,  but  keeping  cash  book  showin;.^ 
daily  receipts  for  sales  and  other  sources  and  most  of  the  payments  for  goods, 
expenses  and  other  matters,  also  keeping  a  bank  book  and  original  invoices.  In 
re  Allendorf,  12  A.  B.  R.  320,  129  Fed.  98  (D.  C.  Iowa). 

3.  Insolvent  condition  not  known  to  bankrupts  until  shortly  before  bank- 
ruptcy but  system  of  bookkeeping  defective,  In  re  Mackenzie,  12  A.  B.  R.  605, 
132  Fed.  114  (D.  C.  Conn.). 

4.  Sale  of  lumber  entered  on  partnership  books  at  larger  price  than  actu- 
ally received,  intending  thereby  to  conceal  preference:  nevertheless  facts  not 
deemed  sufficient.  In  re  Hamilton,  13  A.  B.  R.  333,  133  Fed.  823  (D.  C.  N.  Y.;. 

5.  Nature  of  business  not  requiring  keeping  of  ordinary  books.  In  re  Corn, 
5  A.  B.  R.  478,  106  Fed.  143  (D.  C.  Ga.). 

6.  Out  of  business  for  nearly  three  years  before  passage  of  Bankruptcy  Act, 
In  re  Prager,  13  A.  B.  R.  527,  134  Fed.  1006  (D.  C.  W.  Va..  distinguishing  In  re 
Ablowich,  3  A.  B.  R.  586,  99  Fed.  81). 

7.  Out  of  business  for  six  years  before  Bankruptcy  Act,  failure  to  keep  books 
while  in  business,  In  re  Holman,  1  A.  B.  R.  600,  92  Fed.  512  (D.  C.  Iowa). 

8.  Failure  to-  keep  books  in  small  business,  reason  therefor  being  to  avoid 
the  necessary  work  involved  in  keeping  books  rather  than  to  conceal  true  con- 
dition, In  re  Lowenstein,  2  A.  B.  R.  193,  106  Fed.  51  (Ref.  N.  Y.). 

9.  Failure  to  show  property  bought  with  proceeds  of  surrender  of  life  in- 
surance policy  made  payable  to  wife,  such  proceeds  belonging  to  wife,  In  re 
Dews,  2  A.  B.  R.  483,  96  Fed.  181  (D.  C.  N.  Y.). 

10.  Failure  to  keep  books  where  for  at  least  three  years  prior  to  adjudication 
he  was  not  engaged  in  any  business  to  which  the  keeping  of  books  was  neces- 
sary or  proper,  Sellers  v.  Bell,  2  A.  B.  R.  529,  94  Fed.  801  (C.  C.  A.  Ala.,  dis- 
tinguishing 4  A.  B.  R.  109). 

11.  Failure  to  keep  books  in  an  adequate  manner  to  exhibit  true  financial 
condition  but  keeping  them  in  the  same  manner  as  before  the  passage  of  the 
Bankruptcy  Act,  negatives  fraudulent  intent  to  conceal  true  financial  condition 
therebv,  there  being  no  other  proof  of  fraudulent  intent.  In  re  Idzall,  2  A.  B. 
R.  741,' 96  Fed.  314  (D.  C.  Iowa). 

12.  Disappearance  of  books  of  account  seven  years  before  the  passage  of  the 
Bankruptcy  Act  itself  fails  to  show  fraudulent  intent  to  conceal  true  financial 
condition  thereby.  In  re  Stark,  2  A.  B.  R.  785,  96  Fed.  88  (D.  C.  N.  Y.). 

13.  No  account  of  bills  not  debts  payable  and  two  pages  of  ledger  torn  out: 
not  being  shown  to  have  been  done  by  bankrupt,  etc..  In  re  Brice,  4  A.  B.  R. 
355,  102  Fed.  114  (D.  C.  Iowa). 

14.  School  teacher  and  also  agent  for  farm  owned  by  his  wife  and  two  other 
heirs  failing  as  such  agent  to  keep  account  of  rents  collected  and  taxes  and  ex- 
penses paid;  and  withdrawing  of  funds  from  bank  and  redepositing  of  same  in 
wife's  name:  yet  not  sufficient  to  bar  discharge.  In  re  Keefer,  14  A.  B.  R.  290, 
135  Fed.  885  (D.  C.  N.  Y.). 

15.  Evidently  no  purpose  to  keep  a  false  set  of  books  or  to  conceal  condi- 
tion, and  the  informal  manner  of  keeping  them  explained  and  not  suspicious, 
discharge  not  refused.  In  re  Rauchenplat,  9  A.  B.  R.  763,  1  P.  R.  471  (D.  C. 
Porto   Rico). 

16.  Books  scheduled,  -but  left  at  place  of  business,  bankrupt's  testimony  not 
being  discredited,  In  re  Fades,  16  A.  B.  R.  30,  143  Fed.  293  (C.  C.  A.  Ills.). 

17.  Books  claimed  to  be  insufficient,  kept  in  another  state  under  control  of 
a  partner  located  there.  In  re  Garrison,  17  A.  B.  R.  831,  149  Fed.  178  (C.  C.  A. 
N.  Y.). 

151.  Instances  held  to  be  "concealment"  of  books  of  account  sufficient  to  bar 
discharge. 

1.    Substitution  of  copy  from   which   certain  original   entries   were   omitted   in 


§  2550  OPPOSITION  TO  discharge;.  1537 

stroyed^^-   books  of  account  or  records   which  might  have  aided  in  the 
ascertainment  of  his  financial  condition,  his  discharge  will  be  refused. 

Obviously,  the  clause  "from  which  his  financial  condition  might  be  .as- 
certained," §  17  (b),  does  not  require  that  creditors  show  the  books  con- 
cealed or  destroyed  to  have  been  sufficient,  either  in  themselves  or  with 
other  books,  to  ascertain  in  full  the  financial  condition  of  the  bankrupt. 
It  is  enough,  if  from  them  naturally  might  have  been  ascertained  pertinent 
facts  about  the  bankrupt's  financial  condition.  To  put  more  upon  the  cred- 
itors would  nullify  the  provision.  Indeed,  the  statute  might  more  properly  be 
read  as  if  the  words  "books  of  account  or  records"  were  inserted  sepa- 
rately after  the  words  "destroyed"  and  "concealed,"  thus :  "Has  de- 
stroyed or  concealed  books  of  account  or  records  or  failed  to  keep  books 
of  account  or  records  from  which  his  financial  condition  might  be  ascer- 
tained." 

But  compare,  In  re  Eades,  16  A.  B.  R.  30,  143  Fed.  293  (C.  C.  A.  Ills.): 
"*  *  *  that  they  were  not  material  for  ascertaining  his  financial  condition  or 
for  other  purpose." 

order  to  save  inquiry  and  explanation,  all  the  transactions  being  between  rel- 
atives and  open  to  suspicion,  In  re  Bachron,  8  A.  B.  R.  732  (D.  C.  Wis.). 

2.  Before  bankruptcy,  failing  debtor  sending  his  account  books  to  one  cred- 
itor with  statement  that,  if  examined  in  aid  of  execution  would  swear  he  did 
not  know  their  whereabouts;  thereafter  several  times  consulting  them  while 
in  the  creditor's  hands,  subsequently  swearing  while  in  bankruptcy  that  he  does 
not  know  their  whereabouts,  quaere,  In  re  Kamsler,  2  N.  B.  N.  &  R.  97  (Ref. 
N.  Y.). 

3.  Bankrupt  testifying  that  his  books  were  in  his  safe,  but  proof  "showing 
safe  not  touched  by  anybody  but  himself,  In  re  Lewin,  18  A.  B.  R.  72  (D.  C. 
N.  Y.). 

Instances  held  not  to  be  such  concealment  of  books  as  to  bar  discharge. 

1.  Concealment  of  books  begun  in  1893  could  not  be  in  "contemplation  of 
bankruptcy,"  as  required  before  the  Amendment  of  1903,  In  re  Polakoflf,  1  A.  B. 
R.  359  (Master's  Report,  affirmed  by  D.  C.  N.  Y.). 

2.  Three  years  before  bankruptcy  and  not  certain  even  then,  In  re  Phillips, 
3  A.  B.  R.  542,  98  Fed.  844  (D.  C.  N.  Y.). 

152.    Instance  of  destruction  of  books  sufficient  to  bar  discharge. 

1.  Destruction  of  books  of  partnership  of  which  bankrupt  a  member,  being 
material  to  a  proper  understanding  of  his  own  condition,  In  re  Conley,  9  A.  B. 
R.  496,  120  Fed.  42   (D.  C.  Ga.). 

Instances  of  destruction  of  books  held  insufficient  to  bar  discharge. 

1.  Destruction  of  check  book  and  pass  book  at  a  time  when  bankrupt's  debts 
were  few  and  of  trifling  amount  is  not  a  bar  to  discharge  as  being  with  intent 
to  conceal  true  financial  condition  even  though  the  evidence  shows  a  living  be- 
yond one's  means  and  also  indulgence  in  stock  gambling  and  borrowing  within  a 
short  time  of  bankruptcy.  In  re  Studebaker,  11  A.  B.  R.  384,  127  Fed.  591  (C. 
C.  A.  N.  Y.,  reversing  10  A.  B.  R.  205). 

2.  Altering  and  mutilating  of  old  records  of  a  corporation  of  which  bankrupt 
was  merely  bookkeeper,  where  mutilated  parts  were  immaterial  anyway,  Ba'i- 
man  v.  Feist,  5  A.  B.  R.  703,  107  Fed."  83  (C.  C.  A.  Iowa). 

3.  Destruction  of  saleman's  slips,  the  amounts  at  close  of  each  day  being  trans- 
ferred to  cash  book,  held  insufficient  where  no  proof  exists  that  destruction  was 
with  fraudulent  intent.  In  re  Allendorf,  12  A.  B.  R.  320,  129  Fed.  981  (D.  C. 
Iowa). 

2  Rem  B— 22 


1538  REMINGTON  ON  BANKRUPTCY.  §  2552 


Presentation  of  False  Ceaim  or  Demand  as  Bar  to  Discharge. 

§  2551.  Presentation  of  False  Claim  or  Demand  as  Bar  to  Dis- 
charge.— If  the  bankrupt  shall  have  presented  under  oath  any  false  claim 
for  proof  against  the  estate,  or  used  any  such  claim  in  composition,  person- 
ally or  by  agent,  proxy  or  attorney,  or  as  agent,  proxy  or  attorney,  his 
discharge  may  be  barred. 

This  was  an  offense,  visited  with  seven  penalties,  under  the  first  English 
Bankrupt  Act,  that  of  34  Henry  VIII. ^^^  It  is  also  one  of  the  ofifenses 
punishable  by  imprisonment  under  the  provisions  of  §  29,  of  the  United 
States  Bankruptcy  Act  of  1898.  It  may  be  committed  by  the  bankrupt, 
undoubtedly,  as  well  as  by  a  third  person ;  as,  for  instance,  where  the 
bankrupt,  "as  agent,"  presents  a  false  claim  in  behalf  of  a  wife,  as  some- 
times happens.  It  is  also  possible  for  the  bankrupt  to  aid  a  creditor  in 
presenting  a  false  claim  by  making  a  false  oath  to  the  amount  of  the  debt 
in  his  schedules.  1^^ 

There  appear  to  be  no  decided  cases  directly  upon  the  point  of  refusal 
of  a  discharge  upon  this  ground.  It  would  seem  to  be  easy  for  a  bankrupt 
to  commit  this  ofifense  in  composition  cases  and  thus  to  bar  his  composi- 
tion. 

subdivision  "t." 

Fraudulent   Transfers,   Concealments   or   Removals   within    Four 
Months  of  Bankruptcy  as  Bar  to  Discharge. 

§  2552.  Grounds  of  Opposition  to  Discharge  Added  by  Amend- 
ment of  1903. — By  the  amendment  of  1903  certain  additional  grounds 
of  discharge  were  added ;  fraudulent  transfers,  concealments  and  removals 
within  the  four  months  preceding  the  bankruptcy ;  the  obtaining  of  prop- 
erty on  false  representations,  the  procurement  of  a  discharge  within  six 
years  and  the  failure  to  obey  an  order  of  the  court. ^^^ 

153.  See  ante,  Introd.,  §  (g),  Act  of  King  Henry  VIII. 

154.  Compare,  for  suggestion  along  this  line,  In  re  IMiner,  9  A.  -B.  R.  102. 
117  Fed.  953   CD.  C.  Ore.). 

155.  Amendment  of  1903  may  apply  to  acts  committed  before  1903  even 
though  the  law  itself  may  not  apply  to  acts  ccjmmitted  before  1898,  In  re 
Neely,  12  A.  B.  R.  407,  l.",4  Fed.  667  (Ref.  N.  Y.)  :  "In  all  such  cases,  the  courts 
have  very  properly  held  that  no  retroactive  effect  can  be  given  to  the  discharge 
features  of  the  law. 

"But  the  reasoning  does  not  apply  with  the  same  force  to  an  amendment 
01  eating  a  new  ground  of  objection  to  a  discharge  for  a  bankruptcy  law  is  already 
in  existence,  and  the  amendments  are  engrafted  upon  an  existing  statute.  Re- 
strictions upon  discharge  affect  the  remedy  only.  The  right  to  a  discharge  is 
not  an  absolute  vested  right.  It  was  not  originally  a  feature  of  bankruptcy 
legislation  cither  in  this  country  or  in  England.  The  fundamental  element  in 
every  system  of  bankruptcy  has  been  to  provide  for  and  regulate  the  distri- 
bution of  the  bankrupt's  property  equally  among  his  creditors.  Originally  this 
was  its  only  purpose,  and' it  was  confined  to  traders  as  a  purely  commercial  reg- 
ulation. Latterly  a  second  element  was  added  in  the  provisions  for  discharge 
upon  such  terms  and  conditions  as  the  act  may  provide.'" 

In  re   Carleton,    12   A.   B.    R.   475    (D.    C.    Mass.). 


§    2556  OPPOSITION  TO  DISCHARGE.  1539 

§  2553.  Transfer,  Removal  or  Concealment  within  Four  Months, 
as  Bar  to  Discharge. — A  bankrupt's  discharge  will  be  barred  if  he  shall 
have,  at  any  tim'e  subsequent  to  the  first  day  of  the  four  months  immedi- 
ately preceding  the  filing  of  the  bankruptcy  petition,  transferred,  removed, 
destroyed,  concealed,  or  permitted  to  be  removed,  destroyed  or  concealed, 
any  of  his  property,  with  intent  to  hinder,  delay  or  defraud  any  of  his 
creditors. ^^"^ 

§  2554.    Must  Be  within  Four  Months  Preceding  Bankruptcy. — 

To  be,  in  and  of  themselves,  bars  to  discharge,  fraudulent  transfers,  con- 
cealments or  removals  of  property  must  have  been  made  within  the  four 
months  preceding  bankruptcy:     "Expressio  unius,  exclusio  alterius.''^^'^ 

In  so  far  as  fraudulently  transferred  or  concealed  or  removed  property 
may  be  the  subject  of  fraudulent  and  knowing  "concealment"  of  property 
belonging  to  the  estate,  mentioned  as  the  first  ground  for  barring  discharge, 
it  is  obvious  that  the  original  fraudulent  transfer  or  removal  or  initial  con- 
cealment may  have  occurred  more  than  four  months  before  the  bankruptcy, 
so  long  as  the  property  is  still  recoverable  by  the  trustee  and  the  conceal- 
ment of  it  continues  after  the  bankruptcy,  the  fraudulent  transfer  itself 
not  being  the  ground  of  opposition  but  constituting  the  property  involved, 
property  "belonging  to  the  estate,"  the  concealment  of  which  constitutes 
the  real  bar  to  the  discharge.  In  such  cases,  however,  the  property  must 
be  shown  to  be  still  recoverable,  else  concealment  of  it  is  not  concealment 
'■from  the  trustee"  of  "property  belonging  to  the  estate." 

§  2555.  But  Property  Need  Not  Be  Still  Recoverable. — It  does  not 
appear  "necessary,  under  this  ground  of  opposition  to  discharge,  to  prove 
that  the  property  was  still  recoverable  at  the  time  the  trustee  was  elected. 
It  is  the  perpetration  of  the  fraudulent  transfer  or  removal,^ etc.,  that  is 
the  bar ;  not  the  concealment  of  it  from  the  trustee,  and  if  perpetrated 
within  the  four  months  it  is  sufficient,  even  though  the  trustee  may  be 
unable,  for  some  reason,  to  recover  it  now. 

SUBDIVISION"    "f." 

False  Statements  in  Writing  to  Obtain  Property  on  Credit. 

§  2556.  Obtaining  Property  on  Credit  on  False  Statement,  in 
Writing,  as  Bar  to  Discharge. — A  bankrupt's  discharge  will  be  barred 
if  he  shall  have  obtained  property  on  credit  from  any  person  upon  a  nia- 

156.  Bankr.  Act,  §  14  (b).  In  re- Miller,  14  A.  B.- R.  329,  135  Fed.  591  (D.  C. 
Va.);  In  re  Gift,  12  A.  B.  R.  244,  130  Fed.  330  (D.  C.  Pa.);  instance,  In  re 
Young,  15  A.  B.  R.  477,  140  Fed.  728  (D.  C.  N.  Car.). 

157.  Obiter,  In  re  Brumbaugh,  12  A.  B.  R.  204,  128  Fed.  971  (D.  C.  Penn.). 
See  ante,  §§  2482,  2498,  2506,  et  seq. 


1540  REMINGTON    ON    BANKRUPTCY.  §   2558 

terially  false  statement  in  writing,  made  to  such  person  for  the  purpose 
of  obtaining  such  property.^^^ 

In  re  Scott,  11  A.  B.  R.  327,  126  Fed.  981  (D.  C.  Del.):  "Where  S.  in  Sep- 
tember, 1902,  obtained  property  on  credit  from  a  firm  upon  a  materially  false 
statement  in  writing  made  to  such  firm  for  the  purpose  of  obtaining  such  prop- 
erty on  credit,  and  in  March,  1903,  was  adjudged  a  bankrupt  on  his  own  peti- 
tion, and  subsequently  applied  for  a  discharge;  held,  that  by  virtue  of  the  Act 
of  February  5,  1903,  amendatory  of  the  Bankruptcy  Act  of  July  1,  1898,  a  specifi- 
cation in  opposition  filed  by  the  firm,  which  had  proved  its  claim,  setting  up  such 
obtaining  of  property,  presented  a  bar  to  his  discharge." 

i§  2557.  New  Ground,  Only  Available  in  Bankruptcies  Instituted 
Since  Amendment. — This  was  not  a  ground  for  discharge  before  the 
amendment  of  1903. ^^^^ 

In  re  Scott,  11  A.  B.  R.  327,  126  Fed.  981  (D.  C.  Del.):  "The  bar  to  a  dis- 
charge resulting  from  obtaining  property  on  credit  on  a  materially  false  state- 
ment in  writing  is  a  novel  feature  of  the  bankruptcy  legislation  of  the  United 
States.  Nothing  like  it  is  to  be  found  in  any  of  the  earlier  Bankruptcy  Acts, 
whatever  analogies,  remote  or  close,  they  may  contain." 

Nor  in  any  former  Bankruptcy  Act  of  the  United  States  or  England. ^'''^ 
And  it  is  not  an  available  ground  in  bankruptcies  instituted  before  the 
amendment.  ^*^i 

§  2558.  Statement  before  Amendment  Sufficient  if  Proceedings 
Instituted  after  Amendment. — Although  the  statement  was  made  be- 
fore the  amendment  of  1903  made  such  statements  ground  for  barring  dis- 
charge, yet  it  is  sufficient  to  bar  discharge  in  proceedings  instituted  since 
the  amendment. ^"^ 2 

158.  The  original  bill  of  the  proposed  amendment  read  as  follows:  "Section 
14b  *  *  *  or  (3)  obtained  property  on  credit  (which  has  not  been  paid  for 
or  restored  at  any  time  the  petition  is  filed  by  or  against  him),  upon  a  mate- 
rially false  statement  in  writing  made  (by  him)  to  (any)  person  for  the  purpose 
of  obtaining  credit,  or  of  being  communicated  to  the  trade,  or  to  the  person 
from  whom  he  obtained  such   property  on  credit." 

Bankr.  Act,  §  14  (b)  (e);  In  re  Dresser,  16  A.  B.  R.  561,  146  Fed.  383  (C. 
C  A.  N.  Y.);  In  re  Hardie  &  Co.,  16  A.  B.  R.  313,  143  Fed.  607  (D.  C.  Tex.); 
In  re  Harr,  16  A.  B.  R.  216,  143  Fed.  421  (D.  C.  Mo.);  In  re  Dresser,  13  A.  B. 
R.  639,  144  Fed.  318  (D.  C.  N.  Y.) ;  In  re  Peterson.  10  A.  B.  R.  355  (D.  C. 
Minn.);  In  re  Goodhile,  12  A.  B.  R.  380,  130  Fed.  782  (D.  C.  Iowa);  infer- 
entially  on  the  facts,  discharge  not  refused.  In  re  Allendorf,  12  A.  B.  R.  324, 
]29  Fed.  981  (D.  C.  Iowa);  instance,  In  re  Kaplan  &  Skwersky,  15  A.  B.  R. 
534,  141  Fed.  463  (D.  C.  Pa.);  instance.  In  re  Levey,  13  A.  B.  R.  312,  133  Fed. 
572  (D.  C.  N.  Y.). 

159.  In  re  Steed  &  Curtis,  6  A.  B.  R.  73,  107  Fed.  682  (D.  C.  N.  Car.);  In  re 
Harr,  16  A.  B.  R.  216,  143  Fed.  421  (D.  C.  Mo.). 

160.  In  re  Dresser  &  Co.,  13  A.  B.  R.  619,  144  Fed.  318  (Special  Master  N. 
V)-   In  re   Harr,   16  A.   B.    R.   216,   143   Fed.   421    (D.    C.    Mo.). 

161.  In  re  Dauchy,  10  A.  B.  R.  527,  122  Fed.  688  (D.  C.  N.  Y.}. 

162.  In  re  Petersen,  10  A.  B.  R.  355  (D.  C.  Minn.);  inferentially.  In  re  Good- 
hile, 12  A.  B.  R.  380,  130  Fed.  782  (D.  C.  Iowa);  inferentially,  In  re  Neely,  12 
A.  B.  R.  407,  134  Fed.  667  (Ref.  N.  Y.) ;  inferentially,  In  re  Carleton,  12  A.  B. 
R.  475,  131  Fed.  146  (D.  C.  Mass.);  obiter,  In  re  Allendorf,  12  A.  B.  R.  324,  129 
Fed.  981   (D.  C.   Iowa). 


§  2559  OPPOSITION  TO  discharge:.  1541 

In"  re  Dresser,  13  A.  B.  R.  639,  144  Fed.  318  (D.  C.  N.  Y.) :  "I  think  there  is 
nothing  in  the  point  that  the  statement  was  made  before  the  amendment  of 
the  Bankruptcy  Act,  in  1903,  went  into  effect.  A  discharge  in  bankruptcy  is 
an  act  of  grace,  and  Congress  can  impose  such  conditions  upon  granting  a  dis- 
charge as  it  sees  fit.  There  is  nothing  analagous  between  a  law  preventing  a 
discharge  because  of  an  act  done  before  the  law  was  passed  and  an  ex  post 
facto  law." 

In  re  Scott,  11  A.  B.  R.  327,  126  Fed.  981  (D.  C.  Del.):  "In  order  that  a 
statute  may  have  a  retroactive  operation,  there  must  be  some  subject  on  which 
it  may  retroact.  But  the  Amendatory  Act  does  not  undertake  to  provide  for 
the  recovery  of  the  property  so  obtained  on  credit,  or  to  set  aside  or  otherwise 
affect  the  transaction.  Subdivision  3,  in  its  relation  to  cases  commenced  after 
its  passage,  where  the  property  was  obtained  prior  thereto,  certainly  is  not  an 
ex  post  facto  law,  nor  does  it  violate  or  disturb  any  vested  right  of  the  bankrupt 
or  his  creditors.  A  bankrupt  can  have  no  vested  right  to  a  discharge  until  the 
conditions  required  by  law  to  authorize  it  have  been  satisfied.  A  statute  is  not 
necessarily  retroactive  or  retrospective  because  its  operation  in  a  given  case 
may  be  dependent  upon  an  occurrence  anterior  to  its  passage,  or,  in  the  lan- 
guage of  Endlich,  'because  a  part  of  the  requisites  for  its  action  is  drawn  from 
a  time  antecedent  to  its  passing.'  " 

§  2559.  Whether  Other  than  Particular  Creditor  Defrauded  May 
Oppose  on  This  Ground. — Whether  any  other  than  the  person  thus  part- 
ing with  the  property  may  oppose  the  discharge  on  this  ground,  is  a 
question.  ^^3 

This  query  ilhistrates  the  lack  of  scientific  basis  for  the  addition  of 
this  ground  of  opposition  by  the  amendment  of  1903.  It  is  easy  enough 
to  see  that  the  particular  creditor  harmed  by  the  false  representations 
should  have  his  claim  excepted  from  the  operation  of  the  discharge,  but 
why  other  creditors  should  be  entitled  to  take  advantage  of  a  wrongdoing 
of  the  bankrupt  that  did  not  harm  them  at  all  but  rather  benefited  them 
by  the  pro  tanto  enrichment  of  the  bankrupt's  estate,  it  is  exceedingly 
difBcult  to  understand.  It  would  seem  that,  logically,  the  grounds  for 
refusing  a  bankrupt's  discharge  should  be  limited  to  those  acts  which 
tend  to  deplete  the  estate  and  to  make  the  discovery  of  its  true  condition 
difficult ;  to  those  acts  which  afifect  the  creditors  in  general,  and  not  merely 
particular  creditors.  For  the  particular  creditor  the  remedy  should  be  the 
excepting  of  his  claim  from  the  operation  of  the  discharge. 

In  view  of  the  fact  that  opposition  to  discharge  should  be  available  to 
any  creditor  not  estopped,  as  also  in  view  of  the  wording  of  the  statute, 
''obtained  from  any  person,"  it  would  seem  that  any  party  in  interest 
might  oppose  the  discharge  on  this  ground,  even  though  the  representa- 
tions were  not  made  to  him,  nor  the  credit  nor  goods  given  by  him.^^^ 

In  re  Carton  &  Co.,  17  A.  B.  R.  352,  148  Fed.  63  (D.  C.  N.  Y.):  "It  should 
not  depend  upon  the  whim  or  good  nature  of  any  particular  creditor  to  whom 

163.  Compare,  In  re  Dresser  &  Co.,  13  A.  B.  R.  639,  144  Fed.  318,  (D.  C.  N. 
Y.);  compare,  impliedly.  In  re  Allendorf,  12  A.  B.  R.  324,  129  Fed.  981  (D.  C. 
Iowa). 

164.  In  re  Harr,  16  A.  B.  R.  213,  143  Fed.  421  (D.  C.  Mo.). 


1542  REMINGTON    ON   BANKRUPTCY.  §    2563 

the  false  statement  was  made  whether  the  ofifending  bankrupt  should  be  given 
or  refused  his  discharge.  Any  'party  in  interest'  who  chooses  to  bring  the 
wrongful  act  to  the  attention  of  the  court  and  proves  that  it  was  wrong  within 
the  meaning  of  the  statute  is  entitled  so  to  do." 

§  2560.   First  Element  "Materially  False  Statement  in  Writing." 

— It  is  an  essential  element  of  this  bar  to  discharge  that  a  materially  false 
statement  in  writing  shotild  have  been  made.^*^^ 

§  2561.  Written  Statement  Need  Not  Be  Delivered  if  Contents 
Communicated. — If  such  written  statement  is  made,  it  is  not  necessary 
that  it  have  been  delivered :  it  is  sufficient  if  it  shall  have  been  commu- 
nicated. 

In  re  Dresser,  16  A.  B.  R.  563,  146  Fed.  383  (C.  C.  A.  N.  Y.):  "And  it  is 
none  the  less  'made,'  although  the  statement  itself  is.  not  delivered  when  its 
contents  are  correctly  communicated  by  the  agent.  The  purpose  of  Congress 
in  prescribing  a  written  statement  to  be  essential  was  to  protect  the  bankrupt 
from  the  danger  of  having  his  statement  perverted  or  distorted  by  parol  evi- 
dence, and  that  purpose  is  equally  well  accomplished  whether  the  statement 
itself  is  used  in  obtaining  the  property,  or  whether  the  contents  are  communi- 
cated. The  language  of  the  clause  does  not  necessarily  import  that  the  state- 
ment shall  have  been  made  for  the  purpose  of  inducing  any  particular  person 
to  rely  upon  it. 

"The  phraseology  of  the  clause  in  its  entirety  is  consistent  with  the  inter- 
pretation which  we  have  thus  indicated.  We  are  asked  to  read  it  as  though  in- 
stead of  the  word  'made'  Congress  had  used  the  word  'delivered.'  The  use  of 
that  word  would  have  required  a  very  different  construction  to  be  placed  upon 
the  clause,  and  if  Congress  had  intended  such  a  construction,  it  is  to  be  assumed 
that  the  word  would  have  been  used."' 

§  2562.  Second  Element:  Must  Be  by  Bankrupt. — It  is  an  essential 
element  of  this  bar  that  the  statement  must  have  been  made  by  the  bank- 
rupt or  by  his  authority. 

§  2563.  But  if  Made  by  Agent  with  Bankrupt's  Authority,  Suffi- 
cient.— A. statement  made  by  an  agent,  with  the  bankrupt's  authority,  is 
sufficient.i^*5  ^^j-^j  [^  \-^^^  j^g^j-,  i-,gi^|  ^j-,^^  ^-i^^  implied  agency  of  a  partner 
is  sufficient. 1^" 

But  it  is  not  sufficient,  if  not  made  with  the  bankrupt's  authority.i^''^ 

In  re  Dresser,  16  A.  B.  R.  561,  146  Fed.  383  (C.  C.  A.  N.  Y.) :  "*  *  * 
within  the  fair  meaning  of  the  clause  the  statement  is  made  to  such  person  if 
it  was  given  to  an  agent  for  the  purpose  of  using  it  in  obtaining  property  for  the 

165.  Obiter,  discharge  not  refused,  for  other  grounds  lacking,  In  re  Allen- 
dorf,  12  A.  B.  R.  324,  129  Fed.  981  (D.  C.  Iowa). 

166.  In  re  Goodhile,  12  A.  B.  R.  383,  130  Fed.  782  (D.  C.  Iowa) 

167.  In  re  Hardie  &  Co.,  16  A.   B.  R.  313,  143  Fed.  607   (D.  C.  Tex.). 

168.  Compare,  In  re  Schultz,  6  A.  B.  R.  91,  109  Fed.  264  (D.  C.  N.  Y.),  as  to 
agent's  acts  not  imputable  to  bankrupt  principal  unless  within  scope  of  agency 
In  re  Dresser,  13  A.  B.  R.  616,  144  Fed.  318  (Ref.  N.  Y.,  affirmed  by  D.  C). 


§   2566  OPPOSITION  TO  DISCHARGE.  1543 

bankrupt,  and  if  its  contents  were  communicated  by  the  agent  to  such  person. 
The  words  'such  person'  refer  to  the  previous  words  'any  person,'  and  the 
statement  is  'made  to  such  person'  whenever  it  is  made  by  the  bankrupt  him- 
self or  his  duly  authorized  agent." 

And  it  has  been  held  that  one  partner  will  not  be  barred  of  his  dis- 
charge by  false  statements  made  by  his  copartner  of  which  he  was  ignorant 
and  which  were  not  made  by  his  authority. ^*^"-^ 

§  2564.  Third  Element:  Must  Be  Made  to  Person  from  Whom 
Property  Obtained. — It  is  a  further  clement,  necessary  to  complete  this 
bar  to  discharge,  that  the  statement  shall  have  been  made  to  the  person 
from  whom  the  property  was  obtained. ^''•^ 

§  2565.  Whether,  if  Made  to  Mercantile  Agencies,  or  in  Answer 
to  General  Inquiries,  a  Bar. — It  is  contended  in  one  case  that  false 
statements  to  mercantile  agencies,  or  in  answer  to  general  inquiries,  will 
be  insufficient  to  bar  discharge. 

Obiter,  In  re  Dresser  &  Co.,  13  A.  B.  R.  616,  144  Fed.  318  (Ref.  N.  Y.,  af- 
firmed by  D.  C.) :  "If  the  Ray  bill  had  become  a  law  as  proposed  [see  foot- 
note to  main  proposition  of  this  subdivision  for  words  of  original  amendment], 
the  objection  of  the  creditors  herein  would  unquestionably  be  sustained.  It 
would  be  sufficient  in  that  event,  to  show  that  Dresser  &  Co.  obtained  prop- 
erty on  credit  from  some  person,  and  the  materially  false  statement  in  writing 
need  only  to  have  been  made  by  them  to  any  person  for  the  purpose  of  qbtain- 
ing  credit,  or  to  any  person  for  the  purpose  of  being  communicated  to  the  trade, 
or  to  the  person  from  whom  they  obtained  credit.     *     *     * 

"It  will  be  observed  that  false  statements  made  to  mercantile  agencies,  or 
in  answer  to  general  inquiries,  or  for  general  circulation,  are  eliminated  from 
among  the  grounds  of  objections  to  discharge." 

But  the  better  rule  is  that  a  false  written  statement  to  a  commercial 
agency  made  with  intent  to  procure  credit  may  be  sufficient  to  bar  dis- 
charge.^" ^  The  bankrupt  need  not  have  intended  to  deceive  any  particular 
person.  It  is  sufficient  if  he  intended  to  deceive  any  person  of  a  group, 
whether  the  person  or  group  were  known  to  him  or  not.^"^ 

§  2566.  Fourth  Element:  Property  Must  Be  Obtained  on  Credit 
Thereby. — It  is  essential,  furthermore,  that  the  bankrupt  shall  have  ob- 
tained property  on  credit  thereby.^"" 

But  if  the  bankrupt  does  not  receive  the  identical  property  parted  with 
on  the  faith  of  the  false  representations,  but  merely  derives  some  ben- 
efit therefrom,  it  seems,  nevertheless,  to  be  sufficient. ^"^ 

169.  In  re  Dresser,  13  A.  B.  R.  616,  144  Fed.  318  (Ref.  X.  Y.,  affirmed  by  D. 
C).     Contra.  In  re  Hardie  &  Co.,  16  A.  B.  R.  313,  143  Fed.  607  (D.  C.  Tex.). 

170.  Obiter.  In  re  Dresser,  W  A.  B.  R.  561,  146  Fed.  383  (C.  C.  A.  N.  Y.). 

171.  In  re  Pincus,  17  A.  B.   R.  331,  144   Fed.  621    (D.   C.   N.   Y.l. 

172.  In  re  Dresser,  16  A.  B.  R.  561,  146  Fed.  383  (C.  C.  A.  N.  Y.) ;  In  re- 
Dresser,   13  A.  .B.   R.   616,   144   Fed.  318    (Ref.   N.   Y.,   affirmed  by   D.    C). 

173.  Obiter,  In  re  Dresser  &  Co..  13  A.  B.  R.  616,  144  Fed.  318  (Ref.  N.  Y.). 

174.  Obiter,  In  re  Dresser  &  Co.,  13  A.  B.  R.  616,  144  Fed.  318  (Ref.  X.  Y.). 


1544  REMINGTON    ON    BANKRUPTCY.  §   2571 

§  2567.  Fifth  Element:  Bankrupt  Must  Intend  to  Obtain  Prop- 
erty Thereby. — It  is  also  a  necessary  element  to  complete  the  bar,  that 
the  bankrupt  shall  have  intended  to  obtain  property  thereby. 

§  2568.  Whether  Intent  Must  Be  to  Obtain  Particular  Property 
Actually  Obtained. — It  is  a  question  whether  the  intent  of  the  bank- 
rupt must  have  been  a  particular  intent  or  a  general  intent ;  that  is  to  say, 
whether  it  must  have  been  to  obtain  the  particular  property  in  question, 
or  to  obtain  general  credit. ^"^ 

§  2569.    Sixth  Element:    False  Statement  Must  Be  Relied  on.— 

If  the  false  statement  was  not  relied  on  in  parting  with  the  property,  the 
discharge  will  not  be  barred. ^■^'' 

§  2570.  "Continuing  Representations." — Unless  the  representations 
are  shown  to  have  been  continuing  representations,  the  subsequent  parting 
with  other  property  in  reliance  thereon  will  be  insufficient. ^'^'^ 

In  re  Allendorf,  12  A.  B.  R.  324,  129  Fed.  981  (D.  C.  Iowa):  "There  is 
nothing  in  the  statement,  nor  in  the  letter  of  the  bankrupt  inclosing  it  to  the 
creditor,  to  show  that  it  was  to  be  a  continuing  statement  or  representation  of 
the  bankrupt's  financial  standing — in  fact,  the  statement  is  expressly  limited  to 
his  condition  on  September  9th,  1902 — and  the  testimony  of  the  creditman  of 
this  creditor  and  the  letter  of  the  bankrupt  conclusively  show  that  it  was  made 
to  secure  the  bill  of  goods  prior  to  September  9th  only.  Between  that  date  and 
May  15th  following  (more  than  eight  months)  there  was  no  dealing  between 
these  parties,  and  there  is  no  evidence  from  which  it  can  be  fairly  inferred  that 
the  statement  was  made  for  the  purpose  of  obtaining  the  goods  shipped  upon 
the  orders  of  May  15th  and  May  20th.  To  defeat  a  discharge,  the  bankrupt  must 
have  obtained  property  upon  a  materially  false  statement  made  in  writing  for 
the  purpose  of  obtaining  such  property.  The  statement  in  question  was  not 
made  for  the  purpose  of  obtaining  the  property  shipped  to  the  bankrupt  by  his 
creditor  on  May  15th,  and  20th,  respectively,  nor  any  other  property  for  which 
he  is  now  owing." 

SUBDIVISION  "G." 

Pr]<;vious  Discharge;  within  Six  Years  as  Bar  to  Discharge. 

•  §  2571.  Previous  Discharge  within  Six  Years,  as  Bar  to  Dis- 
charge.— The  bankrupt's  discharge  will  be  barred  if  he  has  received  a 
previous  discharge  within  six  years  in  voluntary  proceedings. ^'^^ 

175.  That  it  will  be  sufficient  if  made  simply  to  obtain  general  credit,  im- 
pliedly, In  re  Pincus,  17  A.  B.  R.  331,  147  Fed.  621  (D.  C.  N.  Y.). 

176.  In  re  Dresser,  13  A.  B.  R.  616,  144  Fed.  318  (Ref.  N.  Y.) ;  impliedly,  In 
re   Kaplan  &  Skwersky,  15  A.  B.   R.  534,  141   Fed.  463   (D.  C.  Pa.)- 

177.  Compare,  In  re  Dresser  &  Co.,  13  A.  B.  R.  616,  144  Fed.  318  (Ref.  N. 
Y.). 

178.  Bankr.  Act,  §  14  (b)  5:  "Unless  he  has  ("5)  in  voluntary  proceedings 
been  granted  a  discharge  in  bankruptcy  within  six  years."  In  re  Neely,  12  A. 
B.  R.  407,  134  Fed.  667  (Ref.  N.  Y.) ;  In  re  Carleton,  12  A.  B.  R.  475,  131  Fed. 
146    (D.  C.  Mass.);  In  re  Haase,  17  A.  B.  R.  528  (D.  C.  N.  Y.). 


§    2571  OPPOSITION  TO  DISCHARGE.  1545 

In  re  Seaholm,  14  A.  B.  R.  292,  136  Fed.  144  (C.  C.  A.  Mass.):  "It  must  be 
observed  that  the  idea  of  placing  restrictions  and  limitations  upon  the  number 
and  frequency  of  discharges  to  be  granted  to  the  bankrupt  upon  its  own  appli- 
cation does  not  involve  a  new  philosophy,  nor  is  it  a  new  feature  of  bankruptcy 
legislation.  In  the  older  bankruptcy  statutes,  both  in  this  country  and  in  Eng- 
land, refusal  of  the  second  discharge  was  not,  as  a  rule,  limited  to  situations  in 
which  the  first  discharge  was  in  a  voluntary  proceeding,  but  a  discharge  on  a 
second  proceeding  was  denied  when  the  first  discharge  was  in  an  involuntary 
proceeding  as  well.  Under  the  English  Bankruptcy  Act  of  1890,  if  the  bankrupt 
had  on  any  previous  occasion  been  adjudged  a  bankrupt,  the  discharge  is  re- 
fused altogether,  or  suspended  for  a  period  of  not  less  than  two  years,  or  until 
a  dividend  of  not  less  than  10  shillings  on  the  f)ound  has  been  paid;  and  this 
restriction  upon  the  second  discharge  results  without  regard  to  whether  the 
earlier  bankruptcy  involved  a  voluntary  or  involuntary  proceeding,  and  without 
regard  to  lapse  of  tirhe  between  the  earlier  and  the  later  proceeding. 

"A  similar  feature  was  present  in  our  own  Bankruptcy  Law  of  1867,  where 
a  second  discharge  was  only  allowed  when  the  bankrupt's  estate  was  sufficient 
to  pay  70  per  cent.;  the  rigor  of  this  restriction  being  qualified  only  by  a  pro- 
vision which  enabled  three-fourths  of  the  creditors  to  consent  to  a  discharge 
upon  payment  of  a  less  sum. 

"The  debates  in  Congress  in  connection  with  the  proposed  amendments  of 
1903  to  the  Law  of  1898,  enlarging  the  grounds  for  withholding  a  discharge, 
show  that  the  amendments  were  directed  against  alleged  abuses,  through  the 
frequency  of  bankruptcy  proceedings  instituted  by  the  same  individual,  and 
from  repeated  discharges  in  bankruptcy  upon  the  application  of  the  bankrupt, 
and  that  such  ad  libitum  discharges  resulted  from  the  absence  of  the  usual 
restriction  upon  the  bankrupt,  which  was  omitted  through  oversight. 

"The  fifth  clause  of  the  amendments,  as  originally  drawn  and  under  debate 
in  the.  House  of  Representatives,  where  it  was  attacked  as  oppressive  to  the 
bankrupt,  was  sufficiently  comprehensive  to  direct  itself  against  a  discharge 
if  the  applicant  had  been  granted  or  denied  a  discharge  within  six  years  in 
■either  voluntary  or  involuntary  proceedings.  It  was  as  follows:  'or  (5)  been 
granted  or  denied  a  discharge  in  bankruptcy  within  six  years.'  The  debates 
show  that  those  who  were  against  the  proposed  amendment,  on  the  ground 
that  it  was  oppressive,  urged  that  a  debtor  ought  to  be  discharged  in  an  invol- 
untary proceeding  instituted  by  the  creditors  who  had  taken  his  assets,  with- 
out regard  to  the  number  or  the  character  of  the  previous  proceedings  or  dis- 
charges, yet,  after  full  debate,  the  amendment  passed  the  House  in  its  compre- 
hensive terms,  and  without  modification.  The  Senate,  by  amendment,  modified 
the  rigid  terms  of  the  House  proposition  by  striking  out  the  words  'or  denied,' 
and  inserting  the  words  'in  voluntary  proceedings,'  thus  presenting  to  the  House 
the  present  clause  5,  which  in  two  substantial  respects  modified  the  House 
proposition:  First,  by  omitting  the  words  'or  denied,'  thus  limiting  its  operation 
to  cases  in  which  a  discharge  has  been  actually  grantejl;  and,  second,  by  in- 
serting the  words  'in  voluntary  proceedings,'  which  withdraws  its  operation 
from  cases  in  which  the  bankrupt  has  been  discharged  in  a  previous  involuntary 
proceeding. 

"Under  the  Senate  amendment,  it  was  left  that  the  applicant  shall  be  dis- 
charged 'unless  he  has  *  *  *  ji^  voluntary  proceedings  been  granted  a  dis- 
charge in  bankruptcy  within  six  years.'  To  the  modified  clause  presented  by 
the  Senate,  the  House  agreed,  and  it  became  a  law. 

"In  view  of  the  sweeping  terms  of  clause  5,  as  originally  drawn  and  passed 
by  the  House,  and  of  the  Senate  amendment,  which  was  merely  a  modification 


1546  REMINGTON    ON   BANKRUPTCY.  §   2573 

of  the  House  policy  or  proposition,  rather  than  a  reversal,  the  conclusion  is 
irresistable  that  it  was  not  the  purpose  of  Congress  to  allow  a  second  dis- 
charge to  a  debtor  upon  his  own  application  if  the  prior  discharge  was  granted 
to  him  in  a  voluntary  proceeding  within  the  time  limitation  under  which  the 
clause  operates — in  other  words,  that  it  was  the  final  intention  of  Congress  to 
give  the  bankrupt  a  second  discharge,  on  his  own  application,  in  a  subsequent 
involuntary  proceeding,  only  in  cases  where  his  first  discharge  was  in  an  invol- 
untary proceeding." 

§  2572.  Whether  Present  Application  Be  in  Involuntary  or  Vol- 
untary Bankruptcy,  Immaterial. — Whether  the  proceedings  in  which 
the  present  apphcation  for  discharge  are  vohmtary  or  invohmtary  is  imma- 
terial. It  is  the  character  of  the  proceedings  wherein  the  former  discharge 
^\as  granted  that  is  material. ^"^ 

■  In  re  Seaholm,  14  A.  B.  R.  292,  136  Fed.  144  (C.  C.  A.  Mass.):  "This  appeal 
*  *  *  raises  the  question  whether  the  words  'in  voluntary  proceedings,'  in 
§  14,  subsec.  'b,'  cl.  5,  describe  or  have  reference  to  the  pending  proceeding,  in 
which  the  bankrupt  himself  stands  upon  his  second  application  for  discharge, 
or  to  a  previous  and  past  proceeding,  in  which  he  has  been  discharged  within 
six   years. 

"But  for  the  ingenious  and  somewhat  subtle  contention  of  the  appellant,  the 
meaning  of  the  statute  in  this  respect  would  seem  to  be  clear,  as,  by  omitting 
from  subsection  'b'  all  the  grounds  for  refusing  a  discharge  except  the  one  ma- 
terial in  this  case,  the  statute  would  read,  'investigate  the  merits  of  the  appli- 
cation and  discharge  the  applicant  unless  he  has*  in  voluntary  proceedings  been 
granted  a  discharge  in  bankruptcy  within  six  years.'  Such  a  reading  neces- 
sarily results,  as  the  conjunction  'or'  connects  the  subject  'he'  with  the  verb 
in  each  of  the  five  succeeding  clauses.  Each  clause  introduced  by  'or'  natur- 
ally and  necessarily  refers  itself  back  to  the  subject  'he'  and  the  verb  'has/ 
the  verb  'has'  obviously  referring  to  the  past.  The  argument,  however,  is  made 
that,  through  possible  punctuation,  like  introducing  a  comma  after  the  word 
'proceedings,'  then  under  reasonable  construction  the  words  'in  voluntary  pro- 
ceedings'«would  have  reference  to  the  proceeding  in  which  the  second  discharge 
was  granted.  We  do  not  think  the  statute  reasonably  susceptible  of  such  a 
construction;  and  it  is  quite  certain  that,  under  the  well-known  rules  govern- 
ing the  interpretation  of  statutes,  such  a  forced  construction  would  not  be 
warranted  imless  unmistakable  and  efficient  historical  considerations  make  it 
plain  that  it  was  so  intended  by  Congress." 

§  2573.  Previous  Discharge  in  Involuntary  Proceedings,  No  Bar. — 

If  the  previous  discharge  within  six  years  were  granted  in  an  involuntary 
proceedings,  it  is  no  bar. 

In  re  Neely,  12  A.  B.  R.  407,  134  Fed.  667  (Ref.  N.  Y.) :  "Having  once  been 
granted  a  discharge  in  proceedings  instituted  by  himself,  and  to  serve  his  own 
purposes,  he  precludes  hirrfself  from  again  seeking  the  benefit  of  a  discharge, 
in  voluntary  or  involuntary  proceedings  for  a  period  of  six  years." 

179.    In  re  Neely,  12  A.   B.  R.  407,  134  Fed.  667   (Ref.  N.  Y.). 


§  2576  OPPOSITION  TO  discharge;.  1547 

§  2574.  In  Voluntary  Proceedings,  It  Is  Bar. — If  the  previous  dis- 
charge within  the  six  years  were  granted  in  a  vokmtary  proceedings,  it  is 
a  bar. ISO 

In  re  Carleton,  12  A.  B.  R.  -475,  131  Fed.  146  (D.  C.  Mass.):  "Carleton  was 
adjudged  bankrupt  upon  a  petition  which  he  filed  as  member  of  a  firm  com- 
posed Qf  himself  and  one  Freeman.  On  October  28th,  1902,  he  received  his 
discharge.  On  December  10th,  1903,  he  was  again  adjudged  bankrupt  upon 
his  individual  voluntary  petition  and  now  seeks  a  discharge  thereunder.  *  *  * 
Counsel  for  the  bankrupt  has  suggested  that  the  first  adjudication  was  not  had 
in  voluntary  proceedings;  but,  so  far  as  the  present  bankrupt  is  concerned, 
the  partnership  proceedings  must  be  deemed  voluntary." 

§  2575.  Previous  Refusal  of  Discharge  within  Six  Years  Not 
within  Bar,  Though  Res  Judicata  as  to  Old  Debts. — The  bar  of  the 

statute  covers  only  cases  where  a  previous  discharge  has  been  granted  and 
not  where  it  has  been  refused.  Nevertheless,  a  previous  refusal  of  dis- 
charge, whether  within  the  six  years  or  before,  whether  in  involuntary  or 
in  voluntary  bankruptcy  proceedings,  is  res  judicata  as  to  the  old  debts 
provable  in  the  former  bankruptcy  even  though  also  provable  under  the 
present  bankruptcy.^^^ 

§  2576.  This  Bar  Applicable  Where  Proceedings  Instituted  after 
Amendment   of   1903,   Though   Facts  Occurred  Beforehand. — The 

amendment  of  1903,  thus  barring  repeated  discharges,  is  applicable  to  all 
cases  wherein  the  proceedings  were  begun  after  the  passage  of  the  amend- 
ment, even  though  the  bar  depends  on  facts  occurring  prior  to  its  passage. 
It  is  not  for  that  reason  retroactive. ^^^ 

In  re  Carleton,  12  A.  B.  R.  475,  131  Fed.  146  (D.  C.  Mass.):  "He  contends 
chiefly  that  to  deny  the  bankrupt  a  discharge  in  this  case  would  be  to  give  to 
the  Ray  bill  a  retroactive  effect;  but  this  is  not  true.  The  original  Bankrupt 
Act  *  *  *  indeed,  did  not  forbid  successive  petitions  in  bankruptcy  and  suc- 
cessive discharges  thereunder,  but  it  conferred  upon  a  bankrupt  no  vested  right 
to  file  successive  petitions  aiid  to  receive  successive  discharges  which  is  im- 
paired by  the  Ray  bill.  That  statute  is  not  retroactive.  It  creates  no  new 
offense  and  imposes  no  penalty,  but  only  fixes  new  conditions  of  discharge  in 
case  of  petitions  filed  after  its  passage.  Its  language  is  plain,  and,  in  accordance 
therewith,   the   discharge   is   here   refused." 

But  not  where  the  petition  in  bankruptcy,  wherein  the  discharge  is  being 
sought,  was  filed  before  the  amendment. 

In  re  Seaholm,  14  A.  B.  R.  292,  136  Fed.  144  (C.  C.  A.  Mass.):  "The  appel- 
lant's other  point  is  that  the  amendment,  under  such  construction,  is  retro- 
active, because,  under  the  old  law,  the  bankrupt  would  be  entitled  to  a  second 
discharge  in  either  a  voluntary  or  an  involuntary  proceeding.     It  is  a  sufficient 

180.  In  re  Neely,  12  A.  B.  R.  407,  134  Fed.  667  (Ref.  N.  Y.). 

181.  See  ch.  LH,  division  3,  §  2437,  et  seq. 

182.  In  re  Neely,  12  A.  B.  R.  407,  134  Fed.  667   (Ref.  N.  Y.). 


1548 


REMINGTON    ON    BANKRUPTCY.  ^    2581 


answer  to  this,  we  think,  to  say  that  the  proceeding  in  which  the  point  is 
taken  was  instituted  subsequently  to  the  amendement  which  changed  the  law. 
"There  was  no  vested  right  in  the  bankrupt  to  have  the  law  stand  as  it  was. 
No  one  would  seriously  question  the  right  of  Congress  to  modify  the  law,  and 
sta-te  the  conditions  upon  which  debtors  in  the  future  could  be  discharged  from 
their  indebtedness,  and,  when  the  bankrupt  made  his  application  for  a  dis- 
charge in  this  proceeding,  he  invoked  the  law  as  it  then  was;  and,  under  the 
statute  of  1903,  as  we  view  it,  the  fact  .that  he  had  been  previously  discharged 
from  his  indebtedness  in  a  voluntary  proceeding  within  six  years  was  a  stat- 
utory ground  for  withholding  a  second  discharge  upon  his  own  application  in 
this  subsequent  involuntary  proceeding." 

§  2577.  "Within  Six  Years"  Measures  Time  between  First  and 
Second  Discharge,  Not  Between  First  Discharge  and  Filing  of 
Second  Petition  in  Bankruptcy. — The  expression  "within  six  years" 
measures  the  time  between  a  first  and  second  discharge,  and  not  between 
a  first  discharge  and  the  fiHng  of  a  second  petition  in  bankruptcy.^^^ 

§   2578.   Nor  between   Two   Adjudications   of  Bankruptcy. — Xot 

between  the  tw^o  adjudications  in  bankruptcy,  nor  between  the  fihng  of  the 
two  bankruptcy  petitions. 

§  2579.  Jurisdiction  to  Administer  Estate  Unimpaired  Though 
Discharge  Barred  because  of  Previous  Discharge  within  Six 
Years. — The  bankruptcy  court  has  jurisdiction  to  administer  a  debtor's 
estate,  ahhough  he  has  been  granted  a  discharge  within  six  years,  whether 
a  discharge  is  or  is  not  apphed  for,  or  can  or  cannot  be  granted. ^^-^  In- 
deed, this  bar  does  not  prevent  the  fihng  of  any  number  of  successive  pe- 
titions in  bankruptcy  within  the  six  years.  It  only  prohibits  petitions  for 
discharge.'^^^ 

SUBDIVISION   "n." 

Refusal  to  Obey  Court's  Order  or  to  Answer  Material  Question,  as 

Bar  to  Discharge. 

§  2580.  Refusal  to  Obey  Court's  Order  or  to  Answer  Question,  as 
Bar  to  Discharge. — The  bankrupt's  discharge  will  be  barred,  if,  in  the 
course  of  the  proceedings  in  bankruptcy,  he  has  refused  to  obey  any  law- 
ful order  of,  or  to  answer  any  material  question  approved  by,  the  court. ^^^ 

§  2581.  Refusal  to  Answer  Incriminating  Questions. — Refusal  of 
the  bankrupt  to  answer  material  questions  approved  by  the  referee,  upon 

183.  In  re  Little,  13  A.  B.  R.  640,  137  Fed.  521  (C.  C.  A.  Ills.);  In  re  Jordan, 
15  A.  B.  R.  449,  142  Fed.  292  (D.  C.  Pa.);  In  re  Haase,  17  A.  B.  R.  528  (D.  C. 
N.    Y.). 

184.  In  re  Little,  13  A.  B.  R.  640,  137  Fed.  521   (C.  C.  A.  Ills.). 

185.  Compare,  inferentially.  In  re  Barton's  Estate,  16  A.  B.  R.  578,  144  Fed. 
540    (D.    C.    Ark.). 

186.  Bankr.  Act,  §  14  (b)   (6). 


§  2584  OPPOSITION  TO  discharge;.  1549 

the  ground  that  his  answer  may  tend  to  incriminate  him,  has  been  held  to  be 
a  valid  objection  to  the  bankrupt's  discharge,  under  §  14  (b)  (6).^^" 

In  re  Dresser,  16  A.  B.  R.  563,  146  Fed.  383  (C.  C.  A.  N.  Y.,  affirming  In  re 
Dresser,  13  A.  B.  R.  616,  144  Fed.  318,  Ref.  N.  Y.) :  "The  contention  for  the 
appellant  is  that  to  enforce  clause  6  under  the  circumstances  of  this  case  would 
deprive  the  bankrupt  of  his  constitutional  right  of  immunity  from  self-incrim- 
ination.  The  proceeding  for  a  discharge  is  not  a  criminal  proceeding,  and  the 
constitutional  protection  extends  to  the  protection  of  the  witness  in  criminal 
proceedings  only;  and,  of  course,  it  may  always  be  waived  by  the  witness  him- 
self. We  entertain  no  doubt  that  it  is  within  the  power  of  Congress  to  grant 
or  to  refuse  a  discharge  to  a  bankrupt  upon  such  conditions  as  it  may  deem 
proper.  Such  a  privilege  is  not  a  natural  right,  or  a  right  of  property,  but  is 
a  matter  of  favor  to  be  accepted  upon  such  terms  as  Congress  sees  fit  to 
impose." 

§  2582.  Withholding  Discharge  until  Court  Rules  Complied  with. 

— Even  before  the  amendment  of  1903,  several  cases  maintained  the  pro- 
priety of  withholding  discharge  until  the  forms  and  requirements  of  ad- 
ministration had  been  complied  with.^^'^^  And  one  case  even  denied  a  dis- 
charge altogether,  for  failure  of  the  bankrupt  to  surrender  assets,  although 
he  had  not  concealed  them;^^^  but  this  case  was  of  doubtful  authority. 

Division  4. 
Form  and  Ali^EGations  of  the  Specifications. 

§  2583.  Specifications  of  Objections  to  Discharge,   Pleadings. — 

Specifications  of  objections  to  discharge  are  pleadings. ^''*^ 

And  specifications  must  be  filed  as  a  prerequisite  to  the  introduction  of 
any  evidence  in  opposition  to  discharge.^^^ 

subdivision  "\!' 

Verification  and  Signature. 

§  2584.  Specifications  to  Be  Verified. — Specifications  should  be  ver- 
ified because  they  are  pleadings,  and  by  the  bankruptcy  act  all  pleadings 
must  be  verified. ^^^ 

187.  In  re  Dresser,  13  A.  B.  R.  616,  144  Fed.  318  (Ref.  N.  Y.,  approved  by  D. 
C.  and  C.  C.  A.). 

188.  Ante,  §   2480. 

189.  In  re  Fleishman,  9  A.  B.  R.  557,  120  Fed.  960  (D.  C.  Ills.):  But  this  was 
not  correct  law  at  that  time. 

190.  In  re  Brown,  7  A.  B.  R.  252,  112  Fed.  49  (C.  C.  A.  Tex.);  In  re  Gift,  12  A. 

B.  R.  244,  130  Fed.  230  (D.  C.  Penn.);  In  re  Glass,  9  A.  B.  R.  391,  119  Fed.  520 
(D.  C.  Tenn.);  In  re  Wetmore,  6  A.  B.  R.  703,  102  Fed.  290  (Special  Master, 
N.  Y.);  In  re  Baerncopf,  9  A.  B.  R.  133,  117  Fed.  975  (D.  C.  Pa.);  In  re  Meuer, 
15  A.  B.  R.  823,  144  Fed.  445  (D.  C.  Pa.);  impliedly.  In  re  Hirsch,  2  A.  B.  R. 
715,  96  Fed.  468  (D.  C.  Tenn.);  contra.  In  re  Jamison.  9  A.  B.  R.  681,  120  Fed. 
697   (D.   C.   Ills.);  impliedly.   In   re   Troeder,   17  A.   B.   R.   729,   150   Fed.   710    (C. 

C.  A.    Mass.). 

191.  In  re  Kaiser,  3  A.  B.  R.  767,  99  Fed.  689   (D.  C.  Minn.). 

192.  Bankr.  Act,  §  18  (c).  In  re  Baerncopf,  9  A.  B.  R.  133,  117  Fed.  975  (D. 
C.  Pa.);  In  re  Brown,  7  A.  B.  R.  252,  112  Fed.  49   (C.  C.  A.  Tex.). 


1550  re;mington  on  bankruptcy.  §  2584 

In  re  Gift,  13  A.  B.  R.  244,  130  Fed.  230  (D.  C.  Pa.):  "All  pleadings  setting 
up  matters  of  fact  are  required  by  the  Bankruptcy  Act  to  be  verified,  §  18c; 
and  objections  to  a  discharge — according  to  the  better  opinion — being  of  that 
nature  should  be  made  under  oath." 

In  re  Glass,  9  A.  B.  R.  391,  119  Fed.  520  (D.  C.  Tenn.) :  "So,  also,  the  'spec- 
ification of  grounds  of  opposition  to  bankrupt's  discharge'  (Form  58)  is  either 
an  'answer'  to  the  bankrupt's  petition  for  discharge,  and  therefore  a  'pleading,' 
in  almost  any  sense,  even  the  most  technical,  or  else  it  is  an  independent  peti- 
tion, though  not  such  in  its  form,  asking  the  court  to  deny  to  the  bankrupt  his 
discharge  because  of  the  matters  of  fact  extraneous  to  the  record  set  up  therein 
as  the  grounds  of  the  opposition;  and  in  either  case,  by  all  the  analogies  of 
any  practice,  and  by  the  very  terms  of  the  statute,  it  surely  requires  verifica- 
tion. I  cannot  conceive  of  any  kind  of  'pleading'  which  so  certainly  demands 
a  verification  as  this  'specification  in  writing.'  It  is  to  all  intents  and  pur- 
poses, under  the  statute,  a  criminal  charge,  or  quasi  criminal  at  least;  and, 
while  not  possessing  all  tlif^  elements  or  consequences  of  criminal  information 
or  indictment,  it  is  of  so  grave  a  nature  that,  if  any  'pleading'  in  any  suit  or 
practice  reasonably  demands  verification  by  oath,  that  does  most  of  all.  Crim- 
inal informations  are  verified  by  the  oath  of  the  prosecuting  officer  or  other- 
wise (10  Enc.  PI.  &  Prac.  451);  and  criminal  indictments  are  verified  by  the 
oaths  of  the  grand  jurors.  There  is  nothing  in  the  bankruptcy  record  of  so 
grave  a  nature  as  this,  and  it  goes  to  the  bifurcated  root  of  the  whole  bank- 
ruptcy proceeding;  for,  on  the  one  hand,  the  purpose  is  to  distribute  his  vol- 
untarily or  involuntarily  surrendered  assets,  and,  on  the  other,  to  compensate 
him  by  a  discharge.  The  shadow  of  the  penitentiary  also  falls  on  his  side  of 
the  general  suit,  when  such  charges  are  made;  wherefore  the  reason  for  the 
exaction  of  all  verifications  is  on  the  side  of  requiring  it  to  such  specifications, 
it  seems  to  me.  It  was  not  so  much  under  the  act  of  1867,  perhaps,  though 
it  must  be  admitted  that  this  reasoning  would  have  required  it  under  that  act 
also;  and  it  was  not  demanded  either  by  the  statute  or  by  the  Supreme  Court 
in  its  general  orders  or  forms.  And  this  may  be  the  reason  why  the  act  of 
1898  is  so  broad  in  its  terms  as  expressed  in  §  18c." 

And  this  is  so  notwithstanding  the  Supreme  Court's  prescribed  Form 
No.  58  has  no  verification.^^'" 

But  it  has  also  been  held  that  they  need  not  be  verified,  unless  verification 
is  required  by  rule  of  court. 

In  re  Jamieson,  9  A.  B.  R.  681,  120  Fed.  697  (D.  C.  Ills.):  "In  this  respect 
the  court  follows  the  form  of  objections  prescribed  under  the  act  of  1867. 
These  rules  have  the  same  weight  in  this  case  as  though  they  were  included 
in  the  express  language  of  the  statute.  Such  a  construction  of  the  law  and 
of  the  Supreme  Court  rules  and  forms  is  reasonable  in  its  practical  application. 
The  matters  which  may  be  urged  by  way  of  objections  are  peculiarly  within 
the  knowledge  of  the  bankrupt.  They  may,  and  often  do,  come  to  light  late 
in  the  course  of  the  proceedings.  To  require  the  objector  to  make  positive 
oath  thereto  would  practically  do  away  with  objections  to  discharge.  It  is  a 
matter  of  common  experience  and  knowledge  that  the  successful  interposition 
of  objections  to  discharge  under  the  present  act  is  a  very  difficult  matter.  I 
do  not  deem  it  in  the  interest  of  justice  or  right  to  so  interpret  the  act  as  to 
enlarge  its  facilities  in  this  direction  by  way  of  implication.  The  objections 
are  sufficient  in  brith  form  and  substance. 

193.  In  re  Glass,  9  A.  B.  R.  391,  119  Fed.  520  (D.  C.  Tenn.);  In  re  Gift,  12  A. 
B.  R.  244,  130  Fed.  230  (D.'  C.  Pa.). 


§   2591  OPPOSITION   TO  DISCHARGE.  1551 

§  2585.  But  Lack  of  Verification  May  Be  Waived. — But  lack  of  ver- 
ification is  waived  if  not  objected  to  before  submission  of  the  case  or  con- 
clusion of  the  evidence. 1^^ 

In  re  Baerncopf,  9  A.  B.  R.  133,  117  Fed.  975  (D.  C.  Pa.):  "The  bankrupt 
took  no  exception  to  the  signature,  or  to  the  lack  of  an  affidavit,  however, 
until  after  the  testimony  had  all  been  taken  and  argument  thereon  before  the 
referee  had  begun.     This  failure  to  except  in  proper  time  waived  the  defcts." 

And  is  probably  waived  by  merely  going  into  the  taking  of  the  evidence 
on  the  hearing.  Lack  of  proper  jurat  may  not  be  raised  as  an  objection 
for  the  first  time  on  petition  to  review. ^^^ 

§  2586.  Or  Be  Supplied  by  Amendment. — And  lack  of  verification 
may  be  supplied  by  amendment. ^''^ 

§  2587.  Where  Several  Objecting  Creditors,  All  May  Sign  .and 
Verify  Same  Specifications. — Several  creditors  may  sign  and  verify 
the  same  specifications  of  objections  to  discharge. ^^" 

§  2588.  Whether  if  Several  Join  in  Same,  Each  Must  Sign  and 
Verify. — If  there  be  several  opposing  creditors  in  the  same  specifications, 
it  has  been  held    that  each  must  sign  and  verify. ^^^ 

§  2589.  Whether  Verification  by  Some  One  with  Knowledge  Req- 
uisite.— It  has  been  held  that  the  verification  should  be  made  by  some 
one  who  has  sufficient  knowledge  of  the  facts  to  make  the  affidavit. ^^^^ 

§  2590.  Verification  by  Attorneys  Permitted. — Aerification  by  attor- 
neys in  fact  or  attorneys  at  law  is  permitted.-"" 

This  is  so  because  ''creditor"  includes  "attorney"  under  the  definitions 
of  the  Bankruptcy  Act.201 

But  the  reason  why  the  creditor  himself  does  not  verify  should  be 
given. 20  2 

§  2591.  Forms  of  Verification. — In  general,  it  is  pro'^)er  fur  the  ver- 
ification to  be  in  the  form  prescribed  by  the  creditor's  petition  (Form  No. 

194    In  re  Robinson,  10  A.  B.  R.  477,  123  Fed.  8U  (D.  C.  R.  I.). 

195.  Godshalk  v.   Sterling,  12  A.   B.   R.  302.   129   Fed.  360    (C.   C.  A.   Penn.). 

196.  In  re  Meuer,  15  A.  B.  R.  823,  144  Fed.  14.5  (D.  C.  Pa.);  In  re  Gift, 
12  A.  B.  R.  244,  130  Fed.  230  (D.  C.  Penn.);  In  re  Glass,  9  A.  B.  R.  391,  119 
Fed.  520  (D.  C.  Tenn.). 

197.  In  re   Milgraum  v.   Ost,   12  A.   B.   R.   306,   129   Fed.   827    (D-   C.   Pa.), 
re    Baerncopf,   9   A.    B.    R.   133,    117   Fed.   975    (D.    C.    Pa.). 

198.  In  re  Glass,  9  A.  B.  R.  391,  119  Fed.  520  (D.  C.  Tenn.);  but  compare,  In 
re  Baerncopf,  9  A.  B.  R.  133,  117  Fed.  975  (D.  C.  Pa.). 

199.  In  re  Baerncopf,  9  A.  B.  R.  133,  117  Fed.  975  (D.  C.  Pa.). 

200.  In  re  Milgraum  t'.  Ost,  12  A.  B.  R.  306  (D.  C.  Pa.). 

201.  In  re  :\Iilgraum  z:  Ost,  12  A.  B.  R.  306   (D.   C.  Pa.). 

202.  In  re  Baerncopf,  9  A.  B.  R.  133,  117  Fed.  975  (D.  C.  Pa.-);  In  re  Glass, 
9  A.   B.   R.  391,  119   Fed.   520   (D.   C.   Tenn.). 


1552  REMINGTON    ON   BANKRUPTCY.  §    2595 

3),  to  wit:  "Do  hereby  make  solemn  oath  that  the  statements  contained  in 
the  foregoing  specification  of  grounds  of  opposition  to  the  bankrupt's  dis- 
charge subscribed  by  him  (or  them)-  are  true."-'^'^ 

§  2592.  Whether  Verification  Must  Be  Positive  or  May  Be  on  In- 
formation and  Belief. — It  is  a  question  whether  the  verification  must  be 
positively  sworn  to  or  may  be  on  information  and  behef.  That  it  must  be 
positive,  see 

In  re  Brown,  7  A.  B.  R.  252,  112  Fed.  49  (C.  C.  A.  Tex.):  "A  verification  of 
such  opposition  seems  to  be  required  to  prevent  frivolous  objections  and  waste 
of  time,  and  we  think  that  such  opposition  is  within  the  intent  and  meaning  of 
§  18c  of  the  Bankrupt  Act  of  1898.  If  a  verification  of  the  opposition  is  re- 
quired, it  should  be  positive  and  certain,  not  vague  and  argumentative." 

But  it  has  also  been  held  that  verification  "to  the  best  of  affiant's  knowl- 
edge, information  and  belief,"  is  sufficient.-"-* 

§  2593.  Specifications  to  Be  Signed. — The  specifications  must  be 
signed  ;2*^^  but  such  signing  may  be  waived.-''*' 


Essential  Allegations  of   SrEciFiCATiONS  and   Manner   oe   Making 

Them-. 

§  2594.  Specifications  to  Show  Capacity  of  Objecting  Creditor. — 

The  specifications  should  show  the  capacity  of  the  objecting  party,  that  he 
is  a  party  in  interest,  and  the  facts  constituting  him  such.-*'''' 

In  re  Servis,  15  A.  B.  R.  271,  140  Fed.  222  (D.  C.  Iowa):  "Should  also  al- 
lege facts  showing  that  the  party  filing  the  specification  will  be  affected  by 
the  discharge  (e.  g.,  that  his  debt  is  a  dischargeable  debt),  and  is  therefore  in- 
terested in  defeating  the  same." 

§  2595.  All  Essential  Facts  and  Elements  of  Bar  to  Discharge,  to 
Be  Alleged. — The  specifications  must  allege  the  essential  facts  and  all 
the  elements  constituting  the  bar  to  the  discharge.-*^' ^ 

In  re  Quackenbush,  4  A.  B.  R.  274,  102  Fed.  282  (Ref.  N.  Y.,  affirmed  by  D. 
C):  "It  has  been  uniformly  held  that  adequate  specifications   of  objections  to 

203.  In  re  Glass,  9  A.  B.  R.  391,  119  Fed.  509  (D.  C.  Pa.). 

For  form  of  verification  by  corporation,  see  In  re  Glass,  9  A.  B.  R.  391,  119 
Fed.    520    (D.    C.   Tenn.). 

By  partnership,  see  In  re  Glass,  9  A.  B.  R.  391,  119  Fed.  509  (D.  C.  Tenn.). 

By  attorney,  see  In  re  Glass,  9  A.  B.  R.  391,  119  Fed.  509  (D.  C.  Tenn.);  In 
re   Peck,  9   A.   B.    R.   747,   120    Fed.   972    (D.    C.    Conn.). 

204.  Milgraum  v.    Ost,   12  A.    B.   R.   306,   129   Fed.   827    (D.    C.    Penn.). 

205.  In   re   Baerncop'f,  9   A.   B.   R.   133,   117   Fed.   975    (D.    C.    Pa.). 

206.  In  re  Baerncopf,  9  A.  B.  R.  133,  117  Fed.  975  (D.  C.  Pa.). 

207.  See  ante,  "Who  May  Oppose  Discharge,"  §  2457,  et  seq. 

208.  In  re  Rhutassel,  2  A.  B.  R.  697,  96  Fed.  597  (D.  C.  Iowa) ;  In  re  Blalock, 
9  A.  B.  R.  266  (D.  C.  S.  C.);  instance.  In  re  Wetmore,  6  A.  B.  R.  704,  102  Fed. 
290  (Ref.  N.  Y.);  inferentially.  In  re  McGurn,  4  A.  B.  R.  461,  102  Fed.  743  (D. 
C.  Xev.);  In  re  Mudd;  5  A.  B.  R.  242,  105  Fed.  348  (D.  C.  Mo.);  In  re  Adams,  4 
A.  B.  R.  696,  104  Fed.  72  (D.  C.  N.  Y.)  ;  In  re  Pierce,  4  A.  B.  R.  489,  103  Fed  64 
(D.  C.  Wash.);  In  re  Levey,  13  A.  B.  R.  312  (D.  C.  N.  Y.). 


§   2596  OPPOSITION   TO  DISCHARGE.  1553 

discharge  must  include  every  element  which  the  statute  prescribes  as  contrib- 
uting to  the  offense  condemned,  and  must  state  issuable  facts." 

In  re  Hirsch,  2  A.  B.  R.  715,  96  Fed.  468  (D.  C.  Tenn.) :  "There  must  be  a 
distinct  averment  of  the  facts  bringing  the  case  within  the  specific  denunci.-- 
tion  of  the  statute  and  nothing  else  will  do." 

In  re  Kaiser,  3  A.  B.  R.  767,  99  Fed.  689  (D.  C.  Minn.):  "The  scienter  must 
be  charged,  and  also  all  essential  facts  necessary  to  establish  the  commission 
of  the  offense." 

In  re  Peacock,  4  A.  B.  R.  136,  101  Fed.  560  (D.  C.  N.  Car.):  "In  short,  the 
objections  seem  to  have  been  made  on  general  principles,  without  any  regard 
to,  or  examination  of,  the  bankruptcy  law.  This  is  not  sufficient.  To  defeat 
the  purposes  of  the  act,  the  objections  to  discharge  should  be  in*  strict  com- 
pliance with  its  provisions." 

In  re  Frice,  2  A.  B.  R.  676,  96  Fed.  611  (D.  C.  Iowa):  "If  counsel  preparing 
these  objections  had  read  the  Bankruptcy  Statute,  or  only  consulted  the  sec- 
tion relating  to  discharges,  he  could  not  have  failed  to  note  that  this  section 
points  out  only  two  grounds  [before  Amendment  of  1903]  as  justifying  with- 
holding discharge,  and  commands  the  court  to  grant  discharge  unless  one  of 
these  two  grounds  is  proven.  He  could  scarcely  fail  to  notice,  if  that  section  be 
now  consulted  by  him,  that  the  matters  attempted  (as  we  assume)  to  be  stated 
by  him,  are  not  embraced  within  either  of  these  grounds." 

§  2596.  "Knowingly  and  Fraudulently"  to  Be  Alleged  Where  Act 
Charged  Is  an  "Offense." — Where  the  act  alleged  is  the  commission  of 
one  of  the  offenses  prohibited  by  the  Bankrupt  Act,  it  must  be  alleged  to 
have  been  done  "knowingly  and  fraudulently. "-"^ 

In  re  Patterson,  10  A.  B.  R.  371,  121  Fed.  921  (D.  C.  N.  Y.) :  "It  will  be 
noted  that  the  act  is  explicit  in  defining  the  offenses  mentioned  in  subd.  'b' 
of  §  29.  The  acts  constituting  the  offenses  against  the  law  must  have  been 
'knowingly  and  fraudulently'  done,  and  specification  of  objections  that  do  not 
charge  that  the  false  oath  in  the  bankruptcy  proceedings  was  knowingly  and 
fraudulently  made,  are  not  sufficient." 

Thus,  as  to  concealment  of  assets  the  acts  complained  of  must  be  alleged 
to  have  been"  done  "knowingly  and  fraudulently."2io  Thus,  also,  as  to 
the  perpetration  of  false  oaths. ^^ 

209.  In  re 'Wetmore,  6  A.  B.  R.  703,  102  Fed.  290  (Special  Master  N.  Y.);  In 
re  Keefe,  4  A.  B.  R.  126;  In  re  Quackenbush,  4  A.  B.  R.  281,  102  Fed.  283 
(Special  Master  N.  Y.);  In  re  Kaiser,  3  A.  B.  R.  767,  99  Fed.  689  (D.  C.  Minn.); 
In  re  Bryant,  5  A.  B.  R.  114,  104  Fed.  789  (D.  C.  Tenn.) ;  obiter.  In  re  Levey,  13 
A.  B.  R.  317,  133  Fed.  572  (D.  C.  N.  Y.) ;  In  re  Hirsch,  2  A.  B.  R.  715,  96  Fed. 
468  (D.  C.  Tenn.):  In  re  Taplin,  14  A.  B.  R.  360,  135  Fed.  861  (D.  C.  Iowa); 
In  re  Parish,  10  A.  B.  R.  548,  122  Fed.  553  (D.  C.  Iowa);  impliedly.  In  re 
Knaszak,  18  A.  B.  R.  189,  151  Fed.  503  (D.  C.  N.  Y.). 

210.  In  re  Peck,  9  A.  B.  R.  747,  120  Fed.  972  (D.  C.  Conn.);  In  re  :Mudd,  5 
A.  B.  R.  242,  105  Fed.  348  (D.  C.  Mo.);  In  re  Frice,  2  A.  B.  R.  674,  96  Fed.  611 
(D.  C.  Iowa);  In  re  Hirsch,  2  A.  B.  R.  715,  96  Fed.  468  (D.  C.  Tenn.);  In  re 
Kaiser,  3  A.  B.  R.  767,  99  Fed.  689  (D.  C.  Minn.);  In  re  Pierce,  4  A.  B.  R.  554, 
103  Fed.  64  (D.  C.  N.  Y.) ;  In  re  Taplin,  14  A.  B.  R.  360,  135  Fed.  861  (D.  C. 
Iowa);  In  re  Patterson,  10  A.  B.  R.  371,  121  Fed.  921  (D.  C.  N.  Y.) ;  In  re  Knas- 
zak, 18  A.  B.  R.  189,  151  Fed.  503  (D.  C.  N.  Y.) ;  In  re  Parish,  10  A.  B.  R.  548, 
122  Fed.  553  (D.  C.  Iowa). 

211.  Ky.  Nat.  Bk.  of  Louisville  v.  Carley,  12  A.  B.  R.  119,  127  Fed.  686  (C.  C. 
A.  N.  J.);  In  re  Bryant,  5  A.  B.  R.  114,  104  Fed.  789  (D.  C.  Tenn.);  In  re  Pat- 

2  Rem  B— 23 


1554  re;mington  on  bankruptcy.  §  2600 

But  the  omission  is  waived  by  going  to  trial  upon  the  merits  without  ob- 
jection ;2i2  and  the  defect  is  amendable  upon  seasonable  application.^is 

But  such  allegation  is  not  necessary  at  *all  when  the  act  alleged  is  a 
fraudulent  conveyance  within  the  four  months  preceding  bankruptcy,  under 
the  amendment  of  1903;^^^  although  of  course  the  conveyance  must  be 
alleged  to  have  been  made  fraudulently. 

§  2597.  If  Act  Charged  Is  an  "Offense,"  Must  Appear  to  Have 
Been  Committed  after  Bankruptcy,  etc. — AMiere  the  ground  of  oppo- 
sition is  the  commission  of  one  of  the  offenses  punishable  by  imprisonment 
by  the  Bankrupt  Act,  the  allegations  must  show  that  the  offense  charged  was 
committed  after  the  proceedings  in  bankruptcy  were  commenced,  and  in 
the  case  of  alleged  fraudulent  concealment  of  assets,  that  it  was  committed 
after  the  appointment  of  a  trustee ;  otherwise,  the  allegations  will  not 
bring  the  case  within  the  statute.^^^ 

This  does  not  mean  that  all  the  evidentiary  facts  to  prove  the  commission 
of  the  offense  must  have  occurred  after  the  bankruptcy  proceedings  were 
instituted.  The  initial  facts  generally  have  occurred  beforehand ;  but  the 
concealment  charged  and  proved  must  be  a  concealment  from  the  trustee, 
and  the  false  oath  charged  and  proved  must  be  a  false  oath  in  a  bankruptcy 
proceedings. 

§  2598.  Acts  Charged,  to  Be  Brought  within  Time  Limit. — The  acts 
charged  must  be  brought  within  the  time  limit,  if  there  be  a  time  limited 
therefor.216 

§  2599.   Distinct  Grounds  May  Be  Joined  in  One  Specification. — 

Several  distinct  grounds  of  opposition  may  be  alleged  in  one  specification. 

§  2600.  But  Each  Ground  to  Be  Separately  Stated. — But  each 
ground  of  opposition  must  be  separately  stated. 2^" 

terson,  19  A.  B.  R.  371,  121  Fed.  921  (D.  C.  N.  Y.) ;  In  re  Taplin,  14  A.  B.  R. 
360,  135  Fed.  861  (D.  C.  Iowa);  In  re  Blalock,  9  A.  B.  R.  266,  118  Fed.  679  (D. 
C.  Iowa);  In  re  Beebe,  8  A.  B.  R.  597,  116  Fed.  48  (D.  C.  Penn.) ;  In  re  Peck,  9 
A.  B.  R.  747,  120  Fed.  972  (D.  C.  Penn.);  inferentially.  In  re  Osborne,  8  A.  B.  R. 
165,  115  Fed.  1  (C.  C.  A.  Mass.);  In  re  Knaszak,  18  A.  B.  R.  189,  151  Fed.  503 
(D.  C.  N.  Y.). 

212.  In  re  Osborne,  8  A.  B.  R.  165  (C.  C.  A.  Mass.).  Obiter,  contra.  In  re 
Taplin,  14  A.  B.  R.  361  (D.  C.  Iowa). 

213.  In  re  Knaszak,  18  A.  B.  R.  189,  151  Fed.  503  (D.  C.  N.  Y.). 

214.  In  re  Gift,  12  A.  B.  R.  244,  130  Fed.  230  (D.  C.  Penn.). 

215.  In  re  Patterson,  10  A.  B.  R.  371.  121  Fed.  921  (D.  C.  N.  Y.).  Inferen- 
tially, obiter.  In  re  Steed  &  Curtis,  6  A.  B.  R.  73,  107  Fed.  682  (D.  C.  N.  Car.). 

It  is  also  a  question  whether  misconduct  of  the  bankrupt  in  a  former  bank- 
ruptcy is  a  bar.  Obiter,  see  In  re  Feigenbaum,  9  A.  B.  R.  597,  121  Fed.  69  (C. 
C.  A.  N.  Y.).     See  ante,  §  2476. 

216.  In  re  Steed  &  Curtis,  6  A.  B.  R.  73,  107  Fed.  682  (D.  C.  N.  Car.). 

217.  In  re  Wetmore,  6  A.  B.  R.  703,  102  Fed.  290  (Special  Master  N.  Y.). 


§   2603  OPPOSITION  TO  DISCHARGE,  1555 

§  2601.  All  Grounds  Need  Not  Be  Sustained. — And  all  the  grounds 
need  not  be  sustained.  The  discharge  will  be  refused  if  any  one  is  sus- 
tained. 

Hudson  V.  Mercantile  Nat'l  Bk.,  9  A.  B.  R.  432,  119  Fed.  346  (C.  C.  A.  Colo.): 
"If  any  one  of  the  numerous  specifications  in  opposition  to  the  bankrupt's 
discharge  is  well  pleaded  and  is  sustained  by  the  evidence,  it  follows,  of  course, 
that  the  order  refusing  a  discharge  must  be  affirmed,  since  it  is  not  required 
of  any  one  who  objects  to  a  bankrupt's  discharge  that  he  shall  maintain  all 
of   his   specifications   in    opposition   thereto." 

§  2602.  Specifications  Not  to  Be  Used  as  "Dragnet"  or  "Fishing 
Expedition." — Specifications  should  not  be  used  as  a  dragnet  or  as  a 
cover  for  a  '"fishing  expedition;"  for  abundant  opportunity  is  afiforded  for 
discovery  by  the  "general  examination"  of  the  bankrupt  and  witnesses; 
and  no  good  reason  seems  to  exist  for  not  producing  evidence  directly  to 
the  point.2is 

In  re  Hirsch,  2  A.  B.  R.  720,  96  Fed.  468  (D.  C.  Tenn.):  "The  law  affords 
ample  opportitnity,  by  examination  of  the  bankrupt  and  otherwise,  to  enable 
the  creditors  to  disclose  the  actual  facts;  and,  while  it  will  not  be  required  that 
the  evidence  shall  be  put  in  the  pleadings,  it  should  be  required,  in  all  justice, 
and  in  accordance  with  the  ordinary  rules  of  penal  or  criminal  as  well  as  of 
civil  procedure  of  that  kind  which  charges  fraud,  that  the  facts  must  be  stated, 
and  not  mere  epithetical  conclusions  of  fact,  as  is  too  common  in  pleadings  of 
this  character." 

In  re  Hixon,  1  A.  B.  R.  613,  93  Fed.  440  (D.  C.  Iowa):  "Abundant  op- 
portunity is  given  for  the  examination,  under  oath,  of  the  bankrupt  at  the 
first  meeting  of  creditors,  and  afterwards  at  the  time  by  the  referee  fixed  for 
filing  written  appearance  of  credifors  (paragraph  1  of  Rule  XII),  thus  enabling 
the  creditor  to  secure  the  opportunity  of  a  second  examination  of  the  bank- 
rupt in  the  light  of  such  facts  as  the  creditor  may  have  learned  after  said  first 
meeting.  No  doubt,  upon  a  proper  showing,  the  referee  would  provide  op- 
portunity for  examination  of  the  bankrupt  between  these  two  meetings.  Thus 
the  creditor  ha?  at  his  command  abundant  opportunity  to  ascertain  particular 
and  specific  facts  on  which  to  base  whatever  opposition  he  desires  to  make  to 
the  discharge  of  the  bankrupt.  If,  on  such  examination,  the  sworn  testimony  of 
the  bankrupt  discloses  facts  whose  existence  would  prevent  such  discharge,  the 
creditor  is  afforded  ready  opportunity  to  specify  and  present  same.  If,  however, 
such  sworn  testimony  is  claimed  to  be  materially  false  and  the  creditor  can 
prove  the  truth,  then  such  creditor  can  readily  specify  the  particulars  whereia 
such  false  oat^i  is  alleged  so  that  court  and  bankrupt  may  easily  comprehend 
same.  The  same  general  suggestions  are  correct  as  to  the  other  grounds  whose 
proven  existence  would  defeat  discharge.  But  it  is  incumbent  on  the  creditor 
to  assert  and  prove  the  existence  of  facts  sufficient,  under  the  statute,  to  de- 
feat discharge.     On  the  creditor  is  the  burden  of  probf." 

§  2603.  Must  Not  Be  Indefinite  nor  General  nor  Argumentative, 
but  Certain  and  Positive. — The  specifications  must  not  be  indefinite  nor 
general,  but  certain,  positive  and  specific. "^^ 

218.  In  re  Mudd,  5  A.  B.  R.  242,  105  Fed.  348  (D.  C.  Mo.);  In  re  Peck,  9  A. 
B.  R.  947,  120  Fed.  972  (D.  C.  Conn.). 

219.  In  re  Peacock,  4  A.  B.  R.  136,  101  Fed.  560  (D.  C.  N.  C.) ;  In  re  Blalock, 
9  A.  B.  R.  266,  118  Fed.  679   (D.  C.  S.   C.) ;   In  re  Wolfensohn,  5  A.  B.   R.  60 


1556  REMINGTON  ON  BANKRUPTCY.  *?   2603 

In  re  :\IcGurn,  4  A.  B.  R.  459,  102  Fed.  743  (D.  C.  Xev.) :  "Specifications  in 
opposition  to  a  bankrupt's  application  for  a  discharge,  and  the  proofs  in 
support  thereof,  should  be  clear,  positive,  and  direct.  The  opposing  creditor 
or  creditors  must  distinctly  allege  and  prove  one  (or  more)  of  the  statutory 
grounds  for  refusing  a  discharge." 

In  re  Servis.  15  A.  B.  R.  271,  140  Fed.  222  ( D.  C.  Iowa):  "The  specification 
should  distinctly  allege  the  particular  grounds  relied  upon  to  defeat  the  dis- 
charge, so  as  to  advise  (1)  the  bankrupt  of  the  grounds  relied  upon,  in  order 
that  he  maj-  prepare  to  meet  the  same,  and  (2)  the  court  of  the  issue  to  be 
tried." 

In  re  Hirsch,  2  A.  B.  R.  715,  97  Fed.  571  (D.  C.  Tenn.):  "They  do  not  yet 
set  out  how  thfc  property  has  been  concealed  from  the  creditors  or  trustee,  nor 
how  the  books  have  been  concealed  or  destroyed,  unless  it  may  be  said  that  the 
pleading  goes  upon  the  ground  that  the  mere  fact  that  the  property  was  not 
put  upon  the  schedules  is,  of  itself,  conclusive  evidence  of  such  concealment  as 
is  denounced  by  the  statute,  both  criminally,  and  as  a  ground  for  withholding 
the  discharge,  and  that  the  mere  nonproduction  of  the  books  on  demand  is. 
conclusive  of  their  destruction  or  concealment.  It  is  well  enough  to  notify 
attorneys  that,  where  objection  is  made,  the  court  will  insist  that  the  specifica- 
tions in  opposition  to  a  discharge  shall  notify  the  bankrupt  of  the  conduct  on 
his  part  which  is  relied  upon  for  denying  the  discharge  to  him,  and  mere  gen- 
eral charges  or  'fishing'  specifications  will  not  suffice.  The  law  afifords  ample 
opportunity,  by  examination  of  the  bankrupt  and  otherwise,  to  enable  the 
creditors  to  disclose  the  actual  facts;  and,  while  it  will  not  be  required  that 
the  evidence  shall  be  put  in  the  pleadings,  it  should  be  required,  in  all  justice, 
and  in  accordance  with  the  ordinary  rules  of  penal  or  criminal  as  well  as  of 
civil  procedure  of  that  kind  which  charges  fraud,  that  the  facts  must  be  stated, 
and  not  mere  epithetical  conclusions  -of  fact,  as  is  too  common  in  pleadings  of 
this  character.  A  sufficient  pleading  by  averring  the  facts  would  disclose  the 
character  of  the  transaction,  without  any  use  at  all  of  the  denunciatory  words, 
and  yet  be  completely  within  the  impeachment  of  the  statute.  To  say  that  a 
bankrupt  has  Knowingh'  and  fraudulently  concealed  a  thing  is  only  to  accuse 
by  calling  names,  and  is  not  pleading  a  fact.  On  the  face  of  these  specifica- 
tions nothing  appears.  It  is  said  that  the  bankrupt  is  the  sole  owner  of  a  cer- 
tain stock  of  goods  described  in  the  specifications.  But  how  has  he  concealed 
it?  The  specification  does  not  inform  us.  We  can  see  from  the  proof  w^hat 
the  creditors  probably  mean,  but  the  pleading  should  require  no  such  aid  from 
the  proof.  The  evidence  should  support  the  averments  of  the  plea  by  proving 
them,  but  it  cannot  supplj^  the  necessary  averments  of  a  pleading." 

In  re  Hixon,  1  A.  B.  R.  613,  93  Fed.  440  (D.  C.  Iowa):  "Indeed  these  charges 
cannot,  in  any  proper  sense,  be  termed  'specification'  but  are  plainly  and  grossly 
generalization." 

In  re  Parish,  10  A.  B.  R.  548,  122  Fed.  553  (D.  C.  Iowa):  "Furthermore,  the 
facts  relied  on  must  be  stated  with  reasonable  particularity.  In  this  case  the 
realty  claimed  to  belong  to  the  bankrupt,  but  by  him  concealed  from  his  trustee, 
should  be  described,  together  with  the  names  of  the  persons  holding  the  title. 


(Special  Master  N.  Y.) ;  In  re  Mudd.  5  A.  B.  R.  242,  105  Fed.  348  (D.  C.  Mo.'>; 
In  re  Steed  &  Curtis,  6  A.  B.  R.  73,  107  Fed.  682  (D.  C.  X.  C);  In  re  Holman.  1 

A.  B.  R.  604,  92  Fed.  512  (D.  C.  Iowa);  In  re  McNamara.  2  A.  B.  R.  578  (Special 
Master  N.  Y.) ;  In  re  Peck,  9  A.  B.  R.  747.  120  Fed.  972  (D.  C.  Conn.);  In  re 
Wetmore,  6  A.  B.  R.  703,  102  Fed.  290  (Special  Master  X.  Y.);  In  re  Price,  2  A. 

B.  R.  675,  96  Fed.  611  (D.  C.  Iowa).  To  same  efifect,  analogously,  In  re  White, 
14  A.  B.  R.  241   (D.  C.  Penn.). 


§    2604  OPPOSITIOX  To  DISCHARGE.  1557 

the  time  of  the  transfer,  and  any  other  facts  necessary  to  identify  the  trans- 
action." 

In  re  Ginsburg,  12  A.  B.  R.  461,  130  Fed.  627  (D.  C.  Pa.):  "We  find  that 
the  second,  third  and  fourth  specifications  or  objections  must  be  dismissed  for 
the  reason  that  they  are  fatally  defective  in  failing  to  specify  what  property 
was  transferred,  removed,  destroyed,  and  concealed,  or  wherein  the  said 
Ginsburg  made  a  false  oath  as  to  the  amount  of  his  assets  while  under  examina- 
tion before  the  referee." 

In  re  Troeder,  17  A.  B.  R.  729,  150  Fed.  710  (C.  C.  A.  Mass.):  "*  *  *  the 
practice  with  reference  thereto  is  settled  in  accordance  with  the  fundamental 
principles  of  pleading,  although  not  according  to  strict  rules,  and  to  the  effect 
that  the  allegations  must  be  specific  and  of  such  a  character  that  their  sufficiency 
may  be  met  by  demurrer,  or  by  exceptions  analogous  to  those  allowed  in 
equity." 

Obiter,  In  re  Rauchenplat,  9  A.  B.  R.  763,  1  P.  R.  471  (D.  C.  Porto  Rico): 
"Specifications  must  be  clear  and  definite,  not  vague  and  general." 

Thus,  as  to  a  charge  of  false  oath,  the  referring  to  the  stenographer's 
notes  for  the  details  of  the  false  swearing  is  insufficient  ;22o  also  the  failure 
to  specify  wherein  the  amount  of  his  assets  was  falsely  sworn  to  on  general 
examination. 221  Thus,  as  to  a  charge  of  obtaining  property  on  credit  on  a 
false  statement  in  writing,  not  only  must  the  false  representations  be  set 
out,  but  the  name  of  the  person  defrauded  must  be  given. 222 

Likewise,  as  to  a  charge  of  fraudulent  concealment  of  property,  the 
property  itself  must  be  described  in  such  manner  that  it  may  be  identi- 
fied ;223  and  the  ultimate  acts  of  concealment  must  be  pleaded. 22^ 

In  re  Hirsch,  2  A.  B.  R.  71.5,  97  Fed.  571  (D.  C.  Tenn.):  "But  how  has  he 
concealed  it?  The  specification  does  not  inform  us.  We  can  see  from  the 
proof  what  the  creditors  probably  mean,  but  the  pleading  should  require  no 
such  aid  from  the  proof.  The  evidence  should  support  the  averments  of  the 
plea  by  proving  them,  but  it  cannot  supply  the  necessary  averments  of  a  plead- 
ing." 

Likewise,  as  to  books  of  account,  if  the  charge  is  of  concealment  or  de- 
struction, the  books  must  be  described. 225 

§  2604.  No  Greater  Definiteness  Necessary  than  Nature  of  Facts 
Requires. — But  no  greater  definiteness  is  necessary  than  the  nature  of  the 
case  or  of  the  facts  requires. 22^ 

220,  In  re  Goodale,  6  A.  B.  R.  493,  109  Fed.  783  (D.  C.  N.  Y.). 

221,  In  re  Ginsburg.  12  A.  B.  R.  461,  130  Fed.  627  (D.  C.  Pa.). 

222,  In  re  Levy,  13  A.  B.  R.  310,  133  Fed.  572  (D.  C.  N.  Y.). 

223,  Instance  held  too  indefinite.  In  re  Mudd,  5  A.  B.  R.  242,  105  Fed.  348  (D. 
C.  Mo.);  instance  held  too  indefinite.  In  re  Ginsburg,  12  A.  B.  R.  461,  130  Fed. 
627   (D.   C.   Pa.). 

224,  In  re  Frice,  2  A.  B.  R.  675,  96  Fed.  611  (D.  C.  Iowa). 

225,'  Instance  held  sufficiently  definite,  Goc^shalk  v.  Sterling,  12  A.  B.  R.  302, 
129  Fed.  5*80  (C.  C.  A.  Penn.) :  In  this  case  the  property  and  act  were  described 
to  be  "voucher,  to  wit:  canceled  checks  and  check  stubs,  through  the  agency  of 
the  regularly  authorized  bookkeeper." 

Instance  held  indefinite,  Milgraum  z:  Ost,  12  A.  B.  R.  306,  129  Fed.  827  (D. 
C.  Penn.). 

226,  Bragassa  v.  St.  Louis  Cycle  Co..  5  A.  B.  R.  700,  107  Fed.  77  (C.  C.  A. 
Tex.);  instance,  Milgraum  v.  Ost,  12  A.  B.  R.  306,  129  Fed.  827  (D.  C.  Penn.). 


1558  REMINGTON    ON   BANKRUPTCY.  ^    2608 

§  2605.  Whether  to  Be  Pleaded  "with  Certainty  of  Indictment" 
Where  "Offense"  Charged. — Some  courts  have  held,  that  where  the 
ground  of  opposition  is  the  commission  of  one  of  the  offenses  punishable 
by  imprisonment,  the  allegations  must  be  substantially  as  certain  as  in  a 
criminal  indictment. ^-^ 

In  re  Hirsch,  2  A.  B.  R.  717,  96  Fed.  468  (D.  C.  Tenn.) :  "Substantially,  the 
pleading  must  be  as  specific  as  a  criminal  information  or  indictment." 

§  2606.  Evidence  Not  to  Be  Pleaded. — Evidence  should  not  be 
pleaded. 22S 

Obiter,  In  re  Troeder,  17  A.  B.  R.  729,  150  Fed.  710  (C.  C.  A.  Mass.):  "We 
find  incorporated  in  the  specifications  what  amounts  to  15  printed  pages  of 
extracts  from  the  bankrupt's  examination,  including  what  appears  there  as  so- 
-called direct-examination  and  what  appears  there  as  so-called  cross-examination, 
in  the  precise  form  in  which  it  was  taken  down  by  the  referee.  There  are  no 
allegations  setting  out  specifically  any  false  oath,  or  explaining  its  materialty 
and  relevancy,  according  to  any  rules  of  pleading  in  proceedings  at  law.  Thus 
this  portion  of  the  specifications  is  clearly  insufficient." 

Thus,  it  would  not  be  proper  to  plead  the  evidence  proving  the  fraud- 
ulent intent  in  concealment,  so  long  as  the  property  and  the  acts  constitut- 
ing the  concealment  are  described. 

§  2607.  Legal  Conclusions  Not  to  Be  Pleaded. — Legal  conclusions 
are  not  to  be  pleaded. -^^ 

§  2608.  Thus,  Allegations  in  Mere  Words  of  Statute  Sufficient 
Only  Where  Failure  to  Keep  Books,  Ground  Charged — Elsewhere 
Insufficient. — Allegations  in  the  mere  words  of  the  statute  are,  in  one  in- 
stance, to  wit,  failure  to  keep  any  books  of  account  or  records  whatsoever, 
sufficient. 230 

Godshalk  v.  Sterling,  12  A.  B.  R.  302,  129  Fed.  580  (C.  C.  A.  Penn.):  "*  *  * 
the  objecting  creditor  need  not  specify  what  books  of  account  the  bankrupt 
should  have  kept." 

In  re  Ginsburg,  12  A.  B.  R.  459,  130  Fed.  627  (D.  C.  Penn.):     "This  is  charged 
in  the  language  of  the  Act,  and  states   all   that   is   required   in   setting  it   forth.  • 
No  further  particulars  could  be  given." 

In  re   Patterson,  10  A.   B.   R.  371,  121   Fed.  921   (D.   C.   N.   Y.) :     "As  to  the 

227.  In  re  Taplin,  14  A.  B.  R.  361,  135  Fed.  861  (D.  C.  Iowa);  In  re  Levey,  13 
A.  B.  R.  312,  133  Fed.  572  (D.  C.  N.  Y.);  In  re  Quackenbush,  4  A.  B.  R.  274, 
102   Fed.   282    (D.   C.   N.   Y.). 

Obiter  (almost  with  the  exactness  of  an  indictment).  In  re  Wetmore,  6  A.  B. 
R.  703,  102  Fed.  290  (Spec.  Master  N.  Y.). 

Contra,  In  re  Kaiser,  3  A.  B.  R.  767,  99  Fed.  689  (D.  C.  Minn.):  But  "not 
necessarily  with  the  technical  certainty  required  of  an  indictment." 

228.  Instance  where  pleaded  and  held  to  be  improper,  In  re  Frice,  2  A.  B 
R.  675,  96  Fed.  611  (D.  C.  Iowa).    Also  compare  ante,  §  1767. 

229.  Compare,  similarly,  §§  252,  1767. 

230.  In  re  Levy,  13  A.  B.  R.  310,  133  Fed.  572  (D.  C.  N.  Y.).  Obiter,  In  re 
Peck,  9  A.  B.  R.  750,  120  Fed.  972  (Ref.  Conn.).  Apparently,  contra.  In  re 
McNamara,  2  A.  B.  R.  576  (Special  Master  N.  Y.). 


§    2608  OPPOSITION  TO  DISCHARGE.  1559 

fourth  specification  of  objection  the  same  is,  as  clearly,  sufficient.  In  the 
language  of  the  Act  it  charges  a  failure  to  keep  books  of  account,  etc.  It 
alleges  a  fact.     No  further  particular  could  be  given." 

But  where  the  faihire  charged  is  not  an  absolute  faihire  to  keep  any 
books  or  records  whatsoever,  but  is  a  failure  to  keep  such  as  would  enable 
the  financial  condition  to  be  ascertained,  the  particulars  in  which  the  failure 
consists  should  be  set  out.-^° 

In  re  Peck  9  A.  B.  R.  7.50,  120  Fed.  972  (Ref.  Conn.,  affirmed  by  D.  J.): 
"With  regard  to  the  allegation  of  failure  to  keep  books,  it  has  been  held  in 
one  or  two  cases  that  the  general  words  of  the  statute  describing  the  oflFense 
are  sufficient  for  the  introduction  of  evidence  where  the  intent  is  to  allege 
that  the  bankrupt  kept  no  books  at  all.  In*  the  present  case,  however,  the 
attorney  for  the  objecting  creditors  examined  the  bankrupt,  and  the  bankrupt's, 
books,  consisting  of  ledgers,  cash  book,  day  book,  etc.,  at  great  length,  occupy- 
ing two  days  therein,  and  if  there  existed  any  facts  sufficient  to  constitute  a 
bar  to  the  discharge  in  relation  to  the  books",  or  to  the  business  dealings  and 
testimony  of  the  bankrupt,  the  objecting  creditors  were  in  a  position  to  spe- 
cifically charge  such  acts." 

[1867]  In  re  Frey,  9  Fed.  376:  "The  objection  being,  therefore,  to  the  manner 
in  which  the  books  are  kept,  and  to  imperfections,  or  omissions  therein,  gen- 
eral objections,  like  those  above  stated,  are  not  sufficient.  The  particular 
irregularities  or  omissions  must  be  pointed  out  in  the  specifications,  to  entitle 
them  to  be  considered." 

[1867]  In  re  Graves,  24  Fed.  5.50:  "The  authorities  appear  to  be  numerous 
and  uniform  that,  under  a  broad,  indefinite  allegation  like  the  present,  the 
creditor  may  prove  that  the  bankrupt  kept  no  books  at  all,  or  that  he  failed 
to  keep  any  one  of  the  books  necessary  for  the  transaction  of  the  business  in 
question.  Having  failed  in  this,  however,  he  cannot  enter  into  an  examination 
of  the  books  themselves,  for  the  purpose  of  showing  that  they  were  carelessly 
kept,  or  -kept  on  a  wrong  principle.  If  such  an  issue  is  to  be  raised,  the  bank- 
rupt must  be  advised  of  it  by  distinct,  specific,  and  definite  statements  of  plead- 
ing." 

And  where  the  allegation  of  total  failure  is  intermingled  with  allegations, 
as  to  "destruction"  and  "concealment"  of  books  of  account,  etc.,  the  words 
of  the  statute  will  be  insufficient.-"^^ 

Allegations  in  the  mere  words  of  the  statute  (in  all  instances  ex- 
cept as  to  the  absolute  failure  to  keep  any  books  of  account  or  records 
whatsoever)  are,  in  short,  insufficient.--" ^ 

230.  In  re  Hixon,  1  A.  B.  R.  610,  93  Fed.  440  (D.  C.  Iowa);  In  re  Quacken- 
bush,  4  A.  B.  R.  281,  102  Fed.  282  (Ref.  N.  Y.) ;  [1867]  In  re  Littlefield,  3  N.  B. 
Reg.  57;   [1867]   In  re  Bellis,  3  N.  B.  Reg.  496. 

231.  Milgraum  v.  Ost,  12  A.  B.  R.  306.  129  Fed.  827  (D.  C.  Penn.) ;  In  re 
Holman,  1  A.  B.  R.  600,  92  Fed.  512  (T>.  C.  Iowa);  In  re  Peck,  9  A.  B.  R.  747, 
120  Fed.  972  (D.  C.  Conn.). 

232.  Obiter,  McNeil  v.  U.  S..  18  A.  B.  R.  21  (C.  C.  A.  Tex.);  In  re  McNa- 
mara,  2  A.  B.  R.  576  (Special  Master  N.  Y.) ;  In  re  Holman,  1  A.  B.  600.  92 
Fed.  512  (D.  C.  Iowa);  impliedly.  In  re  Bromley,  18  A.  B.  R.  227,  152  Fed. 
493  (D.  C.  Pa.);  [1867]  In  re  Butterfield,  5  Biss.  120;  [1867]  In  re  Hill,  2  Ben. 
136,  Fed.  Cases  No.  6,482;  [1867]  In  re  Freeman,  4  Ben.  245,  Fed.  Cases  No.. 
5,082;  In  re  Peck,  9  A.  B.  R.  747,  120  Fed.  972   (D.  C.   Conn.). 


1560  RICMINGTON    ON    BANKRUPTCY.  §    2608 

In  re  Hirsch,  2  A.  B.  R.  715,  97  Fed.  571  (D.  C.  Tenn.)*  "But  they  likewise 
fall  under  the  general  rule  that  where  the  language  of  a  statute  does  not  of 
itself  serve  the  purpose  of  giving  notice  to  the  offender  of  the  particular  conduct 
which  is  charged  against  him  as  an  offense,  the  pleader  must  aver  the  facts 
with  sufficient  fullness  to  accomplish  that  object." 

U.  S.  v.  Carll,  105  U.  S.  611:  "It  is  not  sufficient  to  set  forth  the  offense  in 
the  words  of  the  statute,  unless  those  words,  of  t)iemselves,  fully,  directly  and 
expressly,  without  any  uncertainty  or  ambiguity,  set  forth  all  the  elements 
necessary  to  constitute  the  offense  intended  to  be  punished." 

(Obiter)  In  re  Wetmore,  6  A.  B.  R.  704,  99  Feb.  703  (Special  Master  N.  Y.): 
"It  is  not  enough  to  plead  in  the  language  of  the  statute,  'where  the  language 
of  the  statute  does  not  of  itself  serve  the  purpose  of  giving  notice  to  the 
offender  of  the  particular  conduct  which  is  charged  against  him  as  an  offense.'  " 

In  re  Hixon,  1  A.  B.  R.  613,  93  Fed.  440  (D.  C.  Iowa):  "And  since  abundant 
opportunity  is  thus  afforded  the  creditor  for  particularly  and  definitely  ascer- 
taining the  exact  grounds  upon  which  a  discharge  should  be  refused,  if  such 
grounds  exist,  no  injustice  is  done  to  the  creditor  by  requiring  that  for  which 
the  statute,  general  orders,  and  rules  provide,  viz,  'specification'  of  such  grounds. 
This  is  due  to  the  bankrupt,  that  he  may  prepare  to  meet  such  grounds.  It  is 
due,  also,  to  the  court,  that  the  court  may  have  a  defined  limit  wMthin  which 
evidence  and  argument  may  be  confined.  The  statute  (§  14)  states  in  most 
general  terms  the  'grounds'  for  refusing  discharge.  Plainly,  this  was  necessary, 
since,  with  the  general  boundaries  so  clearly  stated,  we  could  the  more  ac- 
curately and  readily  determine  whether  a  specific  state  of  facts  was  included 
therein.  E^qually  manifest  is  it  that  a  part  of  the  duty  of  an  opposing  creditor 
is  to  so  clearly  and  specifically  state  the  facts  constituting  the  grounds  of  his 
oppostion  that  the  court  may  know  whether  such  grounds  are  within  the  terms 
of  the  statute." 

[1867]  In  re  Condict,  19  B.  Reg.  142,  Fed.  Cas.  3,094:  "It  has  been  the 
uniform  practice  under  the  Bankrupt  Act  to  consider  all  specifications  too 
vague  and  general  which  charge  the  offense  in  the  words  of  the  act.  The 
particulars  in  which  the  bankrupt  has  offended  should  be  so  set  forth  that  he 
may  be  apprised  of  the  precise  matters  wherein  he  is  alleged  to  have  trans- 
gressed." 

Thus,  alleging  concealment  of  assets  in  the  words  of  the  statute,  is  in- 
pufificient.-^^ 

In  re  Ginsburg,  12  A.  B.  R.  459,  130  Fed.  627  (D.  C.  Penn.) :  "*  *  *  are 
fatally  defective  unless  the  facts  are  fully  stated." 

Likewise,  alleging  in  the  words  of  the  statute  the  commission  of  a  false 
oath,  is  insufficient;--''^  also  the  destruction  or  concealment  of  books  of 
account,  etc.^^o 

233.  In  re  Quackenbush,  4  A.  B.  R.  274,  102  Fed.  282  (D.  C.  N;  Y.) ;  God- 
shalk  V.  Sterling,  12  A.  B.  R.  302,  129  Fed.  580  (C.  C.  A.  Penn.);  In  re  McNa- 
mara,  2  A.  B.  R.  576  (Special  Master  N.  Y.). 

234.  In  re  Ginsburg,  12  A.  B.  R.  459,  130  Fed.  627  (D.  C.  Penn.);  In  re 
McNamara,  2  A.  B.  R.  576   (Special  Master  N.  Y.). 

235.  In  re  Peck,  9  A.  B.  R.  747,  120  Fed.  972  (D.  C.  Conn.);  In  re  Hirsch, 
2  A.  B.  R.  717,  96  Fed.  468  (D.  C.  Tenn.) ;  In  re  Milgraum  v.  Ost,  12  A.  B.  R. 
306,  129  Fed.  827  (D.  C.  Penn.);  In  re  Holman,  1  A.  B.  R.  600,  92  Fed.  512 
(D.  C.  Iowa). 


§'2610  OPPOSITION   TO  DISCHARGE.  1561 

Likewise,  alleging  in  the  words  of  the  statute  the  obtaining  of  property 
on  credit  on  a  materially  false  statement  in  writing  is  insufficient. ^^"^ 

Godshalk  v.  Sterling,  12  A.  B.  R.  302,  129  Fed.  580  (C.  C.  A.  Penna.):  "The 
specification  numbered  2  does  not  set  forth  what  the  'materially  false  statement' 
was  upon  which  the  bankrupts  obtained  credit.  No  good  reason  appears  why 
at  least  the  substance  of  this  alleged  false  statement  was  not  contained  in  the 
specification." 

And  allegations  in  the  mere  words  of  the  statute  have  been  held,  in 
one  case,  insufficient  to  base  an  amendment  upon.^^^ 

§  2609.  Alternative  Allegations  Improper. — Allegations  in  the  al- 
ternative are  usually  improper. --^^ 

SUBDIVISION    "c." 

Defective  Specifications:  Taking  Advantage  oe  Them:  Waiving  and 
Amending  Them  :     Fatae  Variances. 

§  2610.  Defective  Specifications;  Rights  and  Remedies. — The 
bankrupt,  as  may  be  appvopriate,  may  move  to  require  defective  specifica- 
tions to  be  made  more  definite  and  certain ;  to  strike  out  improper  or 
superfluous  allegations;  may  object  to  the  introduction  of  any  evidence, 
if  specifications  are  fatally  defective;  and  may  demur. 

It  has  been  held  that  the  bankrupt  need  not  demur  in  order  to  avail  him- 
self of  the  insufficiency  of  allegations;  and  that  he  may  avail  himself  of 
the  insufficiency  at  the  hearing. 

In  re  Crist,  9  A.  B.  R.  1,  116  Fed.  1007  (D.  C.  Ala.):  "Where  the  allegations 
of  the  specifications  are  vague  and  general,  or  unauthorized  by  law,  the  bank- 
rupt may  move  to  have  them  stricken  out,  or  he  may  rely  upon  his  defense  at 
the  time  of  the  hearing;  for  the  court  will  disregard  such  allegations.  In  re 
Wagoner,  Fe^J.  Cas.  No.  17,037;  In  re  Rathbone,  Fed  Cas.  No.  11,580;  In  re 
Tyrrel,  Fed.  Cas.  No.  14,314.  If  the  allegations  are  insufficient  in  law,  the 
bankrupt  may  file  exceptions  to  them,  analogous  to  those  allowed  in  equity, 
or  he  may  demur,  or  may  neither  except  nor  demur,  but  leave  it  to  the  court 
to  hear  the  application  for  a  discharge,  and  such  pleas  and  proofs  as  may  be 
made  in  opposition  thereto  by  parties  in  interest."  • 

Presumably  he  may  thus  avail  himself  by  objection  to  the  introduction 
of  evidence. 

Yet,  where  the  defect  does  not  consist  in  a  total  failure  to  state  some 
element  of  the  act  attempted  to  be  alleged  but  consists  only  in  stating  it 
wfth  not  sufficient  definiteness,  it  would  seem  to  be  the  better  rule  that 

236.  In  re  Levey,  13  A.  B.  R.  317,  133  Fed    572  (D.  C.  N.  Y.). 

237.  In  re  Peck,  9  A.  B.  R.  747,  120  Fed.  972  (D.  C.  Conn.). 

238.  In  re  Quackenbush,  4  A.  B.  R.  274,  120  Fed.  282  (D.  C.  N.  Y.);  appar- 
ently, In  re  Holman,  1  A.  B.  R.  600,  92  Fed.  512  (D.  C.  Iowa). 

Apparently,  Milgraum  v.  Ost,  12  A.  B.  R.  306,  129  Fed.  827  (D.  C.  Penn.^;, 
although  perhaps  this  decision  was  based  on  the  following  of  the  bare  statu- 
tory words  rather  than  because  of  being  in  alternative. 


1562  REMINGTON    ON    BANKRUPTCY.  §  2612 

such  defect   should  be  urged  before   the  hearing,   and  that  it   is   waived 
by  going  to  hearing  thereon  without  objection. ^^^ 

§  2611.  Whether  Specification  of  One  Ground  and  Proof  of  An- 
other, a  Fatal  Variance. — Where  one  ground  is  specified  but  another 
is  proved,  it  has  been  held  to  be  a  fatal  variance,-^*^  unless,  of  course,  per- 
mission be  given  to  amend  the  specification  to  conform  with  the  proof. 
But  it  is  doubtful  whether  the  power  of  amendment  may  be  stretched 
thus  far.2^1 

§  2612.  Defective  Specifications  Waived  by  Going  to  Trial  with- 
out Objection. — Defective  specifications  are  waived  by  going  to  trial  on 
the  merits  without  objection.^^- 

In  re  Osborne,  8  A.  B.  R.  165,  115  Fed.  1  (C.  C.  A.  Mass.):  "Where  the 
specifications  failed  utterly  to  allege  that  the  concealment  complained  of  was 
done  fraudulently  and  knowingly." 

In  re  Baldwin,  9  A.  B.  R.  591,  119  Fed.  796  (D.  C.  N.  Y.):  "If  the  contention 
of  the  opposing  creditor  is  correct,  and  established  by  satisfactory  evidence,  the 
petitioner  is  not  entitled  to  his  discharge.  The  objections  and  specification  of 
the  opposing  creditor  are  quite  informal  and  somewhat  defective.  But  no 
demurrer,  or  motion  in  the  nature  of  a  demurrer,  was  interposed,  and  the  par- 
ties proceeded  to  a  hearing  and  went  through  the  trial  without  raising  the 
question  of  their  sufficiency.  It  was  then  too  late  to  raise  that  question.  The 
bankrupt,  by  pursuing  this  course,  waived  all  objection  to  their  sufificiency." 

Thus,  lack  of  verification  of  specifications  is  waivable. -^^ 
But  where  there  is  not  a  mere  omission  to  allege  the  objecting  party  to 
be  a  party  in  interest,  but  an  affirmative  allegation  showing  him  to  be  not 
a  party  in  interest,  the  defect  is  not  waived  by  failure  to  object. 

In  re  Servis,  15  A.  B.  R.  271,  140  Fed.  222  (D.  C.  Iowa):  "The  failure  to 
allege  in  the  specification  to  whom  the  bankrupt  was  indebted  for  borrowed 
money  or  for  goods  not  due  or  past  due,  and  to  verify  the  same,  are  perhaps 
waived  by  the  failure  to  except  to  the  specifications  upon  these  grounds;  but 
where  the  specification  fails  to  show  that  the  party  making  the  same  is  a  party 
in  interest  and  will  be  affected  by  the  discharge,  but  affirmatively  shows  that 

239.  Inferentially,  In  re  Baldwin,  9  A.  B.  R.  591,  119  Fed.  796  (D.  C.  N.  Y.). 
Where   by    local   rule    it   is    necessary    to    raise    objections    to    the    sufficiency 

of  the  allegations  within  a  specified  time  by  motion  before  the  judge  and  the 
parties  proceed  to  trial  without  making  such  objections,  all  objections  to  the 
sufficiency  are  waived,  and  after  trial  objections  that  the  evidence  received 
was  not  within  the  issue,  comes  too  late.  In  re  Baldwin,  9  A.  B.  R.  591,  119 
Fed.  796  (D.  C.  N.  Y.);  obiter,  inferentially.  In  re  Knaszak,  18  A.  B.  R.  188, 
151  Fed.  503  (D.  C.  N.  Y.). 

240.  In  re  Halsell,  13  A.  B.  R.   106,  132   Fed.  562   (D.   C.  Tex.). 
241.'  See  post,  §  2617. 

242.  Osborne  v.  Perkins,  7  A.  B.  R.  250,  112  Fed.  127  (C.  C.  A.  Mass.); 
Bragassa  v.  St.  Louis  Cycle  Co.,  5  A.  B.  R.  700,  107  Fed.  77  (C.  C.  A.  Tex.). 
But  see  In  re  Crist,  9  A.  B.  R.  1,  116  Fed.  1007  (D.  C.  Ala.). 

243.  In  re  Robinson,  10  A.  B.  R.  477,  123  Fed.  844  (D.  C.  R.  I.);  Godshaik 
V.  Sterling,  12  A.  B.  R.  302,  129  Fed.  580  (C.  C.  A.  Pa.);  obiter,  In  re  Servis 
15  A.  B.  R.  274,  140  Fed.  222  (D.  C.  Iowa). 


§    2615  OPPOSITION   TO  DISCHARGE.  1563 

he  will  not  brj,  the  court  itself  may  take  notice  of  this,  though  the  specification 
is  not  excepted  to,  for  oppostion  to  a  discharge  will  not  be  heard  or  determined 
at  the  instance  of  one  who  does  not  show  in  his  specification  that  he  is  a  party 
in  interest,  and  therefore  entitled  to  oppose  the  same.  This  specification  is 
fatally  defective  in  this  respect,  and  presents  no  issue  that  should  be  considered 
or  determined.  See  In  re  Brown,  7  Am.  B.  R.  252,  112  Fed.  49;  In  re  Chandler 
(C.  C.  A.),  14  Am.  B.  R.  512,  138  Fed.  637." 

But  if  defective  specifications  are  not  waived,  it  is  the  master's  duty  to 
report  back  to  the  court  that  nothing  has  been  filed  with  him  in  the  way 
of  objections  which  he  considers  to  require  the  taking  of  evidence.^^* 

§  2613.  Defective  Specifications  May  Be  Amended. — Defective 
specifications  may  be  amended,  in  the  discretion  of  the  court. -^° 

In  re  Henderick,  14  A.  B.  R.  795,  138  Fed.  473  (D.  C.  Conn.):  "The  creditors 
have  offered  to  file  amendments  which  go  to  matters  of  form.  I  think  that 
they  are  entitled  to  do  this,  if  by  so  doing  they  shall  not  change  the  substantial 
nature  of  their  objections." 

Thus,  where  the  amendment  consists  simply  of  an  ampHfication  of  the 
allegations  of  a  fraudulent  transfer,  it  has  been  permitted. ^^"^  And  amend- 
ment should  be  allowed,  as  of  course,  where  no  laches  on  the  part  of  the 
creditor  appears,  and  no  injustice  to  the  bankrupt  or  unreasonable  delay 
will  result.2^" 

§  2614.  Must  Be  Something  in  Pleading  Whereby  to  Amend. — 
There  must  be  something  already  in  the  pleading  by  which  to  amend. -^^ 
And  allegations  in  the  mere  words  of  the  statute  have  been  held  insufficient 
to  base  an  amendment  upon.-^^ 

§  2615.  Amendment  Permissible  after  Time  Limited  for  Filing 
Specifications. — Amendment  may  be  permitted  even  after  the  expiration 

244.  In  re  Hendrick,  14  A.  B.  R.  795,  138  Fed.  473  (D.  C.  Conn.). 

245.  In  re  Osborne,  8  A.  B.  R.  165,  115  Fed.  1  (C.  C.  A.  Mass.);  In  re  Hixon, 
1  A.  B.  R.  610,  93  Fed.  440  (D.  C.  Iowa);  In  re  Glass,  9  A.  B.  R.  391,  119  Fed. 
509  (D.  C.  Tenn.);  In  re  Kaiser,  3  A.  B.  R.  767,  99  Fed.  689  (D.  C.  Minn.); 
In  re  Carley,  8  A.  B.  R.  720,  117  Fed.  130  (C.  C.  A.  N.  J.);  In  re  Nathanson, 
18  A.  B.  R.  252,  152  Fed.  585  (D.  C.  N.  Y.) ;  In  re  Bemis,  5  A.  B.  R.  36,  104 
Fed.  672  (D.  C.  N.  Y.) ;  In  re  Knaszak,  18  A.  B.  R.  189,  151  Fed.  503;  In  re 
]\Iorgan,  4  A.  B.  R.  402,  101  Fed.  982  (D.  C.  Ark.).  Impliedly,  In  re  Pierce 
4  A.  B.  R.  554,  103  Fed.  64  (D.  C.  X.  Y.). 

246.  In  re  Gift,  12  A.  B.  R.  244,  130  Fed.  230  (D.  C.  Pa.). 

247.  In  re  Carley,  8  A.  B.  R.  720,  117  Fed.  130  (C.  C.  A.  N.  J.). 

248.  In  re  Peck,  9  A.  B.  R.  747,  120  Fed.  972    (D.  C.  Conn.). 

In  re  Gift,  12  A.  B.  R.  244,  130  Fed.  230  (D.  C.  Penn.)  :  In  this  decision  the 
qualification  is  added  "after  the  time  for  filing  objections  to  the  discharge  has 
expired;"  but  of  course  all  amendments  must  have  something  whereby  to 
amend  already  in  the  record;  and  absolutely  new  specifications  could  be  filed, 
regardless  of  the  condition  of  the  record,  up  to  the  time  limited  for  filing  them. 

In  re  Mercur,  8  A.  B.  R.  275,  116  Fed.  655  (D.  C.  Pa.);  In  re  Bromley,  18  A. 
B.  R.  227,  152  Fed.  493   (D.  C.  Pa.). 

249.  In  re  Peck,  9  A.  B.  R.  747,  120  Fed.  972   (D.  C.  Conn.). 


1564  REMINGTON    ON    BANKRUPTCY.  §    2621 

of  the  time  allowed  by  law  for  filing  specifications. ^^o  But  after  the  time 
within  which  the  objections  to  the  bankrupt's  discharge  are  required  to  be 
filed,  an  amendment  thereto  in  matter  of  substance  is  only  allowable  where 
there  is  already  a  record  sufficient  to  justify  it.^^i 

§  2616.  Even  New  Ground  of  Opposition  May  Be  Added. — Amend- 
ment may  be  had  even  to  introduce  new  ground  of  oppositionists  but  not 
to  introduce  an  entirely  new  ground  of  opposition  after  the  evidence  is 
all  in,  and  especially  not  on  review. ^^^ 

§  2617.  Amendment  to  Conform  Pleadings  to  Proof,  but  Not  to 
Set  Up  Entirely  New  Ground  after  Trial. — After  hearing  had,  amend- 
ment may  be  allowed  in  order  to  conform  the  pleadings  to  the  proof  ;2o* 
but  not,  after  hearing  is  concluded,  to  introduce  an  entirely  new  ground  of 
opposition. 255 

§  2618.  Amendment  May  Be  Ordered. — Amendment  may  be  or- 
dered.s^*" 

§  2619.  Striking  Off  Specifications  after  Amendment  for  Failing 
Still  to  Show  Sufficient  Grounds. — If,  after  amendment,  the  specifica- 
tions still  fail  to  show  sufficient  grounds,  they  may  be  stricken  off.^^^ 

§  2620.  Amendment  May  Be   Conditioned  on  Payment   of  Costs. 

— Amendment  may  be  conditioned  on  payment  of  costs. ^^s 

§  2621.  Amendment  May  Be  Refused. — Amendment  may  be  refused 
for  proper  cause.  Thus,  amendment  of  specifications  may  be  refused  on 
account  of  laches  ;259  or  on  account  of  lack  of  proper  excuse  ;2^*^  or  on 
account  of  evident  nonexistence  of  essential   facts  i^f^^   or  on   account  of 


250.  In  re  Morgan,  4  A.  B.  R.  403.  101  Fed.  982  (D.  C.  Ark.);  In  re  Os- 
borne, 8  A.  B.  R.  165,  115  Fed.  1  (C.  C.  A.  Mass.);  In  re  Nathanson,  18  A.  B. 
R.   252,   152   Fed.   585    (D.   C.   N.   Y.). 

251.  In   re   Gift,   12  A.   B.   R.   244,   130   Fed.   230    (D.    C.   Penn.). 

252.  In  re  Glass,  9  A.  B.  R.  391,  119  Fed.  509  (D.  C.  Tenn.).  Contra,  but 
obiter,  In  re  Hendrick,  14  A.  B.  R.  795,  138  Fed.  473  (D.  C.  Conn.). 

253.  See   next  paragraph   following. 

254.  In  re  Pierce,  4  A.  B.  R.  554,  103  Fed.  264  (D.  C.  N.  Y.) ;  In  re  Lesser, 
5  A.  B.  R.  330,  108  Fed.  205  (D.  C.  N.  Y.).  Obiter,  In  re  Knaszak,  18  A.  B.  R. 
189,    151    Fed.    503    (D.    C.    N.   Y.). 

255.  In  re  Pierce,  4  A.  B.  R.  554,  103   Fed.  264  (D.   C.   N.  Y.). 

256.  In  re  Holman,  1  A.  B.   R.  600,  92  Fed.  512   (D.   C.   Iowa). 

257.  In  re  Holman,  1  A.  B.  R.  600,  92  Fed.  512  (D.   C.  Iowa).' 

258.  Instance,  In  re  Patterson,  10  A.  B.  R.  371,  374,  121  Fed  921  CD  C 
N.   Y.).  ■  ^     •      • 

259.  Kentucky  Nafl  Bk.  v.  Carley,  10  A.  B.  R.  375,  121  Fed  822  (C  C  \ 
N.  J.);  In  re  Mudd,  5  A.  B.  R.  242,  105  Fed.  348  (D.  C.  Mo.).  Obiter,  in- 
fcrcntially,  In  re  Nathanson,  18  A.   B.  R.  252,  254,  152  Fed    585   (D    C    N  'y  ) 

260.  In  re  Hixon,  1  A.   B.  R.  610,  93   Fed.   440    (D.   C    Iowa)   ' 

261.  In  re  Hixon,  1  A.  B.  R.  610,  93  Fed.  440   (D.  C.  Iowa) 


§  2624  OPPOSITION  TO  DISCHARGE.  1565 

there   being   "nothing   to   amend   by,"   the   pleading   being   merely   in   the 
words  of  the  statute. -'^- 

In  re  Bromley,  18  A.  B.  R.  227,  152  Fed.  493  (D.  C.  Pa.~) :  "There  is  no  state- 
ment of  fact  on  which  an  amendment  can  be  grafted,  and  leave  to  amend  should 
be  granted  where  only  the  words  of  the  statute  are  used." 

§  2622.  Refusal  to  Permit  Amendment  Reviewable  for  Abuse  of 
Discretion. — Refusal  to  permit  amendment  in  a  proper  case  may  be  an 
abuse  of  discretion  reviewable  by  the  circuit  court  of  appeals,  for  it  is 
a  substantial  right  of  the  creditor. ^^3 


Answering  the  Specifications. 

§  2623.  Answer  to  Specifications  Not  Necessary. — The  specifica- 
tions need  not  be  met  by  answer :  they  are  taken  as  denied. ^^^ 

In  re  Logan,  4  A.  B.  R.  525,  102  Fed.  876  (D.  C.  Ky.):  "It  is  insisted  by  the 
creditor,  inasmuch  as  the  bankrupt  made  no  response  to  the  specifications  of 
objections  to  the  discharge,  that  the  charges  made  by  the  creditor  therein  should 
be  taken  as  confessed;  and  we  are  cited  to  Loveland,  Bankr.,  §  281,  in  support 
of  this  view.  We  cannot  agree  with  that  learned  author  in  the  proposition  that 
further  pleading  was  necessary.  There  is  no  rule  in  bankruptcy  which  requires 
in  such  cases  any  further  pleading  by  a  bankrupt.  By  the  mode  of  procedure, 
uniform  in  this  district,  at  least,  the  bankrupt  files  a  petition  for  a  discharge, 
in  which  he  avers' that  he  has  complied  with  all  the  provisions  of  the  Bank- 
rupt Act.  This  is  his  pleading,  and  upon  it  the  proper  notice  is  served  upon 
all  creditors.  The  prayer  of  this  petition  will  be  granted  as  of  course,  unless 
some  creditor  objects  and  specifies  his  grounds  of  objection.  If  the  grounds 
are  specified,  the  case  goes  to  the  referee  as  the  next  step  to  ascertain  and  re- 
port the  facts.  Unless  the  specified  grounds  are  established  by  the  proof,  the 
discharge  is  granted.  Nothing  is  taken  for  granted,  and  the  onus  is  on  the 
creditor.  Failure  to  establish  the  objections  by  evidence  cannot  be  a  ground 
for  refusing  the  discharge,  and  it  follows  logically  and  inevitably  from  this  fact 
that  no  further  pleading  is  necessary  upon  the  part  of  the  bankrupt.  The 
proof  must  be  taken  in  any  event,  and  without  proof  the  creditor  fails.  The 
bankrupt  may  rely  upon  the  presumption  of  innocence." 

In  re  Hendrick,  14  A.  B.  R.  795,  138  Fed.  473  (D.  C.  Conn.):  "The  bankrupt 
had  the  right  to  file  whatever  papers  he  might  see  fit  to  file,  but  he  was  under 
no  compulsion  to  file  any.  The  specifications  of  objection  required  proof,  and, 
until  a  sufficient  quantity  of  proof  had  been  presented  to  the  master,  no  valid 
objection  to  a  discharge  existed,  and  no  testimony  should  have  been  heard,  ex- 
cept such  as  had  for  a  foundation  a  valid  specification  of  objection." 

§  2624.  But  May  Be  Filed.— But  the  bankrupt  may  file  answer  thereto 
if  he  desires  to  do  so.-*^^ 

262.  In  re  Peck,  9  A.   B.  R.  747,  120  Fed.  972   (D.  C.  Conn.). 

263.  In  re  Carley,  8  A.  B.  R.  720,  117  Fed.  130   (C.  C.  A.  N.  J.). 

264.  Obiter,  In  re  Crist,  9  A.  B.  R.  1,  116  Fed.  1007   (D.  C.  Ala.). 

265.  In  re  Hendrick,  14  A.  B.  R.  795,  138  Fed.  473   (D.  C.   Conn.). 


1566  remington  on  bankruptcy.  §  2626 

Division  5. 
Hearing  upon  Specifications  of  Grounds  of  Objection  to  Discharge. 

subdivision  "h!' 
Before  Whom  Hearing  to  Be  Held. 

§  2625.  Final  Hearing  on  Discharge  to  Be  before  Judge. — Upon 
the  filing  of  the  specifications,  hearing  is  had. 

The  final  hearing  upon  the  petition  for  discharge  and  specifications  of 
grounds  of  objection  thereto  is  to  be  held  before  the  judge. 

The  hearing  may  not  be  held  before  the  referee  as  such.  His  functions 
as  referee  are  confined  solely  to  questions  arising  out  of  the  administration 
of  the  estate.  The  law  contemplates  that  the  hearings  upon  the  petitions 
for  adjudication  of  bankruptcy,  for  confirmation  of  a  composition  and  for 
discharge  must  be  had  before  the  judge. ^'^'^ 

§  2626.   But  Judge  May  Refer  Issues  to  Special  Master.— But  the 

judge  may  refer  the  issues  to  a  special  master.-'^" 

In  re  Rauchenplat,  9  A.  B.  R.  763,  1  P.  R.  471  (D.  C.  Porto  Rico):  "The 
application  for  discharge  must,  by  §  14  of  the  Bankrput  Law,  and  General 
Order  in  Bankruptcy  No.  12,  §  3,  he  heard  and  decided  by  the  judge  of  the 
court.  The  referee  has  no  jurisdiction  to  determine  the  question,  but  the  court 
may  refer  the  case  to  him  generally  for  a  report.  He  aids  the  court  like  a 
master  in  chancery.  He  cannot  finally  determine  the  question  of  discharge  or 
nondischarge,  but  he  may  be  ordered  to  report  the  facts  and  his  recommendation 
or  conclusion  as  to  the  matter.  This  is  merely  to  aid  the  judge,  and  the  court 
then  determines  the  matter.  The  practice  in  bankruptcy  is  much  like  that  in 
equity,  and  it  is  hardly  supposable  that  the  lawmaking  power  intended  that  a 
court,  if  it  saw  proper,  should  not  avail  itself  of  such  aid.  In  re  Kaiser,  3  Am. 
B.  R.  767,  99  Fed.  689." 

Fellows  V.  Freudenthal,  4  A.  B.  R.  490,  102  Fed.  731  (C.  C.  A.  Ills.):  "In 
§§  38  and  39  the  jurisdiction  and  duties  of  referees  are  specifically  enumerated, 
but  the  matter  of  hearing  applications  for  a  discharge  is  not  included,  either 
in  direct  terms  or  inferentially,  while  subdivision  4  of  §  38  clearly  excepts  such 
hearings  from  his  jurisdiction.  IMoreover,  §  14b  expressly  provides  that  'the 
judge  shall  hear  the  application  for  a  discharge,  and  such  proofs  and  pleas  as 
may  be  made  in  opposition  thereto.'  As  the  district  courts  are  inA^ested  with 
jurisdiction  both  at  law  and  in  equity,  to  'enable  them  to  exercise  original 
jurisdiction  in  bankruptcy  proceedings'    (§  2),  the  power  unquestionably  exists 

266.  Bankr.  Act,  §  38  (a)  (4).  In  re  McDufif  (Watson  v.  McDuff),  4  A.  B. 
R.  110,  101  Fed.  241  (C.  C.  A.  La.);  In  re  Rauchenplat,  9  A.  B.  R.  763,  1  P.  R. 
471  (D.  C.  Porto  Rico);  Fellows  v.  Freudenthal,  4  A.  B.  R.  490,  102  Fed. 
731    (C.   C.   A.    Ills.). 

See  as  to  peculiar  practice  in  Iowa,  In  re  Goodhile,  12  A.  B.  R.  380,  130  Fed. 
782     (D.     C.     Iowa). 

267.  Gen.  Ord.  No.  12,  §  3:  '"But  he  (the  judge)  may  refer  such  an  appli- 
cation or  any  specified  issue  arising  thereon  to  the  referee  to  ascertain  and 
report   the    facts." 

Woods  V.  Little,  13  A.  B.  R.  742,  134  Fed.  229  (C.  C.  A.  Penn.) ;  In  re 
Kais<;r,  3  A.  B.  R.  767.  99  Fed.  689  (D.  C.  Minn.);  Watson  v.  McDuff,  4  A.  B. 
R.  110,  101  Fed.  241  (C.  C.  A.  La.). 


§  2629  OPPOSITION  TO  DISCHARGE.  1567 

to  order  a  reference  for  the  purpose  of  the  hearing  pursuant  to  the  equity  practice; 
and  it  would  be  practically  impossible  to  conduct  the  hearings  otherwise  in  dis- 
tricts like  the  northern  district  of  Illinois,  with  the  press  of  other  business,  and 
cases  in  bankruptcy  under  the  present  act  numbering  in  the  thousands.  The 
reference  is  then  made  to  the  referee  in  the  capacity  of  special  master,  not  as 
referee  in  bankruptcy,  and  for  a  duty  independent  of  the  latter  office,  and  in  no 
sense  incompatible.  To  avoid. confusion,  it  would  seem  better  practice  to  desig- 
nate the  appointee  as  special  master  for  the  purpose  in  the  order,  but  the  fact 
that  the  name  of  'referee'  or  'referee  in  bankruptcy'  is  retained  instead  cannot  af- 
fect»his  performance  of  the  duties.  His  report  is  advisory  only,  and  the  final 
hearing  is  before  the  district  judge." 

§  2627.  Motions  and  Demurrers  to  Be  to  Judge,  Not  to  Special 
Master. — ^Motions  for  leave  to  amend  must  be  made  to. the  judge,  not  to 
the  special  master. ^^s  Likewise,  demurrers  and  motions  to  strike  out  mat- 
ter from  the  specifications  or  to  require  them  to  be  made  definite  and  cer- 
tain, etc.,  etc.,  must  be  made  before  the  judge  ;-^9  also,  the  application  of 
one  objecting  creditor,  whose  own  specifications  are  insufiicient,  to  avail 
himself  of  specifications  filed  by  another  creditor.-"*^  But  objections  to 
the  introduction  of  any  evidence  under  the  specifications,  although  some- 
times called  "in  the  nature  of"  a  demurrer,  are,  of  course,  to  be  heard  in 
the  first  instance  by  the  special  master. 

SUBDIVISION    "b." 

Functions  and  Duties  of  Special  ^Master  on  Discharge. 

§  2628.  Hearings  before  Special  Master. — Hearings  before  the 
special  master  are  in  general  to  be  held  in  accordance  with  federal  equity 
practice. 2"! 

§  2629.   Whether  Special  Master  to  Exclude  Improper  Evidence. 

— It  has  been  ruled  in  some  cases  that  the  special  master  must  take  down 
all  the  evidence  excluded  by  him  under  objection  and  exception. ^^ 2 

In  re  Romine,  14  A.  B.  R.  785,  138  Fed.  837  (D.  C.  W.  Va.) :  "The  first  ques- 
tion presents  little  difficult3^     In  re  Wilde's  Sons,  11  Am.  B.  R.  714,  131  Fed. 

268.  Ky.  Xat'l  Bk.  v.  Carley,  10  A.  B.  R.  375,  121  Fed.  822  (C.  C.  A.  N.  ].); 
In  re  Peck,  9  A.  B.  R.  747,  120  Fed.  972  (D.  C.  Conn.);  In  re  Kaiser,  3  A.  B. 
R.  770,  99  Fed.  689  (D.  C.  Minn.);  In  re  Burk,  3  N.  B.  R.  296;  In  re  Mcln- 
tyre,  1  N.  B.  N.  115;  In  re  Wolfensohn,  5  A.  B.  R.  60  (Ref.  N.  Y.).  Compare, 
contra  inferentially.  In  re  Quackenbush,  4  A.  B.  R.  274.  102  Fed.  282  (D.  C. 
N.  Y.).     Analogously,  In  re  Baldwin,  9  A.  B.  R.  591,  119  Fed.  796  (D.  C.  N.  Y.). 

269.  In  re  Baldwin,  9  A.  B.  R.  591,  119  Fed.  796  (D.  C.  X.  Y.),  by  local  rulo. 

270.  In  re  Wetmore,  6  A.   B.  R.  703,   102   Fed.  290    (Special   Master    N.  Y.). 

271.  In  re  Lipsett,  9  A.  B.  R.  32,  119  Fed.  379  (Ref.  X.  Y.);  Dressel  v.  Xorth 
State  Lumber  Co.,  9  A.  B.  R.  541,  119  Fed.  531  (D.  C.  X.  Y.) ;  Bank  v.  Johnson, 
16  A.  B.  R.  209,  143  Fed.  463   (C.  C.  A.  W.  Va.). 

Whose  Duty  to  Bring  on  Hearing  before  Special  Master. — As  to  whose 
duty  it  is  to  bring  on  the  hearing  before  the  special  master,  see  In  re  Eldred, 
18  A.  B.  R.  243.  152  Fed.  491   (D.  C.  X.  Y.). 

272.  Bank  z:  Johnson,  16  A.  B.  R.  209,  143  Fed.  463  (C.  C.  A.  W.  Va.) ;  In 
re  Lipsett,  9  A.  B.  R.  32,  119  Fed.  279  (Ref.  N.  Y.).  Compare,  Dressel  v. 
North  State  Lumber  Co.,  9  A.  B.  R.  541,  119  Fed.  531  (D.  C.  X.  Car.).  Com- 
pare, In  re  DeGottardi,  7  A.  B.  R.  746,  114  Fed.  328  (D.  C.  Calif.);  ap- 
parently, In  re  Knaszak.  18  A.  B.   R.  188,  151  Fed.  503  £D.  C.  X.  Y.). 


1568  REMINGTON    ON    BANKRUPTCY.  §    2629 

142,  it  is  held,  that  a  referee  acting  in  his  character  of  referee  or  as  special 
commissioner  has  the  right  to  exclude  evidence  which  he  deems  inadmissible. 
But  'many  other  cases  hold  the  contrary.  In  re  Lipset,  9  Am.  B.  R.  32,  119 
Fed.  379,  it  is  held,  that  hearings  before  referees  are  substantially  the  same 
as  in  equity,  subject,  in  effect,  to  ecjuity  rule  67,  and  therefore  it  is  the  duty 
of  the  referee,  although  he  must  rule  on  any  objections  made  to  testimony 
oflfered,  to  take  all  excluded  testimony  and  make  the  same  a  part  of  the  record, 
with  his  ruling  on  the  objections,  and  also  the  exceptions  which  may  be  taken 
noted  in  connection  with  such  testimony.  It  is  clearly  set  forth  in  this  case 
that  the  reason  for  this  procedure  is  to  enable  the  judge  on  a  review  not  ta  re- 
verse a  decision  made  because  of  the  error  of  the  referee  in  excluding  evidence, 
but  enable  such  judge  to  at  once,  without  reference  back  to  take  such  testi- 
mony, to  determine  the  issue  upon  the  proper  testimony,  disregarding  that 
which  was  improper.     *     *     * 

"But  it  is  needless  to  adduce  further  authority  touching  this  point,  for,  in  my 
judgment,  General  Order  in  Bankruptcy  No.  XXII,  fully  determines  it.  The 
latter  clause  of  this  order  provides: 

"  'The  referee  shall  note  upon  the  deposition  any  question  objected  to,  with 
his  decision  thereon;  and  the  court  shall  have  power  to  deal  with  the  costs  of 
incompetent,  immaterial,  or  irrelevant  depositions,  or  parts  of  them,  as  may  be 
just.' 

"It  is  clear  to  me  that  in  taking  testimony  the  referee  must  have  it  taken 
down,  preferably  in  narrative  form,  but,  upon  objection  raised,  it  is  his  duty 
to  require  the  matter  to  be  presented  by  question,  to  which  the  objection  and 
reason  thereof  is  to  be  clearly  but  briefly  noted;  then  to -enter  his  ruling  thereon 
as  to  whether  proper  or  not,  and,  although  he  may  rule  it  to  be  improper,  yet 
allowed  it  to  be  answered.  I  am  persuaded,  however,  that  he  is  not  called  upon 
to  suffer  and  allow  counsel,  as  in  this  case,  to  ask  and  permit  witnesses  to 
answer  the  same  question  over  and  over  again,  whereby  time  is  unnecessarily 
consumed  and  costs  incurred,  but  that  upon  his  noting  the  fact  that  the  ques- 
tion has  been  once  answered,  or  the  demand  to  answer  has  been  once  positively 
refused,  the  court  will  justify  him  in  preventing  vain  repetition.  Applying  these 
rules  to  this  case,  it  is  clear  that  the  referee  and  the  attorneys  engaged  all 
had  a  wrong  conception  of  his  power  in  the  start;  that  they  discovered  their 
error;  that  the  referee  corrected  all  possible  injury  by  recalling  the  witness  and 
permitting  the  questions  to  be  propounded  again  which  he  had  ruled  out;  and 
that,  if  the  witness  was  influenced  to  refuse  to  answer  because  of  his  ruling 
the  questions  to  be  improper,  the  referee  was  not  blamable,  because  it  was  his 
duty  to  rule,  and  the  witness  alone  could  at  his  peril  refuse  to  answer.  There 
was  therefore  in  this  first  proposition  nothing  to  warrant  this  rule  against 
the  referee." 

But  the  more  practicable  rule  is  that  the  special  master  should  exclude 
incompetent  and  irrelevant  evidence,  but  should  permit  to  be  stated,  as 
part  of  the  exception  to  the  ruling,  what  the  evidence  offered  would  have 
teen  if  admitted.  This  method  preserves  the  rights  of  all  parties  and  sub- 
serves the  purposes  of  review  quite  as  well  as  the  first  method,  and  does 
not  carry  with  it  the  implication  that  the  special  master  has  no  control 
over  the  introduction  of  evidence. ^"^ 

273.    In  re  Wolfensohn,  o  A.  R.  R.  60  (Special  Master  X.  Y.). 

Reserving  Decision  as  to  Admissibility. — The  special  master  may  reserve 
decision  as  to  the  admissibility  of  evidence.  In  re  Knaszak,  18  A.  B.  R.  188, 
151  Fed.  503   (D.  C.  N.  Y.). 


§    2634  OPPOSITION  TO  DISCHARGE.  1569 

In  re  Wilde's  Sons,  11  A.  B.  R.  714,  131  Fed.  142  (D.  C.  N.  Y.) :  "A  referee  in 
bankruptcy,  whether  acting  in  his  character  as  referee  or  as  special  commis- 
sioner, has  the  right  to  exclude  evidence  which  he  deems  inadmissible." 

In  re  Kaiser,  3  A.  B.  R.  767,  99  Fed.  689  (D.  C.  Minn.):  "The  authority  of 
the  referee  is  not  limited  to  the  taking  and  reporting  of  the  evidence  and 
ruling  as  to  its  admissibility.  In  addition  to  that,  it  is  competent  and  desirable 
that  he  shall  report  finding  and  recommendations.  *  *  *  'j^j-,g  referee  should 
not  disregard  the  specifications,  and  should  confine  the  evidence  to  the  material 
facts  alleged  in  the  specifications. 

"The  referee  has  authority  to  rule  upon  the  sufficiency  of  the  specifications 
of  objections,  and  should  not  take  evidence  on  such  as  are  clearly  insufficient. 
Application  to  amend  specifications  should  be  made  to  the  judge." 

§  2630.   Findings  of  Fact  as  Well  as  Evidence  to  Be  Reported. — 

And  the  special  master  must  report  his  findings  of  fact,  not  merely  the 
evidence. ^■^•i 

§  2631.  Also  Conclusions  of  Law. — And  the  special  master  may  re- 
port whether  the  objections  have  been  sustained,  as  well  as  merely  the 
facts  themselves. '"5 

§  2632.    Exceptions  to  Special  Master's  Report  and  Findings. — 

Exceptions  to  the  special  master's  report  and  findings  should  be  made  in 
accordance  with  Federal  Equity  Rule  83  as  construed  in  vSchefield  v. 
Gordon,  151  U.  S.  285,  except  as  otherwise  provided  in  the  act.^"^ 

§  2633.  Court  Presumed  to  Have  Investigated  Case  on  Merits,  on 
Master's  Report. — Upon  confirming  the  report  of  a  referee  as  special 
master  and  granting  a  discharge,  it  will  be  presumed  the  court  investigated 
the  case  on  the  merits.-'^ 

§  2634.   Findings  of  Fact  Not  Reversed  Except  for  Clear  Error. — 

The  findings  of  fact  by  the  special  master  will  not  be  reversed,»except  upon 
clear  and  convincing  proof  of  error.  He  has  view  of  the  witnesses  and 
may  note  their  demeanor  on  the  stand. ^"s 

274.  In  re  Steed  &  Curtis,  6  A.  B.  R.  73,  107  Fed.  682  (D.  C.  N.  Car.);  In 
re   Kaiser,  3   A.   B.   R.   367,  99   Fed.   689    (D.   C.   Alinn.). 

Separate  findings  of  fact  and  conclusions  of  law  must  be  given  if  demanded. 
Gen.  Ord.  XXXVI;  In  re  Rauchenplat,  9  A.  B.  R.  763,  1  P.  R.  471  (D.  C.  Porto 
Rico). 

275.  In  re  Rauchenplat,  9  A.  B.  R.  763,  1  P.  R.  471  (D.  C.  Porto  Rico); 
In   re   Kaiser,   3  A.   B.   R.   367,  99   Fed.   689    (D.   C.   Minn.). 

276.  In  re  Covington,  6  A.   B.  R.  374,   110  Fed.  143   (D.  C.  N.   Car.). 

277.  Ky.  Nat.  Bk.  of  Louisville  v.  Carley,  12  A.  B."  R.  119,  127  Fed.  686  (C. 
C.  A.   N.  J.). 

278.  In  re  Covington,  6  A.  B.  R.  373,  110  Fed.  143  (D.  C.  X.  Car.);  In  re 
Lafleche,  6  A.  B.  R.  482,  109  Fed.  307  (D.  C.  Vt.);  inferentially.  In  re  Keefer, 
14  A.  B.  R.  291,  135  Fe.d.  885  (D.  C.  N.  Y.) ;  In  re  Shriver,  10  A.  B.  R.  746, 
125  Fed.  511  (D.  C.  Pa.);  In  re  Baerncopf,  9  A.  B.  R.  133,  117  Fed.  975  (D. 
C.  Pa.).  Compare  similar  ruling  in  C.  C.  A.  in  discharge  cases,  appealed  from 
District  Court,  Osborne  v.  Perkins,  7  A.  B.  R.  250,  112  Fed.  127  (C.  C.  A. 
Mass.). 

2  Rem  B— 24 


1570  REMINGTON    ON    BAN-KRUPTCY.  §    2635 

In  re  Forth,  18  A.  B.  R.  186  (D.  C.  X.  Y.):  "The  referee  was  appointed  as 
special  master  to  pass  on  the  facts,  and  has  decided  in  favor  of  the  bankrupt, 
after  seeing  and  hearing  the  witnesses  testify  and  it  does  not  seem  to  the  court 
that  this  determination  upon  these  questions  can  be  disregarded,  as  there  is 
apparently  sufficient  testimonj'  to  support  his  determination." 

In  re  Conroy,  14  A.  B.  R.  250,  134  Fed.  764  (D.  C.  Pa.):  "He  had  the  wit- 
nesses before  him,  and  is  therefore  better  able  to  judge  what  weight  should  be 
given  to  their  utterances  than  the  court,  who  must  depend  upon  the  written 
statement." 

In  re  Knaszak,  18  A.  B.  R.  189,  151  Fed.  ?03  (D.  C.  X.  Y.):  "They  are  based 
on  conflicting  testimony,  and,  in  their  ascertainment,  much  depended  upon  the 
credibility  of  the  bankrupt.  The  master  was  of  opinion  that  no  reliance  what- 
ever could  be  given  to  such  of  the  bankrupt's  testimony  as  was  before  him.  In 
these  circumstances,  the  record  containing  other  credible  evidence  to  sustain 
the  specifications,  the  findings  of  the  special  master  should  not  be  disturbed. 
The  petition  for  discharge  must  be  denied." 

Compare,  similar  ruling  in  C.  C.  A.  in  discharge  case  appealed  from  the 
District  Court  Barton  Bros.  -.'.  Produce  Co.,  14  A.  B.  R.  504,  136  Fed.  355 
(C.  C.  A.  Ark.):  "Where,  as  in  this  case,  the  hearing  was  on  oral  testimony, 
his  conclusions  on  disputed  questions  of  fact  should  not  be  disturbed  by  the 
appellate  court,  except  for  cogent  reasons,  such  as  a  palpable  mistake  or  mis- 
conception of  the  decided  weight  of  the  evidence.  *  *  *  The  learned  judge 
who  heard  this  case  patiently  for  two  days,  with  opportunity  to  observe  the 
witnesses,  their  conduct  on  the  stand,  with  probable  personal  knowledge  of 
what  manner  of  men  they  were,  was  in  better  position  to  form  a  correct  esti- 
mate of  the  probative  force  to  be  attached  to  their  testimony  than  this  court 
can  form  from  the  more  or  less  imperfect  expression  of  the  testimony  in  type." 

Compare,  In  re  Harr,  16  A.  B.  R.  214,  143  Fed.  421  ( D.  C.  Mo.):  "The  find- 
ings of  facts  by  a  special  master  who  attended  the  examination  of  the  witnesses, 
thus  giving  him  an  opportunity  of  seeing  them  testify,  while  not  as  conclusive 
as  the  finding  of  facts  by  a  jury  or  a  trial  judge  sitting  as  a  jury,  are  verj'  per- 
suasive, and  if  there  is  substantial  testimony  to  sustain  his  findings  uninfluenced 
by  any  mistaken  conclusions  of  law  they  will  not  be  disturbed  by  the  court 
hearing  the  cause  on  a  transcript  of  the  evidence  without  opportunities  to  see 
the  witnesses,  and  thus  to  judge  of  their  credibility  in  the  same  manner  as  was 
enjoyed  by  the  master.  For  these  reasons  the  findings  on  the  objections  made 
by  the  special  master  on  the  first,  second,  and  fourth  specifications  of  objec- 
tions and  on  the  claim  of  Wood  Bros,  will  not  be  disturbed,  although  the 
testimony  is  conflicting,  and  but  for  the  findings  of  the  special  master  the 
court  might  have  reached  different  conclusions." 

subdivision  "c." 

Burden  of  Proof:    Dfcref  of  Proof:    Admissibility  of  Evidence  and 
Credibility  of  Witnesses  on  Discharge. 

§  2635.  Burden  of  Proof  on  Opposing  Creditor. — The  opposing  cred- 
itor has  the  btirden  of  the  proof  on  opposition  to  discharge. 2" ^     The  mere 

279.  In  re  Boasberg.  1  A.  B.  R.  353  CSpecial  Master  X.  Y.) ;  In  re  Ferris, 
5  A.  B.  R.  246,  105  Fed.  356  (D.  C.  Iowa);  In  re  Logan,  4  A.  B.  R.  525,  103 
Fed.  876  (disapproved,  on  other  grounds.  In  re  Dow,  5  A.  B.  R.  400,  105  Fed. 
889);  In  re  Gaylord.  5  A.  B.  R.  411,  106  Fed.  833  (affirmed  in  7  A.  B.  R.  1,  112 
Fed.  668,  C.  C.  A.  N.  Y.);  In  re  Corn,  5  A.  B.  R.  478,  106  Fed.  143  (D.  C. 
Ga.);   In  re   Holman,  1   A..  B.   R.  600,  92  Fed.  512   (D.   C.   Iowa);   In  re   Hixon, 


.^    2638  OPPOSITION  TO  DISCHARGE.  1571 

filing  of  the  specifications  is  not  such  denial  of  the  petition  as  to  throw  the 
burden  of  disproof  on  the  bankrupt. 

In  re  Troeder,  17  A.  B.  R.  731  (C.  C.  A.  Mass.):  "All  agree  that  the  burden 
of  proof  exists  on  the  objecting  creditors  but  the  gravamen  of  proof  is  variously- 
stated." 

§  2636.  But  Presumptions  of  Fact  May  Shift  against  Bankrupt, 
and  Compel  Rebuttal. — But  the  presumptions  may  shift  against  the 
bankrupt  so  as  to  compel  him  to  rebut  them  i^^^  as  where  he  fails  to  ac- 
count reasonably  for  shortage  of  assets  or  to  explain  reasonably  his  in- 
ability to  do  so;-^^  or  where  an  omission  of  assets  is  once  shown,  the  duty 
then  arising  for  the  bankrupt  to  explain  it.-^^ 

Nevertheless  the  burden  of  proof *still  rests  on  the  opposing  creditors; 
for  the  discharge  must  be  granted  unless  it  is  proved  to  be  barred ;  that 
is  to  say,  the  discharge  is  a  presumptive  right,  not  a  privilege  to  be  granted 
on  proof  that  it  is  earned. ^'^^ 

§  2637.  Burden  of  Proof  Is  on  Objecting  Creditor  as  to  Each 
Element  of  Ground  Charged. — The  burden  of  proof  is  on  the  objecting 
creditor  as  to  each  element  necessary  to  be  proved. 

Thus,  where  the  ground  is  the  commission  of  the  crime  of  concealing 
assets  or  of  making  a  false  oath,  each  element  of  the  crime  must  be  proved 
and  be  proved  by  the  requisite  degree  of  proof. -^"* 

§  2638.    Evidence  Need  Not  Be  beyond  Reasonable  Doubt. — The 

fvidence  to  prove  the  bar  need  not  be  beyond  a  reasonable  doubt  in  any 
case. 2*^ 

1  A.  B.  R.  610,  93  Fed.  440  (D.  C.  Iowa);  In  re  Chamberlain,  11  A.  B.  R. 
95,  125  Fed.  629  (D.  C.  N.  Y.) ;  In  re  Kalster,  17  A.  B.  R.  52  (D.  C.  Nev.);  In 
re  Idzall,  2  A.  B.  R.  741,  96  Fed.  314  (D.  C.  Iowa);  In  re  Phillips,  3  A.  B.  R. 
542,  98  Fed.  844  (D.  C.  X.  Y.);  In  re  Wetmore,  3  A.  B.  R.  700,  99  Fed.  703 
(D.  C.  Pa.);  In  re  Keefer,  14  A.  B.  R.  290,  135  Fed.  885  (D.  C.  N.  Y.) ;  In  re 
Howden,  7  A.  B.  R.  194,  111  Fed.  723  (D.  C.  N.  Y.) ;  In  re  Hamilton,  13  A. 
B.  R.  335,  133  Fed.  823  (D.  C.  X.  Y.);  In  re  Locks,  5  A.  B.  R.  139,  104  Fed. 
783  (D.  C.  N.  Y.);  In  re  Fades,  16  A.  B.  R.  30,  143  Fed.  293  (C.  C.  A.  Ills.); 
In  re  McGurn,  4  A.  B.  R.  459,  102  Fed.  743  (D.  C.  Xev.);  In  re  May,  2  X.  B. 
N.  &  R.  95  (Ref.  X.  Y.);  In  re  Garrison,  17  A.  B.  R.  332  (C.  C.  A.  X.  Y.j; 
In  re  Cohen,  18  A.  B.  R.  85,  149  Fed.  178  (D.  C.  X.  Y.);  [1867]  In  re  Hill, 
Fed.  Cas.  6482;    [1841]    In  re   Herdic,   1   Fed.   242. 

280.  In   re   Leslie,  9   A.   B.   R.   561,   119   Fed.   406    (D.    C.   X.   Y.). 

281.  [n    re    Finkelstein,   3    A.    B.    R.    800,   101    Fed.    418    (D.    C.    X.    Y.). 
232.    In   re   Rauchenplat,  9   A.   B.   R.   766,   1   P.   R.   471    (D.   C   Porto   Rico). 

283.  Eankr.  Act,  §  14  (b).  See  ante,  "Xature  and  Grounds  of  Opposition," 
^    2469. 

284.  In  re  Garrison.  17  A.  B.  R.  832  (C.  C.  A.  X.  Y.);  impliedly.  Fellows 
V.  Freudenthal,  4  A.  B.  R.  490,  102  Fed.  731  (C.  C.  A.  Ills.);  instance,  failure 
to  prove  the  fopbidden  intent.  Smith  r.  Keegan,  7  A.  B.  R.  4,  111  Fed.  157 
(C.    C.    A.    Mass.). 

For  further  instances,  see  the  cases  cited  under  each  ground  of  objection, 
ante,    division    3. 

285.  In  re  Gross,  5  A.  B.  R.  271  (Ref.  X.  Y.) ;  In  re  Greensberg,  8  A.  B.  R. 
94,  114  Fed.  773  (D.  C.  Conn.);  In  re  Salisbury,  7  A.  B.  R.  771,  113  Fed.  833 
(D.  C.  N.  Y.). 


1572  REMINGTON   ON  BANKRUPTCY.  §  2640 

In  re  Howden,  7  A.  B.  R.  191,  111  Fed.  723  (D.  C.  N.  Y.):  "The  authorities 
are  unanimous  in  holding  that  the  burden  is  upon  the  opposing  creditor  to 
prove  his  objections,  not  necessarily  beyond  a  reasonable  doubt,  but  by  clear 
and  convincing  testimony." 

In  re  Leslie,  9  A.  B.  R.  561,  119  Fed.  406  (D.  C.  N.  Y.):  "It  is  not  necessary 
to  establish  this  concealment  of  assets  beyond  a  reasonable  doubt,  but  by  a  fair 
preponderance  of  credible  evidence  only." 

Thus,  as  to  failure  to  keep  proper  books  of  account. 2^*^ 

§  2639.  But  Where  "Offense"  Is  Charged,  Evidence  to  Be  "Clear," 
''Satisfying"  or  "Convincing." — But  where  the  ground  urged  is  the 
commission  of  the  crime  of  concealing  assets,  or  of  making  a  false  oath, 
the  proof  must  be  "clear,"  "satisfying"  or  "convincing." 

The  cases  do  not,  all  of  them,  enunciate  the  rule  in  these  precise  terms, 
but  the  consensus  of  the  authorities  will  be  found  to  establish  the  rule 
in  terms  substantially  as  given.^^" 

In  re  Leslie,  9  A.  B.  R.  561,  119  Fed.  406  (D.  C.  N.  Y.):  "The  evidence  must 
be  satisfactory." 

In  re  Dauchy,  10  A.  B.  R.  527,  122  Fed.  688  (D.  C.  N.  Y.) :  "This  court  has 
held  (In  re  Leslie,  9  A.  B.  R.  561,  119  Fed.  406),  and  holds,  that  the  conceal- 
ment of  property  in  these  cases  need  only  be  shown  by  a  fair  preponderance 
of  satisfactory  evidence.     This  is  not  a  criminal  proceeding,  in  any  sense." 

§  2640.  Whether  Same  Degree  of  Proof  Requisite  Where  Ground 
Charged  Not  a  Punishable  Offense. — And  the  same  degree  of  proof 
seems  to  have  been  required,  according  to  some  decisions,  in  cases  of 
objections  for  failure  to  keep  proper  books  of  account,  especially  before 
the   amendment  of    1903.-^^      But   it  would   seem,   on   principle,   that   the 

286.  In  re  Steed  &  Curtis,  6  A.  B.  R.  73,  107  Fed.  682  (D.  C.  N.  Ca:r.) ;  In  re 
Lafleche,  6  A.  B.  R.  483,  109  Fed.  307  (D.  C.  Vt.) ;  In  re  Bryant,  5  A.  B.  R. 
114,  104  Fed.  789  (D.  C.  Tenn.);  In  re  Polakoff,  1  A.  B.  R.  358  (Master,  af- 
firmed by  D.  C). 

287.  In  re  Troeder.  17  A.  B.  R.  732  (C.  C.  A.  Mass.);  In  re  Rauchenplat, 
9  A.  B.  R.  763,  1  P.  R.  471  (D.  C.  Porto  Rico);  In  re  Corn,  5  A.  B.  R.  478, 
106  Fed.  143  (D.  C.  Ga.) ;  In  re  Gaylord,  7  A.  B.  R.  1,  112  Fed.  668  (af- 
firming 5  A.  B.  R.  410,  106  Fed.  833  C.  C.  A.  N.  Y.) ;  In  re  Howden,  7  A.  B. 
R.  1,  111  Fed.  723  (D.  C.  N.  Y.) ;  In  re  Hamilton,  13  A.  B.  R.  335,  133  Fed. 
823  (D.  C.  N.  Y.);  In  re  Salisbury,  7  A.  B.  R.  770,  113  Fed.  833  (D.  C.  N. 
Y.);  In  re  Brumbaugh,  12  A.  B.  R.  204.  128  Fed.  971  (D.  C.  Penn.)  ;  In  re  Steed 
&  Curtis,  6  A.  B.  R.  73,  107  Fed.  682  (D.  C.  N.  Car.);  In  re  Wetmore,  3  A.  B. 
R.  700,  99  Fed.  703  (D.  C.  Pa.);  In  re  McGurn,  4  A.  B.  R.  459,  102  Fed.  743 
(D.  C.  Nev.);  Fellows  z'.  Freudenthal,  4  A.  B.  R.  490,  102  Fed.  731  (C.  C.  A. 
Ills.);  In  re  Marsh,  2  N.  B.  N.  &  R.  649;  In  re  Berner,  4  A.  B.  R.  383  (Ref. 
Ohio,  affirmed  by  D.  C.) ;  In  re  May,  2  N.  B.  N.  &  R.  93;  In  re  Cornell,  3  A. 
B.  R.  172,  97  Fed.  31  (D.  C.  N.  Y.);  In  re  Cohen,  18  A.  B.  R.  85  (D.  C.  N. 
Y.);  In  re  Cann,  6  A.  B.  R.  217  (D.  C.  Ore.);  Inferentially,  In  re  Covington, 
6  A.  B.  R.  373,  110  Fed.  143  (D.  C.  N.  Car.);  In  re  Lafleche,  6  A.  B.  R.  482, 
109  Fed.  307  (D.  C.  Vt.) ;  In  re  Ferris,  5  A.  B.  R.  246,  105, Fed.  356  (D.  C. 
Iowa);  In  re  Fitchard,  4  A.  B.  R.  609,  103  Fed.  742  (D.  C.  N  Y.) ;  In  re 
Bryant,  5  A.  B.  R.  114,  104  Fed.  789  (D.  C.  Tenn.);  In  re  Polakoff,  1  A.  B.  R. 
358    (Master's    Report,   affirmed    by    D.    C.    N.    Y.). 

288.  In  re  Hamilton,  13  A.  B.  R.  335,  133  Fed.  823  (D.  C.  N.  Y.) ;  In  re 
Chamberlain,  11  A.  B.  R.  95,  125  Fed.  629  (D.  C.  N.  Y.).  But  see.  In  re 
Hirsch,  2  A.  B.  R.  715,  96  Fed.  468  (D.  C.  Tenn.);  also,  after  the  amendment. 
In  re  Garrison,  17  A.   B.  R.  832    (C.   C.  A.  X.   Y  ). 


§   2642  OPPOSITION  To  DISCHARGE.  1573 

evidence  need  not  be  "convincing,"  nor  "satisfying,"  where  no  crime  is 
charged. 

§  2641.  "General  Examination"  of  Bankrupt  Admissible. — Testi- 
mony of  the  bankrupt,  given  upon  his  general  examination,  may  be  used 
in  opposition  to  his  discharge.^sa 

Even  if  not  written  out  nor  signed,  the  testimony  of  a  stenographer  or 
other  witness  who  heard  it  is  competent  to  prove  it.^^o 

In  re  Bard,  5  A.  B.  R.  810,  108  Fed.  208  (D.  C.  N.  Y.):  "In  the  present  case 
it  appears  that  the  bankrupt's  testimony  upon  his  previous  examination  was  not 
formally  signed  by  him,  although  numerous  adjournments  were  signed  by  him 
on  the  minutes.  When  his  testimony  was  offered  in  support  of  the  specifica- 
tions, it  was  rejected,  apparently  on  the  ground  of  incompetency  alone,  and  not 
because  it  had  not  been  signed,  or  because  the  bankrupt  might  wish  to  make 
corrections  in  the  written  statement.  The  testimony  was  competent  and  should 
be  received  when  properly  evidenced.  Proper  evidence  of  what  his  testimony 
was,  would  be  either  his  own  signature  and  verification,  or,  in  the  absence  of 
that,  the  testimony  of  the  person  who  took  the  minutes.  The  latter,  in  fact,  is 
the  ordinary  mode  o/  proving  the  testimony  of  a  party  given  on  a  previous 
trial  in  an  independent  cause.  Subsequently,  before  the  referee,  the  person  who 
took  the  notes  of  the  bankrupt's  examination  testified  that  the  notes  of  the  testi- 
mony were  truly  and  correctly  taken.  The  testimony  was  then  again  offered 
and  again  rejected.  It  should  have  been  received.  The  signature  of  the  bank- 
rupt was  no  longer  necessary;  nor  was  it  necessary  that  he  should  be  directed 
either  to  sign  it.  or  correct  it,  if  he  wished.  By  the  testimony  of  the  witness 
it  was  duly  proved  and  was  competent.  Thenceforward  the  burden  was  upon 
the  bankrupt  to  overcome  it." 

§  2642.  Competent  Though  Crime  Charged. — And  such  testimony 
is  competent,  ahhough  a  crime  is  charged,  the  opposition  to  a  discharge 
not  being  a  criminal  proceeding.-^^ 

289.  In  re  Dow,  5  A.  B.  R.  400,  105  Fed.  889  (D.  C.  Iowa);  In  re  Gaylord, 
7  A.  B.  R.  1,  112  Fed.  668  (C.  C.  A.  N.  Y.,  affirming  5  A.  B.  R.  410);  In  re 
Bard,  5  A.  B.   R.  810,  108  Fed.  208   (D.   C.  N.  Y.). 

In  re  Leslie,  9  A.  B.  R.  561,  119  Fed.  406  (D.  C.  N.  Y.) :  It  is  admissible 
either  as  admissions  or  in  contradiction  of  his  testimony  given  on  the  di';- 
charge    hearing. 

In  re  Goodhile,  12  A.  B.  R.  380,  130  Fed.  782  (D.  C.  Iowa);  analogously,  In 
re  Wiesen  Bros.,  14  A.  B.  R.  347,  135  Fed.  442  (D.  C.  Pa.);  In  re  Knaszak, 
18  A.  B.  R.  189,  151  Fed.  503  (D.  C.  N.  Y.) ;  contra.  In  re  Marx,  4  A.  B.  R. 
521,  102  Fed.  676  (D.  C.  Ky.),  and  In  re  Logan,  4  A.  B.  R.  525  (D.  C.  Ky., 
disapproved  by  C.  C.  A.  in  In  re  Gaylord,  7  A.  B.  R.  1,  112  Fed.  668,  and  by 
D.  C.  Iowa,  in  In  re  Dow,  5  A.  B.  R.  400,  105  Fed.  889). 

290.  Obiter,  In  re  Knaszak,  18  A.   B.   R.  189,   151   Fed.  503    (D.  C.  N.   Y..). 

291.  In  re  Dow,  5  A.  B.  R.  400,  105  Fed.  889  (D.  C.  Iowa);  In  re  Gaylord, 
7  A.  B.  R.  1,  112  Fed.  668  (C.  C.  A.  N.  Y.,  affirming  5  A.  B.  R.  410);  In  re 
Leslie,  9  A.  B.  R.  561,  119  Fed.  406  (D.  C.  N.  Y.);  In  re  Goodhile,  12  A.  B.  R. 
380,  130  Fed.  782  (D.  C.  la.);  In  re  Krueger,  2  Low.  182;  In  re  Marx,  4  A.  B. 
R.  521,  102  Fed.  676  (D.  C.  Ky.) ;  contra.  In  re  Logan,  4  A.  B.  R.  525  (D.  C.  Ky.). 

As  to  his  testimony  in  state  court  proceedings,  see  In  re  Eaton,  6  A.  B.  R. 
531,  110  Fed.  731  (D.  C.  N.  Y.). 


1574  REMINXTOX    OX    BANKRUPTCY.  §   2647 

§  2643.  But  of  Other  Witnesses,  Not  Admissible. — Testimony  of 
other  witnesses  taken  upon  general  examination  is  not  admissible  in  op- 
position to  discharge. -^2 

§  2644.  Unless  So  Stipulated. — But  such  testimony  is  admissible  if  so 
stipulated. 293 

The  testimony  of  the  bankrupt  actually  given  elsewhere  but  admitted 
by  stipulation  of  counsel  as  part  of  the  bankrupt's  general  examination, 
without  being  actually  resworn  to  by  the  bankrupt,  cannot,  however,  con- 
stitute a  false  oath  to  bar  discharge. ^^-^ 

§  2645.    Ordinary  Rules  Determine  Admissibility  and  Credibility. 

— The  ordinary  rules  determining  tbe  credibility  of  witnesses  and  the  ad- 
missibility of  evidence  prevail  in  hearings  in  opposition  to  discharge. 

§  2646.  Failure  to  Produce  Material  Witnesses  Who  Are  Ao- 
'cessible. — Failure  to  produce  material  witnesses  who  could  have  assisted 
the  bankrupt  in  accounting  for  the  disappearance  of  his  estate  may  be  evi- 
dence against  him.^^-^  Again,  where  a  creditor  has  sworn  positively  to 
allegations  in  his  specifications  as  being  under  his  own  knowledge  and  yet 
fails  to  take  the  stand,  inference  unfavorable  to  the  truth  of  his  allega- 
tions may  be  drawn. ^^^ 

§  2647.  Failure  of  Creditors  to  Take  Steps  to  Recover  Property 
Alleged  Fraudulently  Concealed. — Failure  of  creditors  to  cause  steps 
to  be  taken  to  recover  the  property  alleged  to  be  fraudulently  concealed, 
is  to  be  taken,  in  a  doubtful  case  at  any  rate,  as  an  admission  that  they 
do  not  deem  the  proof  of  fraud  very  strong,  or  that  the  property  did  not 
constitute  property  "belonging  to  the  estate,"  after  the  election  of  the 
trustee,  so  as  to  constitute  concealment  of  property  belonging  to  the  estate 
"from  the  trustee. "^9" 

But  the  hearing  upon  the  discharge  will  not  be  postponed  to  await  the 
outcome  of  pending  suits  for  the  recovery  of  assets. -^^ 

Paxton  z'.  Scott,  10  A.  B.  R.  81  (Xeb.):  "The  hearing  on  this  application 
will  not  ordinarily  be  staj^ed  pending  protracted  litigation  in  other  courts,  it 
being  the  policy  of  the  Bankrupt  Law  to  secure  the  debtor's  discharge  as  soon 
as  consistent  with  justice." 

292.  In  re  Goodhile,  12  A.  B.  R.  380,  130  Fed.  782  (D.  C.  Iowa);  In  re  Wil- 
cox, 6  A.  B.  R.  362,  109  Fed.  628  (C.  C.  A.  N.  Y.) ;  contra  (if  the  bankrupt 
be  actually  present  in  person  or  by  counsel),  In  re  Cooke,  5  A.  B.  R.  434j_109 
Fed.  631   (D.   C.   N.   Y.). 

293.  In   re   Semmel,  9   A.    B.    R.   352,   118   Fed.   487    (D.    C.   Pa.). 

294.  In  re  Goldsmith,  4  A.  B.  R.  234,  101  Fed.  570  (D.  C.  Penn.).  Ante,  §§ 
2530,   2540. 

295.  In  re  Hershkowitz,  14  A.  B.  R.  91,  136  Fed.  950  (D.  C.  X.  Y.). 

296.  Inferentially,  In  re  Romine,  14  A.  B.  R.  785,  138  Fed.  837  (D.  C.  W. 
Va.). 

297.  In  re   Hirsch,  2  A.   B.   R.   723,  96   Fed.   468    (D.   C.   Tenn.). 

298.  In  re  Cornell,  3  A.  B.  R.  173,  97  Fed.  29  (D.  C.  N.  Y.).     Post,  §  2696. 


8   2650  OPPOSITION  TO  DISCHARGE.  1575 

§  2648.  Evasive  Testimony  of  Bankrupt:  Credibility. — Evasive 
testimony  of  the  bankrupt  is  a  material  consideration  in  determining  the 
credibility  of  his  testimony. -^^ 

In  re  Leslie,  9  A.  B.  R.  561,  119  Fed.  406  (D.  C.  N.  Y.) :  "Courts  are  not 
compelled  to  accept  the  bald  statements  of  interested  witnesses,  or  of  any  wit- 
ness when  his  statements  are  laden  with  inconsistencies,  or  burdened  with  in- 
herent improbabilities,  or  descredited  by  incriminating  confessions.  It  is  not 
probable  this  bankrupt  was  receiving-  and  paying  out  so  much  money  to  divers 
individuals  at  this  time  that  he  fails  to  recollect  any  of  the  particulars  of  this 
alleged  transaction  with   the  trustee. 

"There  is  much  in  evidence  of  this  bankrupt  displaying  such  gross  ignorance, 
real  or  pretended,  of  his  business  afifairs,  that  the  court  is  justified  in  holding 
that  his  evidence  is  not  entitled  to  credit  on  either  of  two  grounds:  First,  such 
want  of  knowledge,  memory,  and  intelligence  as  to  make  his  testimony  unre- 
liable; or,  secondly,  such  an  unwillingness  to  disclose  the  truth  as  to  wholly 
discredit  him." 

§  2649.    Contradictory  Statements  and  Incredible  Explanations. 

— So,  also,  contradictory  statements  and  extraordinary  and  incredible  ac- 
counting for  the  disappearance  of  assets,  are  to  be  taken  as  indicia  of  fraud 
and  concealment.^^*^ 

§  2650.  Impeachment  of  Witness  by  Inherent  Improbability  of 
Own  Testimony. — A  witness  may  be  as  thoroughly  discredited  by  the 
inherent  improbability  of  his  own  testimony  as  by  the  direct  testimony 
of  other  witnesses.^o/ 

Inferentially,  In  re  Henderson,  12  A.  B.  R.  351,  130  Fed.  385  (D.  C.  Pa.): 
"The  question  certified  by  the  referee  is  purely  a  question  of  fact,  and  depends 
so  largely  upon  the  credibility  of  the  testimony  that  his  decision  is  entitled  to 
more  than  the  usual  weight.  If  the  bankrupt's  explanation  were  true  concerning 
the  manner  in  which  he  spent  the  large  sum  of  money  that  he  received  in  a 
single  month,  it  would  certainly  have  been  possible  for  him  to  produce  some 
corroborating  evidence,  and  the  referee  lays  proper  stress  upon  the  absence 
of  any  witness  who  could  speak  of  the  bankrupt's  habits  of  gambling  and 
dissipation,  to  which  he  attributes  the  loss  of  the  money. 

"The  order  of  the  referee  directing  the  bankrupt  to  return  $5,000  to  his  trus- 
tee is  approved." 

Inferentially,   In  re   Shultz,  14   A.   B.   R.   .".78   (D.   C.   N.   Y.)  :     -The  burden  of 

299.  In   re   O'Gara,   ?^   A.   B.   R.   349,  97   Fed.   932    (D.    C.    Ore.). 

300.  In  re  Hershkowitz,  14  A.  B.  R.  86,  136  Fed.  950  (D.  C.  N.  Y.) ;  In  re 
Leopold,  5  A.  B.  R.  279  (Ref.  N.  Y.) ;  In  re  O'Gara,  3  A.  B.  R.  349,  97  Fed. 
932  (D.  C.  Ore.).  Compare,  to  same  general  effect;  In  re  Conroy,  14  A.  B. 
R.  250,  134  Fed.  764  (D.  C.  Pa.) ;  Inferentially,  In  re  McCormick,  3  A.  B.  R. 
340,  97  Fed.  566  (D.  C.  N.  Y.).  Also  compare.  In  i-e  Schlesinger,  3  A.  B. 
R.  342,  97  Fed.  935  (D.  C.  N.  Y.) ;  In  re  Dews,  3  A.  B.  R.  691,  96  Fed.  181 
(D.  C.  R.  I.);  In  re  Cotton  Co.,  14  A.  B.  R.  194  (D.  C.  Ark.-):  Too  much  "I 
don't    remember."      In    re   Weinreb,    16    A.    B.    R.    703,    146    Fed.    243    (C.    C.    A. 

'N.  Y.);  Barton  Bros.  z>.  Produce  Co.,  14  A.  B.   R.   502,  136   Fed.  355   (C.   C.  A. 
Ark.). 

301.  In  re  Leslie,  9  A.  B.  R.  56],  119  Fed.  406  (D.  C.  N.  Y.) ;  inferentially. 
Barton  Bros.  r.  Produce  Co.,  14  A.  B.  R.  502,  136  Fed.  355  (C.  C.  A.  Ark.); 
inferentially.  In  re  Conroy,  14  A.  B.  R.  250,  134  Fed.  764  (D.  C.  Pa.);  in- 
ferentially. In  re  Frankford,  15  A.  B.  R.  210   (D.  C.  N.  Y.). 


1576  REMINGTON  ON  BANKRUPTCY.  §  2654 

proof  rests  upon  the  claimants  and  though,  as  a  general  rule,  the  referee  would 
be  bound  by  the  positive  uncontradicted  evidence  of  the  petitioner,  still  if  in 
his  judgment  such  testimony  was  so  indefinite  and  his  statements  so  conflicting 
as  to  raise  doubts  of  the  petitioner's  sincerity,  then  he  was  justified  in  dis- 
believing and  disregarding  such  discredited  testimony." 

And  merely  that  the  witness  is  uncontradicted  does  not  require  the  ac- 
ceptance of  his  testimony. 

In  re  Domenig,  11  A.  B.  R.  555,  128  Feb.  146  (D.  C.  Pa.):  "Much  will  neces- 
sarily depend  on  the  manner  of  the  witnesses  while  under  examination,  and 
referees  should  feel  themselves  obliged  to  consider  of  their  own  motion  the 
credibility  of  the  witness  and  of  the  story  that  is  told,  even  if  there  should  be 
no  opposing  testimony.  The  mere  fact  that  the  witness  has  not  been  con- 
tradicted does  not  require  the  acceptance  of  the  testimony." 

§  2651.  Nevertheless  Merely  Suspicious  Circumstances  Not  Suffi- 
cient Where  Witness  Uncontradicted. — But  where  the  whole  proof 
rests  on  the  sole  testimony  of  the  bankrupt  himself,  merely  that  the  cir- 
cumstances are  svispicious  is  not  enough. ^*^- 

§  2652.  Likwise  Mere  Evasive  Testimony  and  Inability  to  Ac- 
count Reasonably  for  Assets  Not  Per  Se  Proof. — Mere  evasive  and 
disingenuous  testimony  of  the  bankrupt  are  insufficient  to  bar  discharge 
even  if  sufficient  to  discredit  his  testimony,  if  it  falls  short  of  sustaining 
the  burden  of  the  proof.^os 

Likewise,  inability  of  the  bankrupt  to  account  reasonably  for  the  dis- 
appearance of  assets  in  his  possession  shortly  before  bankruptcy  is  not, 
per  se,  proof  of  his  concealment  of  them.^o^ 

§  2653.    Though  Strong  Evidence  Tending  to  Discredit. — But  is 

strong  evidence  tending  to  prove  concealment  of  them.-'^'^^ 

§  2654.  Judicial  Cognizance  of  Court  Records. — Undoubtedly  the 
court  should  take  judicial  cognizance  of  all  the  records  in  the  case,  whether 
before  the  judge  or  the  referee.  The  proper  practice  however,  is  to  call 
the  attention  of  the  court  to  the  particular  part  of  the  record  of  which 
judicial  cognizance  is  desired,  that  the  opposing  party  may  have  oppor- 
tunity to  rebut  the  inferences  to  be  drawn  therefrom.  This  is  especially 
true  of  a  bankruptcy  proceedings,  which  is  itself  made  up  of  a  multitude 

302.  In  re  Kolster,  17  A.  B.  R.  52  (D.  C.  Nev.);  In  re  Ferris,  5  A.  B.  R. 
246,    105    Fed.    356    (D.    C.    Iowa). 

303.  In  re  Gaylord,  7  A.  B.  R.  1,  112  Fed.  668  (C.  C.  A.  N.  Y.,  affirming  5 
A.  B.  R.  410);  In  re  Leslie,  9  A.  B.  R.  561,  119  Fed.  406  (D.  C.  N.  Y.) ;  In  re 
Kolster,  17  A.  B.  R.  55  (D.  C.  Nev.);  In  re  Cohen,  18  A.  B.  R.  84  (D.  C, 
N.  Y.). 

304.  In  re   Idzall,  2  A.   B.  R.  741,  96   Fed.  314   (D.   C.   Iowa). 

305.  See  cases  ante  under  title  "Summary  Orders  on  Bankrupts,"  §  1851. 


§   2655  OPPOSITION  TO  DISCHARGE.  1577 

of  dependent  proceedings  wherein  the  issues  are  different  and  the  facts 
variant. 

And  it  has  been  held,  that  the  court  may,  but  is  not  required  to,  take 
judicial  notice  of  court  records  in  the  same  court  but  in  different  pro- 
ceedings.306 

§  2655.  Res  Judicata  and  Estoppel. — A  decree  finding  a  conveyance 
fraudulent  in  a  suit  in  the  state  court,  wherein  the  bankrupt,  trustee 
(as  intervenor)  and  the  fraudulent  transferee  are  parties,  is  probably  bind- 
ing as  res  judicata  on  the  opposition  to  discharge  so  far  as  the  issues 
are  identical,  although  the  purposes  of  the  two  proceedings  are  different. 

In  re  Skinner,  3  A.  B.  R.  163,  97  Fed.  190  (D.  C.  Iowa):  "It  further  appears 
in  evidence  that  the  trustee,  P.  A.  Sawyer  intervened  in  a  suit  in  equity  *  *  * 
to  which  suit  *  *  *  the  bankrupt  was  a  party  and  in  this  suit  the  trustee  set 
up  the  alleged  fraudulent  tranfers  *  *  *  g^^d  upon  the  hearing  of  this  suit  it 
was  adjudged  [that  the  conveyance  was  fraudulent  and  should  be  set  aside]. 
In  these  proceedings  the  bankrupt,  his  wife,  and  the  trustee,  representing  the 
creditors,  were  parties,  and  the  decree  must  be  held  binding  upon  them,  and 
to  be  conclusive  upon  the  vital  question  litigated,  to  wit,  whether  the  transfer 
to  the  wife  of  the  property  of  the  bankrupt  were  or  were  not  fraudulent  as  to 
his  creditors.  Thus,  in  Southern  Pac.  R.  R.  Co.  v.  U.  S.,  168  U.  S.  1-48,  it  is 
said  that: 

"  'The  general  principle  announced  in  numerous  cases  is  that  a  right,  ques- 
tion, or  fact  distinctly  put  in  issue,  and  directly  determined  by  a  court  of  com- 
petent jurisdiction,  as  a  ground  of  recovery,  cannot  be  disputed  in  a  subsequent 
suit  between  the  same  parties  or  their  privies;  and,  even  if  the  second  suit  is 
for  a  different  cause  of  action,  the  right,  question,  or  fact,  once  so  determined 
must,  as  between  the  same  parties  or  their  privies,  be  taken  as  conclusively 
established,   so  long  as  the  judgment  in  the  first  suit   remains  unmodified.' 

"It  having,  therefore,  been  conclusively  determined  in  a  suit  between  the 
bankrupt  and  his  creditors,  represented  by  the  trustee,  that  the  bankrupt  had 
conveyed  to  his  wife,  without  consideration,  and  with  intent  to  defraud  his 
creditors,  property  to  a  large  amount,  and  it  appearing  from  the  record  in 
this  case  that  when  the  bankrupt  filed  his  petition  and  schedules  he  stated  that 
he  had  no  property  of  any  kind,  except  a  possible  equity  of  redemption  in  1,440 
head  of  sheep  mortgaged  to  a  named  creditor,  the  court  is  justified  in  finding 
that  the  bankrupt  has  knowingly  and  fraudulently  concealed  from  his  trustee 
^property  to  a  large  amount,  which  in  fact  forms  part  of  his  estate,  and  there- 
fore, under  the  provisions  of  §§  14  and  29  of  the  Bankrupt  Act,  the  peti- 
tioner is  not  entitled  to  a  discharge.    Judgment  accordingly." 

But  compare,  contra.  In  re  Cornell,  3  A.  B.  R.  172,  97  Fed.  29  (D.  C.  N.  Y.) : 
"The  issue  in  the  creditors'  suit  is  not  identical  with  that  presented  under  the 
specifications  in  opposition  to  discharge.  A  decision  adverse  to  defendants  in 
the  creditors'  suit  would  not  necessarily  determine  the  right  to  discharge.  If 
one  of  the  intents  of  the  assignment  of  April  13,  1896,  was  to  hinder  payment 
of  the  existing  suit,  that  would  authorize  a  decree  for  the  plaintiflf  and  yet  be 
no  sufficient  ground  to  deny  a  discharge  under  the  Bankrupt  Act.  To  have 
this  effect  there  must  be  evidence  of  concealment  of  property  from  the  trustee." 

Obviously,   although   all   the   issues  might  not  be  identical,  yet,  to  the 
306.    In  re  Osborne,  8  A.  B.  R.  165,  115  Fed.  1    (C.   C.  A.  Mass.). 


1578  REMINGTON  ON   BANKRUPTCY.  §  2660 

extent  that  they  are  identical  it  would  be  binding.  The  parties  are  not 
identical,  to  be  sure,  but  all  the  parties  to  the  discharge  proceedings  were 
parties  in  the  former  suit  and  it  is  difficult  to  see  how  such  former  finding 
of  fraudulent  conveyance  could  be  evaded.  Likewise,  a  former  decree 
between  the  debtor  and  the  objecting  creditor  declaring  a  transfer  not 
fraudulent,  has  been  held  res  adjudicata  in  bankruptcy;^"'  and  between 
the  trustee  and  an  alleged  fraudulent  transferee  declaring  the  transfer 
not  fraudulent. 3''^ 

Similarly,  the  bankrupt  is  bound  by  the  allowance  of  a  claim  by  the 
referee.  The  bankrupt  is  bound,  on  discharge,  by  the  allowance  of  claims 
by  the  referee  where  he  has  not  requested  the  trustee  to  object  to  their 
allowance.^*^*^ 

§  2656.  Discharge  Hearing  Not  Postponed  to  Await  Outcome  of 
Fraudulent  Conveyance  Suit. — But  the  hearing  upon  "a  petition  for  dis- 
charge Avill  not  be  postponed  to  await  the  determination  of  a  suit  in  the 
state  court  to  set  aside  the  fraudulent  conveyance  complained  of  as  the 
concealment.-^  ^*^ 

§  2657.  Declarations  of  Alleged  Fraudulent  Transferrer. — Dec- 
larations of  an  alleged  fraudulent  transferrer  have  been  held  admissible 
for  the  purpose  of  impeaching  his  own  title,  even  if  not  admissible  against 
the  transferee."^^ 

SUBDIVISION    "d/' 

Costs  t)N  Discharge. 
§  2658.    Costs  on  Discharge. — Costs  may  be  awarded  on  discharge.^i^ 

§  2659.  Power  to  Award  Costs  Inherent. — Power  to  award  costs  in 
discharge  proceedings  is  inherent.'' ^^ 

§  2660.  Referee  Allowed  Compensation  as  Special  Master  on 
Discharge.- — And  if  the  referee  acts  as  special  master,  he  may  be  allowed 
compensation  therefor,  the  same  as  any  other  special  master.-^ ^^ 

307.  In  re   McGurn,   4  A.   B.   R.   459,   102   Fed.   74:^    (D.   C.   Nev.). 

308.  Tn   re   Tiffany,    17   A.    B.    R.   298    (D.   C.   N.    Y.). 

309.  In   re   Carton   &   Co.,   17   A.    B.   R.   343    (D.    C.    N.    Y.). 

310.  Paxton  v.  Scott,  10  A.  B.  R.  81  (Neb.);  In  re  Cornell,  3  A.  B.  R.  173, 
97  Fed.  29  (D.  C.  N.  Y.).     See  ante,  §  2647. 

311.  In  re   Gross,  5  A.  B.   R.   271   (Ref.   N.   Y.,  affirmed  by   D.   C.j. 

312.  Bankr.  Act,  §  2  (18):  "Tax  costs,  whenever  they  are  allowed  by  law, 
and  render  judgments  therefor  against  the  unsuccessful  party,  or  the  s^iccess- 
ful  party  for  cause,'  or  in  part  against  each  of  the  parties,  and  against  estates, 
in  proceedings  in  bankruptcy." 

313.  In  re  Wolpert,  1  A.  B.  R.  436  (Special  Master  N.  Y.) ;  [1867]  In 
re  George,  Fed.  Cases  5,326;  [1867]  In  re  Holgate,  Fed.  Cases  6,601;  [1841] 
In  re  Guild,  Fed.  Cases  5,860;  State  of  Pennsylvania  v.  W.  &  B.  Bridge  Co., 
IS    How.    460. 

314.  In  re  Grossman.  6  A.  B.  R.  510,  111  Fed.  507  (D.  C.  :\Iich.) ;  In  '•e 
Bragassa  v.  St.  Louis  Cycle  Co.,  5  A.  B.  R.  700,  107  Fed.  77  (C.  C.  A.  TexJ; 
Contra,  In  re  Troth,  4  A.  B.  R.  780,  104  Fed.  291   (D.   C.  Ohio^. 


§  2661  opposiTiox  TO  discharge;.  1579 

Fellows  V.  Freudenthal,  4  A.  B.  R.  490,  102  Fed.  731  (C.  C.  A.  Ills.):  "In 
reference  to  the  remaining  assignment  of  error,  the  award  of  taxable  costs 
against  the  objecting  creditors  was  authorized  by  subdivision  18  of  §  2  of  the 
Bankruptcy  Act,  and  the  allowance  of  $25  as  costs  of  the  referee  on  the  hearing 
is  the  only  debatable  question.  Section  40  of  the  act  expressly  provides  that 
'referees  shall  receive  as  full  compensation  for  their  services,  payable  after 
they  are  rendered,  a  fee  of  ten  dollars  deposited  with  the  clerk  at  the  time  the 
petition  is  filed  in  each  case,'  together  with  a  small  percentage  on  payments 
out  of  the  estate.  This  provision  is  in  harmony  with  the  purpose  manifested 
throughout  the  act,  to  so  limit  all  allowances  as  to  secure  economical  ad- 
ministration of  proceedings  and  estates  in  bankruptcy;  and  the  duty  of  the 
courts  to  construe  and  administer  the  act  in  conformity  with  that  purpose  is 
well  declared  and  exemplified  in  the  opinion  of  Jenkins,  Circuit  Judge,  speak- 
ing for  this  court,  in  the  recent  case  of  In  re  Curtis  (4  Am.  B.  R.  17),  100  Fed. 
784.  If  the  charge  ill  question  is  for  services  rendered  by  the  referee  in  the  per- 
formance of  the  duties  of  a  referee  under  the  act,  it  is  plainly  not  taxable  as 
costs  in  this  instance;  for,  however  inadequate  the  prescribed  compensation  may 
be,  he  takes  the  office  cum  onere,  and  must  abide  by  the  fees  so  fixed.  In  §§ 
38  and  39  the  jurisdiction  and  duties  of  referees  are  specifically  enumerated, 
but  the  matter  of  hearing  applications  for  a  discharge  is  not  included,  either 
in  direct  terms  or  inferentially,  while  subdivision  4  of  §  38  clearly  excepts 
such  hearings  from  his  jurisdiction.  Moreover,  §  14b  expressly  provides  that 
'the  judge  shall  hear  the  applications  for  a  discharge,  and  such  proofs  and  pleas 
as  may  be  made  in  opposition  thereto.'  As  the  District  Courts  are  invested 
with  jurisdiction  both  at  law  and  in  equity,  to  'enable  them  to  exercise  original 
jurisidiction  in  bankruptcy  proceedings'  (§  2),  the  power  unquestionably  exists 
to  order  a  reference  for  the  purpose  of  the  hearing  pursuant  to  the  equity 
practice;  and  it  would  be  practically  impossible  to  conduct  the  hearings  other- 
wise in  districts  like  the  Northern  District  of  Illinois,  with  the  press  of  other 
business,  and  cases  in  bankruptcy  under  the  present  act  numbering  in  the 
thousands.  The  reference  is  then  made  to  the  referee  in  the  capacity  of  special 
master,  not  as  referee  in  bankruptcy,  and  for  a  duty  independent  of  the  latter 
office,  and  in  no  sense  incompatible.  *  *  *  For  the  necessary  service  so  per- 
formed under  the  order  of  reference,  the  appointee  is  entitled  to  a  reasonable 
allowance,  unafifected  by  the  fact  that  he  held  as  well  the  office  of  referee  in 
bankruptcy,  and  was  probably  chosen  for  that  reason." 

§  2661.  Awarding  Costs  against  Creditors — Costs  of  discharge  may 
be  awarded  against  the  creditors  on  discharge,  where  iinsuccessful.^i^ 
Even  if  successful,  yet  the  costs  may  be  taxed  against  the  objecting  cred- 
itors, and  they  be  given  a  judgment  over  against  the  bankrupt  therefor. 

315.    In  re  Wolpert,  1  A.  B.   R.  436   (Special   Master   N.   Y.). 


CHAPTER  LR^ 

Effect  of  Discharge  ox  the  Rights  of  the  Parties. 

Synopis   of   Chapter. 

DIVISION    1. 

§  2662.  Right  to  Discharge  and  Effect  of  Discharge,  Distinct  Matters. 

§  2663.  Effect  of  Discharge  on  Particular  Debt  to  Be  Determined  When  En- 
forcement of  Debt  Attempted. 

§  2664.  Decree  of  Discharge  to  Be  General. 

§  2665.  No   Limiting  of  Effect,  nor  Excepting  of  Particular   Debts,   in  Decree.- 

§  2666.  Except  Where  Former  Discharge  Refused. 

§  2667.  Urging  Debt  to  Be  Not  "Provable"  or  to  Be  within  Exceptions  of  §  17, 
Not  "Collateral  Attack." 

§  2668.  Discharge  Bars  Debts,  Not  Enforcement  of  Liens  or  Title  to  Property. 

§  2669.  Bankrupt  Remains  Liable  on  Debts  Not  Dischargeable,  Collectible  Out 
of  Subsequently-Acquired  Assets. 

§  2670.  Nondischargeable  Debts,  if  "Provable,"  Share  in  Dividends. 

§  2671.  Secondary  Liability    Unaffected. 

§  2672.  Debt  Not  Extinguished,  but  Its  Enforcement  Barred. 

§  2673.  Valid  Liens  Not  Cast  Oft',  nor  Their  Enforcement  Prevented. 

§  2674.  Transactions  Themselves  Not  Invalidated  because  of  Being  Bars  to 
Discharge. 

§  2675.  Contractual  Relations  Not  Dissolved,  unless  Mergeable  in  "Provable" 
Debt  at  Time  of  Bankruptcy. 

§  2676.  Contracts  for  Liens  on  After-Acquired  Property  Discharged  if  Merge- 
able in  Provable  Debt  at  Time  of  Bankruptcy. 

§  2677.  But  Where  Lien  Exists  in  Presenti  before  Bankruptcy,  Though  Prop- 
erty Acquired  Afterwards,  Discharge  No  Bar. 

§  2678.  Thus,  Assignments   of  Unearned  Wages. 

§  2679.  "Waiver  of  Exemption"  Notes;  No  Levy  on  Exempt  Property  after 
Discharge. 

§  2680.  Former  Refusal  of  Discharge  Res  Judicata  as  to  All  Claims  Then 
Provable. 

§  2681.  But  Not  if  Former  Refusal  Was  under  State  Insolvency  Proceedings. 

DIVISION  2. 

§  2682.  Discharge  to  Be  Set  Up  as  Defense,  Else  Waived. 

§  2683.  Facts  Showing  Jurisdiction  to  Grant  Discharge  to  Be  Pleaded. 

§  2684.  Certificate  of  Discbarge  under  Seal  of  Court  Proves  Discharge. 

§  2685.  Interposition  of  Discharge  Throws  Burden  on  Plaintiff  to  Show  Debt 

Excepted. 
§  2686.  No  Collateral  Attack  on  Order  of  Discharge. 
§  2687.  Erroneous    Judgment    Notwithstanding    Discharge    Duly    Pleaded    and 

Proved,  Res  Judicata,  until  Reversed. 

DIVISION    3. 

§  2688.  Suits  against  Bankrupt  Stayed  until  Adjudication. 

§  2689.  Available  to  Voluntary  and  Involuntary  Bankrupt  Alike. 


EFFECT  OF  DISCHARGE.  158i 

§  3690.  Stay    under    §    11    for    Bankrupt's    Benefit,    to    Permit    Interposition    of 

Discharge. 
§  2691.  Debt  Dischargeable,  Else  No  Stay. 
§  2692.  But  Proceedings  on  Nondischargeable  Debts  Stayable  Where  Creditor's 

Rights  Involved. 
§  2693.  Error  in  Holding  Claim  Dischargeable  No  Warrant  for  Disobedience. 
§  2694.  Proceedings  Other  than  "Suits"  Stayed. 

§  2695.  Ipso  Facto  Stayed  Till  Adjudication  or  Dismissal  of  Petition. 
§  2696.  Thereafter,   Further   Stayed,  on  Application,  until  Discharge  Heard. 
§  2697.  Not  Only  Pending  Suits  but  Also  Subsequent  Suits  Stayed. 
§  2698.  Further  Stay  Discretionary. 

§  2699.  Comity  Requires  Request  for  Stay  First  in  Court  Where  Action  Pending. 
§  2700.  But  Bankruptcy  Court  May  Enjoin  if  Necessary. 
§  2701.  Referee  No  Jurisdiction  to  Enjoin  Court  or  Court  Officer. 
§  2702.  Stay  Applies  to   All   Incidents  of  Proceedings  in   State   Courts. 
§  2703.  No    Further    Stay    than    for    Year,    unless    Application    for    Discharge 

Filed  within  Year  Not  Yet  Acted  Upon. 
§  2704.  If  Stay  Not  Applied  for.  Judgment  and  Orders  of  State  Court  Valid. 
§  2705.  Or  if  Discharge   Refused,    Court   May   Render  Judgment  in    Personam 

and  Judgment  Will  Be  Good. 
§  2706.  Or  if  Not  Interposed  Though  Granted,  Judgment  Valid. 
§  2707.  Statutory  Cancellation  of  Subsequently-Rendered  Judgments. 
§  2708.  No  Vacating  of  Judgment  Rendered  after  Discharge,  for  Interposition 

of  Discharge. 
§  2709.  Stay  Only  Protects  Bankrupt  from  Judgment  in  Personam — Judgments 

in  Rem  as  to  Property  UnafTected. 
§  2710.  Stay  Dissolved  after  Discharge  Granted  or  Refused  or  Dismissed. 
§  2711.  Qualified  Stay  Where  Levy  Sought  on  Exempt  Property  Not  Exempt 

as  to   Levy  Sought. 
§  2712.  And  Where  Judgment  Necessary  to  Perfect  Rights  against  Surety,  or 

Property. 
§  2713.  No  Deprivation  of  Right  of   Discharge  by   Staying  Discharge   Hearing 

or   Refusing  to   Stay   Creditor's   Suits   Where  Judgment   Requisite   to 

Perfect  Creditor's  Rights  against  Sureties,  etc. 

DIVISION  4. 

§  2714.  Revival  of  Discharged  Debt. 

§  2715.  No  New  Consideration  Necessary. 

§  2716.  Part  Payment  on  Account  Insufficient  to  Revive  Debt. 

§  2717.  But  Discharge  Waivable  by  New  Promise. 

§  2718.  New  T^romise  Not  Necessarily  in  Writing. 

§  2719.  But  to  Be  More  than  Mere  Acknowledgment  of  Debt — Equivalent  of 
Prom'ise  to  Pay  Necessary. 

§  2720.  And  to  Be  Certain,  Unequivocal  and  Clear. 

§  2721.  May  Be  Conditional,  if  Definite. 

§  2722.  Probably  New  Promise  before  Discharge  Sufficient,  if  after  Adjudica- 
tion. 

§  2723.  Acceptance  of  New  Promise  Requisite. 

§  2724.  Must  Be  Accepted  in  Terms  Offered. 

§  2725.  Conditional  Promise  Accepted  as  Offered,  Sufficient. 

§  2726.  Action  on  Revived  Debt  to  Be  Brought  on  Original  Consideration. 

§  2727.  New  Promise  Not  to  Be  Pleaded  nor  Proved  in  First  Instance. 

§  2728.  Allegations,  in  Pleading  New  Promise. 


1582  REMIA'GTOX  ON  BANKRUPTCY. 

DIVISION    5. 

§  2729.   Contractual  Relations  Xot  Dissolved  by  Discharge,  unless  Mergeable  in 
"Provable"   Debt. 

§  2730.   Relation   of   Landlord  and   Tenant   Xot   Severed. 

§  2731.  All  "Provable"  Debts  Discharged,  Save  Those  Excepted:  if  Xot  "Prov- 
able," Not  Discharged. 

§  2732.  If    Capable    of    Being    "Proved,"    Debt    Discharged    Whether    Actually 
Proved  or  X'ot. 

§  2733.  Tort  Claims  Discharged,  if  Tort  Might  Be  Waived  and  Claim  Be  Pre- 
sented Ex  Contractu. 

§  2734.  Also  Unliquidated  Claims  if  Capable,  on  Liquidation,  of  Being  Presented 
Ex    Contractu. 

§  2735.  Only  Debts  Existing  at  Date  of  Filing  Petition    Discharged. 

§  2736.  Contingent  Claims   X'ot   Provable,   Xot  Discharged. 

§  2737.  Costs  Incurred  Prior  to  Petition  Dischargeable. 

§  2738.   Incurred  after,  X'ot  Discharged. 

§  2739.  Judgment  for  Breach  of  Promise  of  ^Marriage  Discharged. 

§  2740.  Judgments  for  Torts  Discharged,  Though  Liability  on  Which  Founded 
Not. 

§  2741.  Claims    of    Sureties    and    Endorsers    against    Bankrupt    Principal    Dis- 
charged. 

§  2742.   Stockholder's    Liability   Dischargeable,   if   Fixed. 

SUBDIVISION    "a." 

§  2743.  Debts  Excepted  from  Discharge. 

§  2744.  Because   Excepted,    Not   on   That   Account   Entitled   to   Priority   before 
Dividends. 

§  2745.  First  Exception — Taxes  Not  Discharged. 

§  2746.  Second   Exception — "Liabilities    for   Obtaining   Property   by    False    Pre- 
tenses or  False   Representations,"   Xot   Discharged. 

§  2747.  Xot    All    Frauds    Excepted,    but    Only    "Obtaining    Property    by    False 
Pretenses,"  etc., 

§  2748.  Judgment   Xot   Requisite. 

§  2749.  Judgment  Xot  Such  Merger  as  Prevents  Inquiry  into  Original  Liabilit}^ 

§  2750.  Xot  Even  Though  Tort  Waived  and  Judgment  on  Quasi  Contract. 

§  2751.  False  Representations  Xot  Necessarily  in  Writing. 

§  2752.   False   Representations   to   Mercantile   Agency   Sufficient. 

§  2753.   Reckless  Representations  Sufficient.  ' 

§  2754.  Third  Exception — Liabilities  for  Willful  and  Aralicious  Injuries  to  Per- 
son   or    Property. 

§  2755.   Fourth  Exception — Liabilities  for  Alimony. 

§  2756.  Simply   Declaratory  of  Law  as   Already  Existing. 

§  2757.  Fifth  Exception — Support  of  Wife  or  Child. 

§  2758.  Simply  Declaratory  of  Law  as  Already  Existing. 

§  2759.  Liabilities    to    Third    Parties    Not    Excepted— Only    Liabilities    Directly 
to  Wife  or  Child. 

§  2760.  Sixth    Exception — Seduction    or    Criminal    Conversation. 

§  2761.  Seventh  Exception — Debts  Not  "Duly  Scheduled." 

§  2762.  "Due"  Scheduling  Dependent  on  Facts  of  Particular  Case. 

§  2763.  Thus,   Initials   Instead   of   Full   Given    X'ames. 

§  2764.  Abbreviations. 

§  2765.  Ditto  :Marks. 

§  2766.   Partnership    Debts   in    Individual   Bankruptcy  of   Partner. 


EFFECT  OF  DISCHARGE.  1583 

§  2767.  Debts  Intentional!}-  Scheduled  in  Name  of  Original  Payee  When  Held 
b}-  Third   Person. 

§  2768.   But  Original  Creditor  Sufficient  Where  No  Notice  of  Assignment. 

§  2769.  Stockholders'  Liability,  Either  Corporate  Creditors,  or  Receiver,  May 
Be  Scheduled. 

§  2770.   Failure  to  Give  Street  Number  in  City  Where  Ascertainable. 

§  2771.  Giving  Name  and  Street  Correctly,  but  City  Wrong,  Not  "Due"  Sche- 
duling. 

§  2772.  "Idem    Sonans." 

§  2773.   Innocent  Intent  in  Faulty  Scheduling,  No  Excuse. 

§  2774.  Where  Actual  Address  Unknown,  a  Guess  at  Surmised  Address  Not 
Sufficient. 

§  2775.  Reasonable  Diligence  in  Ascertaining  Correct  Address  Requisite. 

§  2776.  Where  All  Addresses  Stated  to  Be  Unknown,  Court  to  Withhold  Dis- 
charge   until    Satisfied    Due    Diligence    Exercised. 

§  2777.  Actual   Knowledge  by  Creditor  Cures   Defective   Scheduling. 

§  2778.  No  Particular  Form  of  Notice  Requisite. 

§  2779.  Agent's  Knowledge  Imputable  to  Principal. 

§  2780.  Knowledge  Not  Sufficient  unless  in  Time  for  Creditor  to  Avail  Himself 
of  Benefits  of  Law. 

§  2781.  Defending,   That   Debt   Not   "Duly"    Scheduled,    Not    Collateral   Attack. 

§  2782.  After  Discharge  Too  Late  to  Amend  Schedules  to  Include  Omitted 
Creditors. 

§  2783.  Eighth  Exception — Claims  for  Fraud,  Embezzlement,  etc.,'  While 
Officer  or  in  Fiduciary  Capacity. 

§  2784.  Must  Be  Committed  While  Acting  as  "Officer"  or  in  "Fiduciary  Ca- 
pacity." 

§  2785.  "Fiduciary  Capacity"  Refers  to  Express  Trusts;  and  Excludes  Conver- 
sions by  Agents,  etc.,  Also  Fraudulent  Transfers. 

§  2786.  "Fiduciary"  Relation  Must  Exist  Independently  of  Transaction  in 
which  Debt  Arose. 

§  2787.  Whether    Includes    "Officers"    of   Private    Corporation. 

§  2788.  "Fraud"    Means    Moral   Turpitude   or   Intentional   Wrong. 

§  2789.  "Fraud"  Must  Have  Existed  in  Original  Transaction. 

§  2790.  Judgment  Not  Such  Merger  as  Prevents  Inquiry  into  Character  of 
Fraud. 

DIVISION    6. 

SUBDIVISION    "a." 

§  2791.  Partnerships  Entitled  to  Discharge. 

§  2792.   No    Indidvidual    Discharge    of    Member    unless    Individually    Adjudged 

Bankrupt. 
§  2793.  Act  of  One  Bars  Firm  Discharge  if  Done  within  Scope  of  Partnership 

Business. 

SUBDIVISION    "v,." 
§  2794.   Discharge  of  Firm  Debts  in  Individual  Bankruptcy  of  iMembfer. 
§  2795.  Individual   Liability  for   Firm  Debts,   Discharged  if   Firm  Debts   "Duly" 

Scheduled,   in   Individual   Bankruptcy,   Irrespective  of  "Firm  Assets." 

etc. 
§  2796.   Firm   Debts   Provable    Debts   of   Each    IMember,    and    So    Far   as   Affect 

Ind'vidual,  Are  Discharged  by  Individual's  Discharge. 
§  2797.  But  Partnership  Debts  to  Be  "Duly  Scheduled,"  Else  Not  Affected  by 

Individual  Discharge. 


1584  REMINGTON  ON  BANKRUPTCY.  §  2662 

§  2798.  And  Notices  to   Creditors  Must  Give  Notice  of  Firm   Debts  and  That 

Discharge  Therefrom  Sought. 
§  2799.  Petitions  for  Adjudication  and  Discharge  Each  to  Mention  Firm  Debts 

and  Pray  for  Discharge  Therefrom. 
§  2800.  And  Firm  Property  to  Be  Described. 
§  2801.  Amendment    May   Be   to    Include    Discharge   from    Firm    Debts,    Where 

Already  Duly  Scheduled. 
§  2802.  Even  after  Term  at  Which  Discharge  Granted. 

SUBDIVISION    "C." 

§  2803.  Where    Individuals    Adjudged    Bankrupt    with    Partnership,    Individual 

Debts  Discharged. 
§  2804.  Where  Not  So  Adjudged,  Individual  Debts  Not  Discharged. 

SUBDIVISION    "d." 

§  2805.  Individual   Partner  Alay  Be  Discharged,  Where  Firm  and   Other  Part- 
ners  Not. 

Division  1. 

Nature  and  Effect  of  Discharge  in  General. 

§  2662.  Right  to  Discharge  and  Effect  of  Discharge  Distinct 
Matters. — The  right  to  a  discharge  and  the  effect  of  a  discharge  are 
entirely  distinct  matters.^ 

Schiller  v.  Weinstein,  15  A.  B.  R.  183  (N.  Y.  Sup.  Ct.  App.) :  "By  this  deter- 
mination (holding  the  particular  debt  in  question  to  be  excepted  under  §  17) 
'The  validity  and  effectiveness  of  the  discharge  in  general  are  not  questioned,' 
only  'it  does  not  extend  to  this  particular  claim.'  Sutherland  v.  Lasher,  11 
A.  B.  R.  780." 

In  re  Mussey,  3  A.  B.  R.  592,  99  Fed.  71  (D.  C.  Mass.):  "She  has  now  ap- 
plied for  her  discharge  in  bankruptcy,  and  certain  creditors  who  proved  their 
claims  in  the  insolvency  proceedings  ask  that  the  discharge  granted  her  shall 
expressly  exempt  from  its  operation  all  claims  proved  in  insolvency,  or  within 
the  jurisdiction  of  the  insolvency  court,  and  also  such  claims  as  were  created  by 
her  fraud.  It  was  held  in  In  re  Rhutassel  (D.  C),  96  Fed.  597  (2  Am.  B.  R. 
697),  that  the  only  issue  tendered  by  the  petition  for  a  discharge  is  the  right 
to  the  discharge,  and  that  the  only  facts  properly  pleadable  in  opposition  thereto 
are  those  which  show  that  the  bankrupt  is  entitled  to  no  discharge  whatsoever. 
'The  issue  upon  the  effect  of  a  discharge  will  arise  when  a  creditor  seeks  to 
enforce  a  judgment  or  claim,  and  the  debtor  pleads  his  discharge  in  bar 
thereof.'  See,  also.  In  re  Thomas  (D.  C.),  92  Fed.  912  (1  Am.  B.  R.  515).  The 
discretion  of  this  court  cannot  determine  the  effect  of  a  discharge  in  bank- 
ruptcy upon  debts  proved  in  insolvency.  These  debts  are  either  barred  by  the 
discharge  as  matter  of  law,  or  else,  as  matter  of  law,  remain  unaffected  thereby. 
The  question  of  law  is  raised  upon  the  creditors'  suit  to  enforce  these  debts 
more    conveniently    than    upon    the    petition    for    discharge,    and    so    it    is    more 

1.  In  re  McCarty,  7  A.  B.  R.  40,  111  Fed.  151  (D.  C.  Ills.),  quoted  post,  § 
2663;  In  re  Rhutassel,  2  A.  B.  R.  697,  96  Fed.  597  (D.  C.  Iowa),  quoted 
post,  §  2663;  obiter.  In  re  Carmichael,  2  A.  'B.  R.  815,  96  Fed.  594  (D.  C. 
Iowa);  In  re  Marshall  Paper  Co.,  4  A.  B.  R.  468,  102  Fed.  872  (C.  C.  A.  Mass.); 
In  re  Lieber,  3  A.  B.  R.  217  (Special  Master  Pa.);  impliedly.  In  re  Tinker, 
3  A.  B.  R.  580,  99  Fed.  79  (D.  C.  N.  Y.). 


S  2663  EFFECT  OF  discharge.  V  1585 

convenient  that  the  discharge  shall  be  in  the  usual  form,  and  that  its  scope  shall 
be  left  for  future  determination." 

In  re  Thomas,  1  A.  B.  R.  515,  93  Fed.  912  (D.  C.  Iowa):  "That  the  debt 
was  created  by  fraud  of  the  bankrupt,  if  such  be  the  case,  is  not  a  ground  for 
refusal  of  discharge  under  the  statute.  Section  17  provides  that  from  debts 
so  created,  a  discharge  does  not  release  the  bankrupt.  And,  when  the  discharge 
is  pleaded  as  a  defense  to  the  enforcement  of  such  debt,  proof  that  the  debt 
was  so  created  makes  the  discharge  inoperative  against  it.  But  the  statute 
does  not  justify  withholding  the  discharge  therefore." 

Katzenstein  v.  Reid,  16  A.  B.  R.  746  (Ct.  App.  Tex.):  "These  two  sections 
should  undoubtedly  be  construed  together,  as  argned  by  appellant,  and,  follow- 
ing that  plan  of  construction,  we  arrive  at  the  conclusion  that  the  two  sections 
are  perfectly  harmonious;  §  14  providing  for  the  discharge  of  a  bankrupt, 
unless  it  should  appear  that  certain  acts  have  been  done  by  him,  and  §  17  setting 
forth  the  debts  from  which  the  bankrupt  shall  be  released  by  such  discharge. 
Each  bears  upon  a  dififerent  subject;  the  one  relating  to  the  discharge,  the 
other  to  the  debts  from  which  such  discharge  will  relieve  the  debtor.  The 
matters  and  things  which  will  prevent  a  discharge  in  bankruptcy  are  dififerent 
from  those  set  out  in  the  section  which  will  not  relieve  from  liability  in  case 
there  is  a  discharge  of  the  bankrupt.  The  bankrupt  may  be  discharged  and  still 
be  held  liable  for  the  classes  of  debts  mentioned  in  amended  §  17  of  the  act 
of  1903; 'and  in  seeking  to  hold  a  party  liable,  who  has  been  discharged  in  bank- 
ruptcy, the  ground  for  such  liability  must  be  found  in  §  17,  and  not  in  §  14, 
which  enumerates  grounds  upon  which  a  discharge  shall  be  refused." 

§  2663.  Effect  of  Discharg-e  on  Particular  Debt  to  Be  Determined 
When  Enforcement  of  Debt  Attempted. — The  effect  of  the  discharge 
on  the  rights  of  the  parties  is  in  general  to  be  determined  when  the  debt 
is  thereafter  sought  to  be  enforced  by  legal  proceedings.- 

In  re  Marshall  Paper  Co.,  4  A.  B.  R.  468,  102  Fed.  872  (C.  C.  A.  Mass.,  revers- 
ing 2  A.  B.  R.  653)  :  "The  right  to  a  discharge  and  the  effect  of  a  discharge, 
are  wholly  distinct  propositions.  The  proper  time  and  place  for  the  determina- 
tion of  the  effect  of  a  discharge  is  when  the  same  is  pleaded  or  relied  upon  by 
the  debtor  as  a  defense  to  the  enforcement  of  a  particular  claim.  The  issue 
upon  the  effect  of  a  discharge  cannot  properly  arise  or  be  considered  in  de- 
termining the  right  to  a  discharge." 

In  re  White,  10  A.  B.  R.  794  (Ref.  Ala.):  "The  proper  time  and  place  to 
test  the  question  as  to  whether  the  bankrupt  is  discharged  from  a  particular 
debt  or  judgment  is  when  the  bankrupt  may  be  sued  upon  the  debt,  or  process 
may  be  issued  upon  the  judgment  in  the  court  which  rendered  the  same,  sub- 
sequent to  the  discharge  of  the  bankrupt.     If  the  discharge  is  there  interposed 

2.  See  ante,  §§  2468,  24*69.  In  re  Mussey,  3  A.  B.  R.  592,  99  Fed.  71  (D. 
C  Mass.),  quoted  ante,  §  2662;  In  re  Frank,  6  A.  B.  R.  156  (D.  C.  Penn.J; 
In  re  Thomas,  1  A.  B.  R.  515,  92  Fed.  912  (D.  C.  Iowa),  quoted  ante,  §  266:2; 
In  re  Carmichael.  2  A.  B.  R.  815,  96  Fed.  594  (D.  C.  Iowa);  [1867]  In  re 
Elliott,  2  N.  B.  Reg.  110,  Fed.  Cases  4,391;  [1867]  In  re  Rathbone,  1  X.  B. 
Reg.  324,  Fed.  Cases  11,580;  [1867]  In  re  Rosenfield,  1  X.  B.  Reg.  575,  Fed. 
Cases  12,058;  [1867]  In  re  Wright,  2  N.  B.  Reg.  41,  Fed.  Cases  18,070;  [1867] 
In  re  Stokes,  2  X.  B.  Reg.  212,  Fed.  Cases  13,476;  [1867]  In  re  Tracy,  2  X.  B. 
Reg.  298,  Fed.  Cases  14,124;  [1841]  Chapman  v.  Forsyth,  2  How.  202.  Contra, 
In  re  Meyers,  2  A.  B.  R.  707,  96  Fed.  408  (D.  C.  N.  Y.).     See  post,  §  2794. 

2  Rem  B— 25 


1586  /  REMINGTON  ON  BANKRUPTCY.  §  2665 

as  a  defense  bj^  the  bankrupt,  it  is  for  that  court  to  determine  whether  that 
particular  debt  is  affected  by  the  discharge  so  pleaded." 

In  re  McCarfy,  7  A.  B.  R.  41,  111  Fed.  151  (D.  C.  Ills.):  "The  effect  of  such 
discharge  if  in  the  future  it  shall  be  pleaded  in  bar  of  the  collection  of  the 
claim  in  question  will  arise  in  the  proper  tribunal  where  such  collection  is 
sought  to  be  enforced.     *     *     * 

"The  right  to  a  discharge  and  the  effect  of  a  discharge  are  entire!}'  distinct 
propositions." 

In  re  Rhutassel,  2  A.  B.  R.  697,  96  Fed.  597  (D.  C.  Iowa):  "The  issue  upon 
the  effect  of  a  discharge  will  arise  when  a  creditor  seeks  to  enforce  a  judgment 
or  claim,  and  the  debtor  pleads  his  discharge  in  bar  thereof.  This  question  was 
very  fully  and  carefully  considered  by  Judge  Woolson  in  In  re  Thomas,  92  Fed. 
912;  and  I  concur  in  the  conclusion  reached  by  him,  that  the  proper  place  and 
time  for  the  determination  of  the  effect  of  the  discharge  is  when  the  same  is 
pleaded  or  relied  upon  as  a  defense  to  the  enforcement  of  the  particular  claim." 

Consequently,  it  is  generally  in  the  state  court  that  the  question  arises. 

The  dischargeability  of  the  partictilar  debt  involved  is,  however,  to  be 
determined  by  the  law  as  it  stood  when  the  discharge  was  granted,  not 
Vvhen  it  is  sought  to  enforce  the  debt. 

§  2664.  Decree  of  Discharge  to  Be  General. — The  decree  of  dis- 
charge should  be  general,  and  should  not  attempt  to  limit  its  effect  by 
excepting  particular  debts  excepted  by  statute  from  the  operation  of  dis- 
charge; but  where  the  right  itself  to  a  discharge  has  already  been  denied 
in  a  former  bankruptcy,  the  discharge  decree  may  except  the  old  debts, 
because  of  res  judicata. ^ 

§  2665.  No  Limiting  of  Effect,  nor  Excepting  of  Particular  Debts, 
in  Decree. — In  some  reported  cases,  the  bankruptcy  court,  in  granting 
a  discharge,  uses  language  indicating  that  it  considers  it  to  be  within  the 
court's  function,  when  the  discharge  is  granted,  to  limit  or  qualify  its 
effect.4 

Notably  is  this  so  in  regard  to  individual  bankrtiptcies  where  the  in- 
dividual bankrupt  is  also  a  member  of  a  partnership,  the  courts  sometimes 
attempting  to  qualify  the  order  of  discharge  by  limiting  it  to  individual 
debts. ^  However,  in  general,  the  bankruptcy  court  in  granting  a  discharge 
should  not  attempt  to  limit  the  effect  of  the  discharge,  the  sole  function 
of  the  court  being  to  grant  or  refuse  the  discharge,  the  law  itself  then 

3.  See  post,  §  2794. 

4.  In  re  Claff,  7  A.  B.  R.  128,  111  Fed.  506  (D.  C.  :\Iass.),  quoted  ante. 
§  2438;  In  re  Feigenbaum,  9  A.  B.  R.  595,  121  Fed.  69  (C.  C.  A.  X.  Y.);  In 
re  Royal,  7  A.  B.  R.  636,  113  Fed.  140  (D.  C.  N.  Car.);  In  re  Carmichael,  2  A. 
B.  R.  815,  96  Fed.  594  (D.  C.  Iowa);  In  re  Blumberg,  1  A.  B.  R.  627,  94 
Fed.  476   (Ref.  Tenn.,  reversed  in  1  A.   B.  R.  633.). 

5.  In  re  Carmichael,  2  A.  B.  R.  815,  96  Fed.  594  (D.  C.  Iowa).  See  post, 
§    2794. 


§  2668  EFFECT  OF  DISCHARGE.  1587 

fixing  the  extent  and  effect  of  the  discharge.'"'  Thus,  in  cases  of  individual 
bankruptcies,  the  discharge  should  be,  in  the  words  of  the  former  order, 
^■from  all  provable  debts  excepting  those  excepted"  by  the  statute.  If, 
then,  the  statute  does  not  except  partnership  debts,  the  court  should  not 
attempt  to  do  so. 

§  2666.  Except  Where  Former  Discharge  Refused. — Nevertheless, 
where  it  is  not  the  effect  of  a  discharge  on  a  particular  debt  that  is  in- 
volved, but  rather  the  right  itself  to  a  discharge,  and  where  such  right 
exists  as  to  some  creditors  and  not  as  to  others,  as  in  cases  of  former 
denial  of  discharge,  the  court  undoubtedly  may  give  effect  to  the  res 
adjudicata  by  excepting  debts  provable  under  the  former  bankruptcy. 
Otherwise,  such  debts,  being  likewise  provable  under  the  present  bank- 
ruptcy, would  be  discharged  by  the  present  discharge,  and  the  former 
adjudication  be  defeated.' 

§  2667.  Urging  Debt  to  Be  Not  "Provable"  or  to  Be  within  Ex- 
ceptions of  §  17,  Not  "Collateral  Attack." — Avoiding  the  effect  of 
the  discharge  by  urging  that  the  claim  is  not  a  "provable"  debt,  or  that  it 
comes  within  some  of  the  exceptions  of  §  17,  is  not  a  collateral  attack 
on  the  discharge  decree.^ 

Sutherland  v.  Lasher,  11  A.  B.  R.  780,  41  N.  Y.  Misc.  251,  affirmed  87  App. 
Div.  663:  "On  behalf  of  the  motion  it  is  further  urged  that  the  discharge  in 
bankruptcy  cannot  be  collaterally  attacked  in  this  proceeding.  No  such  attempt 
is  made  by  the  plaintiff.  The  validity  and  effectiveness  of  the  discharge  in 
general  are  not  questioned,  the  only  point  raised  being  that  it  does  not  extend 
to  this  particular  claim  for  the  reasons  above  mentioned." 

Nor  is  it  a  direct  attack  upon  the  decree,  nor  an  attack  upon  it  of  any 
kind ;  but  is  rather  a  carrying  out  of  its  very  terms,  for  by  the  law  itself 
and  the  terms  of  the  decree,  the  discharge  is  to  operate  only  upon  claims 
that  are  provable  and  not  excepted  by  §  17. 

§  2668.  Discharge  Bars  Debts,  Not  Enforcement  of  Liens  or  Title 
to  Property. — In  actions  to  try  the  title  to  property,  or  to  determine  the 
validity  of  liens  on  property,  or  interests  therein,  where  no  recovery  of  a 
debt  is  sought,  the  defendant  may  not  interpose  his  discharge  in  bankruptcy 

6.  In  re  Tinker,  3  A.  B.  R.  580,  99  Fed.  79  (D.  C.  N.  Y.) ;  In  re  Blum- 
berg,  1  A.  B.  R.  633,  94  Fed.  476  (D.  C.  Tenn.,  reversing  1  A.  B.  R.  627);  In 
re  Mussey,  .3  A.  B.  R.  592,  99  Fed.  71  (D.  C.  :\Iass.). 

Withholding  Discharge  until  Compliance  with  Rules. — Yet,  of  course,  it  i? 
always  within  the  discretion  of  the  court  to  refuse  to  grant  a  discharge  until 
the  bankrupt's  schedules  are  promptly  prepared  and  to  this  extent  the  court 
can,  at  any  rate,  compel  the  insertion  of  the  names  of  the  firm  creditors  and 
full  descriptions  and  withhold  action  on  the  petition  for  discharge  until  the 
requirement  is  complied  with.     See  ante,  §  2480. 

7.  See    ante,    §    2437. 

8.  Schiller  v.  Weinstein,  15  A.  B.  R.  184  (N.  Y.  Court  of  Appeals),  quoted 
post,  §  2781. 


1588  ri;mixgton  on  bankruptcy.  §  2668 

— discharge  bars  debts,  not  ownership  of  property,  whether  such  owner- 
ship be  absolute,  conditional  or  by  way  of  lien,  whether  it  be  ownership 
of  the  whole  or  merely  partial  ownership.^ 

The  discharge  bars  all  future  legal  proceedings  for  the  enforcement  of 
the  debt  or  obligation  discharged,  except  such  as  are  by  way  of  enforce- 
ment of  a  lien  therefor  not  itself  invalid;  but  does  not  affect  suits  to 
determine  the  ownership  of  property  or  to  enforce  liens  thereon. 

Berry  v.  Jackson,  8  A.  B.  R.  485,  41  S.  E.  698  (Sup.  Ct.  Ga.):  "The  sole 
issue  in  the  trial  of  an  action  of  trover  is  that  of  title  to  the  property  in  dis- 
pute, and  the  ■''act  that  the  plaintiff  may  elect  to  take  a  money  verdict  in  lieu 
of  the  specific  personalty  claimed  can  in  no  event  alter  that  issue.  Campbell 
V.  Trunnell,  67  Ga.  518.  Counsel  for  the  plaintiff  in  error  proceeds  in  his  brief 
upon  the  assumption  that  the  action  was  based  upon  a  debt  owed  by  Berry 
to  Jackson,  and  argues  that  as  such  it  was  a  claim  from  which  he  was  relieved 
by  his  discharge  in  bankruptcy.  But  no  such  facts  appear  in  the  record.  All 
that  we  have  before  us  is  an  action  of  trover  for  the  recovery  of  specific  per- 
sonal property,  and,  regardless  of  the  election  of  the  plaintiff  to  take  a  money 
verdict,  the  title  to  the  property  in  dispute,  which  was  the  only  issue  for  de- 
termination, could  not  be  affected  by  any  bankruptcy  proceedings  in  which  the 
defendant  may  have  participated." 

Bank  of  Commerce  v.  Elliott,  6  A.  B.  R.  415  (Sup.  Ct.  Wis.) :  "Whether  the 
court  erred  in  refusing  to  give  appellant  judgment  in  form  against  Elliott 
obviously  depends  upon  whether,  after  the  discharge  in  bankruptcy,  and  the 
entry  of  the  plea  by  Elliott  in  bar  of  further  prosecution  of  the  main  suit  as 
to  him,  appellant  had  a  cause  of  action  in  ariy  sense  upon  which  a  judgment 
could  be  rendered.  It  is  conceded  that  if  a  defendant  is  discharged  in  bank- 
ruptcy from  a  debt,  pending  proceedings  to  enforce  it,  he  is  entitled  to  plead 
such  circumstances  in  bar  of  further  proceedings  for  a  personal  judgment,  if 
the  plaintiff  does  not  voluntarily  discontinue  the  action,  and  to  recover  on  such 
plea.  But  it  is  said  that  if  an  action  is  wholly  in  rem,  or  partly  in  rem  and  partly 
in  personam,  its  status  as  an  action  to  reach  the  res  is  not  disturbed  by  a 
discharge  of  the  defendant  in  bankruptcy,  if  the  plaintiff's  interest  therein  be 
preserved  by  the  Bankruptcy  Act.  The  authorities  seem  to  be  uniform  to  that 
effect." 

Evans  V.  Rounsaville,  8  A.  B.  R.  236  (Sup.  Ct.  Ga.) :  "While  a  discharge  in 
bankruptcy  releases  the  bankrupt  from  a  debt  which  is  provable  under  the 
Bankrupt  Act  of  1898,  and  which  is  not  within  the  excepted  classes,  and  takes 
away  from  the  creditor  the  right  to  proceed  against  his  debtor  in  personam  to 
recover  that  debt,  yet  a  valid  lien  created  on  the  property  of  the  bankrupt 
more  than  four  months  before  the  filing  of  his  petition  in  bankruptcy  is  not 
affected  by  his  discharge.  After  discharge,  a  creditor  holding  such  a  lien,  who 
has  not  proved  his  debt  in  bankruptcy,  may  proceed  to  enforce  it  against  the 
property  of  the  bankrupt  in  the  State  court." 

Paxton  V.  Scott,  10  A.  B.  R.  81,  92  N.  W.  611  (Neb.):  "If  the  creditor  have 
an  attachment  or  other  lien,  he  may  have  a  special  judgment  entered  in  rem." 

9.  Powers  Dry  Goods  Co.  v.  Nelson,  7  A.  B.  R.  506,  10  N.  Dak.  580,  quoted 
post,  §  2673.  Smith  z'.  Zachry,  8  A.  B.  R.  240  (Sup.  Ct.  Ga.);  Bassett  v. 
Thackara,  16  A.  B.  R.  786,  72  N.  J.  L.  81,  60  Atl.  39,  quoted  post,  §  2673.  Com- 
pare, dissenting  opinion,  In  re  Adler,  16  A.  B.  R.  414  (C.  C.  A.  N.  Y.).  Com- 
pare post,  "Stay  Only  Protects  Bankrupt  from  Judgment  in  Personam — Judg- 
ments  in   Rem   as   to   Property   Unaffected,"   §   2709. 


§  2673  EFFECT  OF  DISCHARGE.  1589 

In  re  Blumberg,  1  A.  B.  R.  633,  94  Fed.  476  (D.  C.  Tenn.):  "So  far  as  ^cred- 
itors of  Blumberg  may  have  acquired  a  lien  upon  property  by  attachment 
levied  more  than  four  months  before  the  petition  was  filed,  it  is  not  affected 
by  the  discharge;  and  the  right  to  proceed  to  subject  any  property  validly  at- 
tached by  levy  cannot  be  questioned,  and  if  the  creditors  can  satisfy  their  debt 
in  that  method,  their  right  to  do  so  is  clear,  and  is  not  in  the  least  affected  by 
this  proceeding.  It  is  only  the  debt,  with  the  right  to  proceed  against  Blum^ 
berg  in  personam,  that  is  discharged. 

§  2669.  Bankrupt  Remains  Liable  on  Debts  Not  Dischargeable, 
Collectible  Out  of  Subsequently-Acquired  Assets. — The  bankrupt  re- 
mains liable  on  debts  that  are  not  dischargeable,  and  they  may  be  col- 
lected out  of  his  subsequently-acquired  estate. 

Katzenstein  v.  Reid,  16  A.  B.  R.  749  (Ct.  App.  Tex.):  "The  statute  as  to 
debts  not  released  by  the  discharge  in  bankruptcy  does  not  confine  itself  to 
the  debts  of  those  only  who  have  not  accepted  the  benefits  of  the  dividends 
paid  by  the  bankrupt  court,  but  it  is  sweeping  in  its  provisions,  and  makes  no 
exception    of   any    who    may    hold    the    character    of    debts    mentioned.     =(=     *     * 

"The  statute  does  not  condition  the  right  of  a  creditor  to  sue  and  establish  his 
claim  agaiftst  a  discharged  bankrupt  on  the  fact  that  he  did  not  prove  up  his 
claim  before  the  referee,  and  receive  dividends,  but  it  declares  that  certain  debts 
are  not  released  by  the  discharge,  and  the  doing  of  those  things  will  not  estop 
him  from  prosecuting  his  suit." 

§  2670.  Nondischargeable  Debts,  if  "Provable,"  Share  in  Divi- 
dends.— Such  of  the  nondischargeable  debts  as  are  "provable"  may  be 
allowed  to  share  in  dividends.  Because  they  are  not  dischargeable  does 
not  imply  they  are  not  "provable,"  although  the  converse  is  not  true,  for 
debts  that  are  not  provable  are  not  dischargeable.^" 

§2671.  Secondary  Liability,  Unaffected. — Discharge  does  not  affect 
secondary  liability. ^^ 

§  2672.    Debt  Not  Extinguished,  but  Its  Enforcement  Barred. — 

Discharge  is  not  a  payment  nor  extinguishment  of  debts :  it  is  simply  a 
bar  to  their  enforcement  by  legal  proceedings. 

Evans  V.  Staslle,  11  A.  B.  R.  184  (Sup.  Ct.  Minn.):  "The  discharge  in  bank- 
ruptcy did  not  pay  or  extinguish  the  plaintiff's  debt,  nor  relieve  the  defendant's 
land  from  the  trust  with  which  it  was  charged  by  operation  of  law  for  the  pay- 
ment of  the  debt." 

§  2673.  Valid  Liens  Not  Cast  Off  nor  Their  Enforcement  Pre- 
vented.— The  discharge  does  not  operate  to  cast  off  good  and  valid  liens 
given  or  acquired  for  the  debt,  either  a  lien  by  contract  or  by  legal  pro- 

10..   Obiter,   Katzenstein  v.    Reid,   16   A.   B.    R.   749    (Ct.   App.    Tex.). 
11.    See    ante,    "Rights    of    Creditors    against    Third    Parties    Liable    Jointly 
with   the    Bankrupt   or    Secondarily   for    Him,"    §    1510,    et    seq. 


1590  REMINGTON    ON    BANKRUPTCY.  §  2673 

ceedings,  nor  to  prevent  their  enforcement.     It  is  purely  personal  to  the 
bankrupt.  12 

Evans  V.  Staalle,  11  A.  B.  R.  184,  88  Minn.  253:  "The  only  effect  of  the  dis- 
charge was  to  relieve  the  debtor  from  all  legal  obligations  to  pay  the  debt, 
leaving  all  liens  or  trust  securing  the  debt  unimpaired.  Lowell,  Bankr.,  §§ 
242-244;  Smith  v.  Stanchfield,  84  Minn.  343,  7  Am.  B.  R.  498.  Now,  when  the 
land  in  this  case  was  conveyed  to  the  defendant  upon  a  consideration  paid 
by  the  debtor,  a  trust  in  favor  of  the  plaintiff  as  a  creditor  attached  to  the 
land  to  the  extent  necessary  to  satisfy  his  debt,  which  could  be  defeated  only 
by  disproving  any  fraudulent  intent.  This  trust  could  be  enforced  after  the 
debtor's  discharge,  although  all  personal  remedies  against  him  to  secure  pay- 
ment of  the  debt  had  been  thereby  extinguished,  precisely  the  same  as  a  mort- 
gagee may  foreclose  his  lien  on  the  mortgaged  premises,  and  thereby  secure 
payment  of  his  debt,  although  an  action  to  recover  it  from  the  mortgagor  be 
barred  by  the  statute  of  limitations.     Slingerland  v.  Sherer,  46  Minn.  422." 

Powers  Dry  Good^  Co.  v.  Nelson,  7  A.  B.  R.  510,  10  N.  Dak.  580:  "It  is  con- 
ceded that  if  a  defendant  is  discharged  in  bankruptcy  from  a  debt,  pending 
proceedings  to  enforce  it,  he  is  entitled  to  plead  such  circumstances  in  bar  of 
further  proceedings  for  a  personal  judgment,  if  the  plaintiff  does  not  voluntarily 
discontinue  the  action,  and  to  recover  on  such  plea.  But  it  is  said  that  if  an 
action  is  wholly  in  rem,  or  partly  in  rem  and  partly  in  personam,  its  status  as  an 
action  to  reach  the  res  is  not  disturbed  by  a  discharge  of  the  defendant  in 
bankruptcy,  if  the  plaintiff's  interest  therein  be  preserved  by  the  Bankrupt  Act. 
The  authoritie.s  seem  to  be  uniform  to  that  effect." 

Paxton  V.  Scott,  10  A.  B.  R.  80,  92  N.  W.  611  (Neb.):  "The  effect  of  the 
discharge  is  personal  to  the  bankrupt,  and  it  does  not  affect  any  lawful  lien, 
charge,  or  incumberance  existing  on  his  property,  but  judgment  may  be  specially 
entered  thereon  in  rem.  *  *  *  The  discharge  of  the  bankrupt  does  not  affect 
securities,  and  they  are  subject  to  a  judgment  or  decree  in  rem,  but  the  creditor 
applying  for  such  remedy  may  be  required  to  await  the  result  of  the  bankrupt's 
discharge  if  the  bankrupt  or  assignee  insists  upon  it.  *  *  *  The  Bankruptcy 
Law  was  carefully  designed  to  save  all  liens  against  property  from  being  af- 
fected by  the  discharge,  and  its  terms  seem  ample  for  that  purpose." 

Bassett  v.  Thackara,  16  A.  B.  R.  786,  72  N.  J.  L.  81,  60  Atl.  39:  "Undoubtedly 
this  discharge  released  McGeorge  from  further  personal  liability  to  pay  the 
judgment,  but  it  did  not  affect  the  security  afforded  by  the  levy." 

Philmon  v.  Marshall,  11  A.  B.  R.  180,  116  Ga.  811:  "This  court  has  twice 
held  that  a  discharge  in  bankruptcy  under  the  Bankrupt  Act  of  1898  does  not 
affect  the  lien  of  a  creditor  who  does  not  prove  his  debt  in  the  bankruptcy 
court  where  the  lien  was  created  more  than  four  months  before  the  petition 
in  bankruptcy  was  filed.  Evans  v.  Rounsaville,  8  A.  B.  R.  236,  115  Ga.  684; 
*  *  *  Smith  V.  Zachry,  8  A.  B.  R.  240,  115  Ga.  722."  It  will  be  observed  that 
the  court  in  this  case  introduces  another  element,  which  has  no  bearing,  however, 
on  the  matter.  It  qualifies  its  rule  by  saying  "Where  the  creditor  has  not  proved 
his  claim  in  bankruptcy."  The  proving  of  the  claim  would  have  nothing  to 
do  with  the  validity  or  invalidity  of  the  lien. 

Bank  of  Commerce  f.  Elliott,  6  A.  B.  R.  415  (Wis.  Sup.  Ct.) :  "It  is  conceded 
that  if  a  defendant  is  discharged  in  bankruptcy  from  a  debt,  pending  proceed- 
ings to  enforce  it,  he  is  entitled  to  plead  such  circumstances  in  bar  of  further 

12.  Mallin  v.  Wenham,  13  A.  B.  R.  210,  209  Ills.  252.  But  see  Wenham  v. 
Mallin,  103  Ills.  App.  609;  Evans  v.  Rounsaville,  8  A.  B.  R.  236,  115  Ga.  684; 
Smith  V.  Zachry,  8  A.  B.  R.  240,  115  Ga.  722;  Howard  v.  Cunliff,  10  A.  B.  R.  71, 
€9  S.  W.  737. 


§   2678  EFFECT  OF  DISCHARGE.  1591 

proceedings  for  a  personal  judgment,  if  the  plaintiff  does  not  voluntarily  dis- 
continue the  action,  and  to  recover  on  such  plea.  But  it  is  said  that  if  an  ac- 
tion is  wholly  in  rem,  or  partly  in  rem  and  partly  in  personam,  its  status  as  an 
action  to  reach  the  res  is  not  disturbed  by  a  discharge  of  the  defendant  in 
bankruptcy,  if  the  plaintiff's  interest  therein  be  preserved  bj^  the  Banruptcy 
Act." 

§  2674.  Transactions,  Themselves,  Not  Invalidated  because  of 
Being  Bars  to  Discharge. — The  statute  as  to  discharges  does  not  set 
aside  or  otherwise  affect  any  transaction,  nor  affect  the  recovery  of  prop- 
erty by  the  trustee;  nor  does  the  granting  of  a  discharge  do  so.^^ 

§  2675.  Contractual  Relations  Not  Dissolved,  unless  Mergeable 
in  "Provable"  Debt  at  Time  of  Bankruptcy. — Contractual  relations 
are  not  in  and  of  themselves  dissolved  by  the  discharge.  Discharge  bars, 
cnly  "provable"  "debts,  demands  or  claims ;"  therefore,  a  mere  contractual 
relation,  not  merged  into  a  debt,  demand  or  claim  that  could  be  "proved" 
at  the  time  of  bankruptcy,  is  not  affected.  Hence,  contracts  for  liens, 
if  in  no  form  they  could  be  "proved,"  as  "debts,  demands  or  claims"  in 
the  bankruptcy  proceedings,  would  not  be  discharged,  bankruptcy  discharg- 
ing only  such  obligations  as  could  be  framed  into  provable  debts. ^^ 

§  2676.  Contracts  for  Liens  on  After- Acquired  Property  Dis- 
charged, if  Mergeable  in  Provable  Debt  at  Time  of  Bankruptcy. — 

A  contract  for  a  lien  on  future-acquired  property,  where  such  property  is 
not  acquired  until  after  adjudication,  is  discharged,  if  discharge  be 
eventually  granted,  if  such  contract  could  have  been  sued  on,  at  the  time 
of  bankruptcy,  as  having  become  merged  in  a  right  of  action  for  breach 
of  contract ;  for  such  .right  of  action  is  a  provable  debt  and  hence  is  dis- 
charged. And  the  bankrupt,  of  course,  would  be  entitled  to  have  the 
action  stayed  until  his  discharge  could  be  passed  upon. 

§  2677.  But  Where  Lien  Exists  in  Presenti  before  Bankruptcy, 
Though  Property  Acquired  Afterward,  Discharge  No  Bar. — \\  here, 
however,  the  law  holds  that  a  lien  exists  in  presenti,  before  bankruptcy, 
notwithstanding  the  fruits  of  the  property  on  which  the  lien  exists  be  not 
acquired  until  after  adjudication,  the  discharge  will  not  prevent  the  en- 
forcement of  the  lien, 

§  2678.  Thus,-  Assignments  of  Unearned  Wages. — Thus,  where  it 
is  held,  by  the  state  law,  that  an  assignment  of  vmearned  wages  to  secure 
a  debt  creates  no  lien  until  the  wages  have  been  earned,  no  lien  arises  if 

13.  Howard  v.  Cunliff,  10  A.  B.  R.  71,  69  S.  W.  737;  In  re  Scott,  11  A.  B. 
R.  327,  1B6   Fed.  981   (D.   C.  Del.). 

14,  Compare  discussion  as  to  whether  or  not  contractual  relations  are 
dissolved   by   the    adjudication   of   bankruptcy,    ante,    §§    641,    1118. 


1592  REMINGTON    ON    BANKRUPTCY,  §  2678 

tlie   debtor   be   ultimately   discharged,   as   to   wages   earned   after   the   ad- 
judication.^^ 

Leitch  V.  Northern  Pac.  Ry.  Co.,  14  A.  B.  R.  411  (Minn.):  "A  solution  of 
this  question  depends  upon  the  efifect  of  the  debtor's  discharge  in  bankruptcy 
upon  the  alleged  assignment  of  his  wages.  Did  it  release  him  from  the  liability 
of  having  his  wages,  earned  after  his  discharge,  collected  by  the  plaintifif  by 
virtue  of  the  assignment  and  applied  to  the  payment  of  his  debt?  If  the  plain- 
tiff had  a  valid  lien  at  the  time  of  the  debtor's  discharge  upon  his  wages  there- 
after to  be  earned  as  security  for  the  payment  of  his  debt,  then  the  discharge 
would  not  affect  such  vested  security.  This  conclusion  follows  from  the  ad- 
mitted proposition  that  a  discharge  in  bankruptcy  only  relieves  the  debtor  from 
all  legal  obligation  to  pay  the  debt,  and  from  all  liability  of  having  his  future- 
acquired  property  and  earnings  seized  to  pay  the  debt;  but  all  valid  and  existing 
liens  on  specific  property  or  trusts  therein  securing  the  debt  are  not  impaired 
by  the  discharge.  Evans  v.  Staalle,  88  Minn.  253,  93  N.  W.  951.  The  cas-e  cited 
was  one  where  the  creditor  at  the  time  the  bankruptcj^  proceedings  were  initi- 
ated had  the  vested  right  to  enforce  a  trust  in  certain  land  the  legal  title  to 
which  was  held  by  a  third  party  for  the  payment  of  his  debt  against  the 
bankrupt.  Tt  was  held  that  the  right  to  enforce  the  trust  was  not  affected  by 
the  debtor's  discharge.  The  decision,  however,  is  not  relevant  to  the  question 
whether  the  plaintiff  herein  had  a  valid  lien  at  the  time  of  his  debtor's  discharge 
upon  his  wages  thereafter  to  be  earned.  In  the  case  of  Wenham  v.  Mallin,  103 
111.  App.  609,  relied  upon  by  the  plaintiff,  it  does  not  appear  whether  the  wages 
which  it  was  -ought  to  subject  to  the  payment  of  a  debt  from  which  the  debtor 
had  been  discharged  in  bankruptcy  were  earned  after  such  discharge.  The 
decision  in  that  case  is  based  upon  the  admitted  proposition  that  valid  liens  on 
property  are  not  affected  by  a  discharge  in  bankruptcy,  and  the  statement  that 
the  creditor  had  a  vested  property  right  in  the  wages  of  his  debtor  to  secure  the 
payment  of  his  debt  which  was  not  affected  by  a  discharge  in  bankruptcy.  The 
case  is  not  strictly  in  point.  The  plaintiff  also  relies  upon  the  decisions  of  this 
court  sustaining  the  validity  of  chattel  mortgages  on  crops  to  be  grown  or  on 
property  to  be  acquired.  Minn.  Linseed  Co.  v.  Maginis,  33  Minn.  193,  20  N.  W. 
85;  Miller  v.  McCormick  Co.,  35  Minn.  399,  29  N.  W.  52;  Ludlum  v.  Rothschild, 
41  Minn.  218,  43  N.  W.  137;  Hogan  v.  Elevator  Co.,  66  Minn.  344,  69  N.  W.  1. 
Apparently  the  cases  are  in  point,  but  not  in  fact.  There  is  a  fundamental 
distinction  between  a  mortgage  on  specific  crops  to  be  sown  or  definitely  de- 
scribed chattels  to  be  acquired  and  a  mortgage  on  the  future  earnings  of  a 
debtor — a  mere  expectancy,  depending  upon  a  variety  of  vague  contingencies. 
Again,  there  are  reasons  of  public  policy  which  differentiates  a  mortgage  on 
chattels  to  be  acquired  and  one  on  wages  to  be  earned.  When  a  necessitous 
wage  earner  is  compelled  to  mortgage  his  future  earnings,  he  mortgages  not 
his  chattels,  but  the  means  whereby  he  may  five  and  maintain  his  family.  The 
State  necessarily  has  an  interest  in  such  contracts,  a'iid  it  is  contrary  to  a 
wise  public  policy  to  give  effect  to  them,  except  to  a  limited  extent.  The 
rule  on  principle  and  deducible  from  the  decisions  of  this  court  is  that  an  as- 
signment of  wages  to  be  earned  in  the  future  under  an  existing  contract  of 
employment  to  secure  a  present  debt  or  future  advances  is  valid  as  an  agree- 
ment, and  takes  effect  as  an  assignment  as  the  wages  are  earned,  but  an  as- 
signment   of   wages    to    be    earned,    Avithout    limit    as    to    amount    or    time,    are 

15.  In  re  Home  Discount  Co.;  17  A.  B.  R.  180  (D.  C.  Ala.),  quoted  ante, 
§  451.  In  re  Karns,  16  A.  B.  R.  841  (D.  C.  Ohio).  And  compare,  Wenham  v. 
Mallin,  103  Ills.  App.  609,  and  Mallin  v.  Wenham,  13  A.  B.  R.  210,  209  Ills.  252. 


§    2679  EFFECT  OF  DISCHARGE.  1593 

void.  O'Connor  v.  Meehah,  47  Minn.  247,  49  N.  W.  982;  Steinbach  v.  Brant,  79 
Minn.  383,  82  N.  W.  651,  79  Am.  St.  Rep.  494;  Baylor  v.  Butterfass,  82  Minn. 
21,  84  N.  W.  640.  Tested  by  this  rule,  it  logically  follows  that  the  plaintiff, 
when  the  debtor  filed  his  petition  in  bankruptcy,  and  when  he  received  his  dis- 
charge, had  no  lien  on  or  vested  security  in  the  wages  of  the  debtor  thereafter 
to  be  earned  by  virtue  of  his  contract,  which  was  to  take  efifect  as  an  assign- 
ment when  the  w^ages  were  earned.  The  plaintifif  then  had  at  most  a  mere 
expectancy,  depending  on  contingencies.  We  accordingly  hold  that  the  dis- 
charge in'  bankruptcy  released  the  debtor  from  any  liability  of  having  his  wages 
thereafter  earned  applied  in  payment  of  the  debt  from  which  he  had  been 
discharged." 

In  re  West,  11  A.  B.  R.  782,  128  Fed.  205  (D.  C.  Ore.):  "The  theory  ^f  a 
lien  upon  the  earnings  of  future  labor  is  not  that  it  attaches  to  such  earnings 
from  the  moment  of  contract  of  pledge  or  assignment,  but  from  the  moment  of 
their  existence  It  is  needless  to  say  that  there  can  be  no  lien  upon  what  does 
not  exist.  A  pledge  or  assignment  of  future  wages  under  an  existing  employ- 
ment is  said  to  create  an  equitable  interest  in  such  wages.  Stott  v.  Frany,  20 
Or.  410,  23  Am.  St.  Rep.  132.  This  is  true  of  wages  earned  upon  a  general 
employment,  as  well  as  those  earned  upon  a  definite  contract.  In  this  case' 
the  railroad  company  was  under  no  obligation  to  employ  the  bankrupt,  nor  he 
to  work  for  the  company.  If  future  earnings  in  such  a  case  can  be  said  to  have 
a  potential  existence,  they  are  the  subject  of  an  agreement  for  a  lien;  but  the 
lien,  or  the  so-called  equitable  interest,  does  not  attach  until  the  wages  come 
into  existence,  and  until  the  lien  does  attach  there  is  no  lien.  The  discharge 
in  bankruptcy  operated  to  discharge  these  obligations  as  of  the  date  of  the 
adjudication,  so  that  the  obligations  were  discharged  before  the  wages  intended 
as  security  were  in  existence.  The  law  does  not  continue  an  obligation  in 
order  that  there  may  be  a  lien,  but  only  does  so  because  there  is  one.  The 
effect  of  the  discharge  upon  the  prospective  liens  was  the  same  as  though  the 
debts  had  been  paid  before  the  assigned  wages  were  earned.  The  wages  after 
the  adjudication  became  the  property  of  the  bankrupt  clear  of  the  claims  of 
all  creditors.  *  *  *  These  debts  cannot  escape  the  operation  of  the  Bank- 
ruptcy Law  by  an  agreement  for  a  lien  upon  what  the  debtor  expected  to  earn, 
tut  did  not  earn  until  after  the  adjudication  of  bankruptcy." 

But  where  it  is  held,  by  the  state  law,  that  the  lien  is  a  lien  upon  the 
contract  of  employment,  the  wages  simply  being  incident  thereto  and 
arising  therefrom,  then  the  lien,  being  in  existence  before  the  bankruptcy, 
is  not  affected  by  the  discharge  ;i^  although  it  may  be  affected  by  the  ad- 
judication of  bankruptcy  as  a  preference,  if  not  given  for  a  presently  pass- 
ing consideration. 

§  2679.  "Waiver  of  Exemption"  Notes:  No  Levy  on  Exempt 
Property  after  Discharge. — Notes  in  which  the  bankrupt  maker  has 
waived  exemptions  are  discharged,  although,  if  levy  had  been  made 
thereon,  the  levy  might  not  have  been  disturbed,  even  though  acquired 
within  the   four  months  preceding  the  bankruptcy;  and,  after  discharge, 

16.  Mallin  v.  Wenham,  13  A.  B.  R.  210,  209  Ills.  252.  But  compare,  Wenham 
V.  Mallin,  103  Ills.  App.  609. 


1594  REMINGTON  OX  BANKRUPTCY.  §  2682 

ijo  levy  can  be  made  thereunder  on  the  exempt  property  set  apart  to  the 
bankrupt  by  the  trustee.^" 

§  2680.  Former  Refusal  of  Discharge  Res  Judicata  as  to  All 
Claims  Then  Provable. — It  has  been  held  that  the  refusal  of  a  discharge 
is  res  judicata  as  to  all  provable  claims  under  the  bankruptcy;  and  that 
subsequent  new  proceedings  in  bankruptcy  do  not  affect  them.^^ 

But  while  it  is  true  that  the  former  refusal  is  res  judicata,  yet  it  is  res 
judicata  as  to  the  right  to  discharge  rather  than  as  to  the  dischargeability 
<5f  the  particular  debt,  and  so  a  defense  to  the  petition  for  discharge  rather 
than  an  exception  to  be  pleaded  after  the  discharge  has  been  granted.  The 
question  is :  "Has  the  bankrupt  a  right  to  renew  his  application  for  a 
discharge  from  the  old  debts  whose  discharge  has  once  been  denied?" 
rather  than,  "Does  the  new  discharge  make  exception  of  these  still  'prov- 
able' debts?"  It  would  seem  perilous,  indeed,  for  the  creditors  under  the 
old  bankruptcy  to  permit  a  later  general  decree  of  discharge  to  be  entered 
in  the  new  proceedings,  and  to  rely  then  upon  a  res  judicata  which  was 
never  presented  as  a  bar  to  the  petition  itself.^^ 

§  2681.  But  Not  if  Former  Refusal  Was  under  State  Insolvency 
Proceedings. — The  refusal  of  discharge  in  prior  proceedings  under  state 
insolvency  laws  will  not  affect  the  efficacy  of  the  discharge  in  bankruptcy 
under  the  present  act ;  and  such  debt  is  discharged  unless  it  is  ov<^  of 
those  excepted  from  discharge  under  §  17  of  the  act;-"^  at  any  rate,  where 
the  record  does  not  show  the  ground  of  the  refusal. -^  And  the  case  is 
not  different  if  the  debt  was  proved  in  the  former  proceedings  and  not 
proved  in  the  latter.--  But  probably  if  the  identical  ground  were  urged  in 
both  proceedings,  the  refusal  in  the  first  proceedings  would  be  a  bar  in  the 
latter. 

Division  2. 
Pleading  and  Proof  of  Discharge. 

§  2682.  Discharge  to  Be  Set  Up  as  Defense,  Else  Waived. — The 

discharge  must  be  set  up  and  proved  as  a  defense.--'^ 

17.  Claster  v.  Soble,  10  A.  B.  R.  446,  22  Pa.  Super.  Ct.  631.  Also  compare, 
"Exemptions,"   ante,   §§   1034,   1104. 

18.  In  re  Feigenbaum,  9  A.  B.  R.  595,  121  Fed.  69  (C.  C.  A.  X.  Y.,  revers- 
ing 7  A.  B.  R.  339);  inferentially.  In  re  Royal,  7  A.  B.  R.  636,  113  Fed.  140 
(D.  C.  N.  Car.).    But  see  In  re  Claflf,  7  A.  B.  R.  128,  111  Fed.  506  (D.  C.  Mass.). 

19.  See   ante,   §§   2437,   2438,   et   seq. 

20.  Dean  v.  Justices  of  the  Municipal  Court,  2  A.  B.  R.  163  (Sup.  Cl. 
Mass.). 

21.  In  re  Bybee.  10  A.  B.  R.  761,  124  Fed.  1011   (D.  C.   Calif.). 

22.  Dean  z:  Justices  of  the  Municipal  Court,  2  A.  B.  R.  163  (Sup.  Ct.  Mass.). 

23.  Stevens  7'.  Aleyer,  8  A.  B.  R.  496  (N.  Y.  Sup.  Ct.  App.) ;  inferentially, 
Bk.  of  Commerce  v.  Elliott,  6  A.  B.  R.  409  (N.  Y.  Sup.  Ct.  App.);  obiter,  In  re 
Tune,  8  A.   B.   R.  285,  115  Fed.  906   (D.   C.  Ala.). 


§    2686  EFFECT  OF  DISCHARGE.  1595 

Collins  V.  McWalters,  6  A.  B.  R.  593  (N.  Y.  Sup.  Ct.  App.) :  "A  discharge 
in  bankruptcy  is  not  per  se  an  extinguishment  of  the  debt  and  no  court,  other 
than  the  court  of  bankruptcy,  is  bound  to  take  notice  of  a  discharge.  It  is 
however,  a  release  which  may  be  pleaded." 

And  if  the  discharge  is  not  set  up  and  proved,  it  is  waived ;  and  the  re- 
sulting judgment  will  be  good.^^ 

§  2683.  Facts  Showing  Jurisdiction  to  Grant  Discharge  to  Be 
Pleaded. — The  facts  conferring  jurisdiction  on  the  court  to  grant  the 
discharge  must  be  pleaded.-^ 

But  pleading  the  discharge  'to  have  been  "duly  made"  is  sufficient  in 
states  where  that  form  is  sufficient  in  pleading  judgments. ^^ 

§  2684.  Certificate  of  Discharge  under  Seal  of  Court  Proves  Dis- 
charge.— The  discharge  is  sufficiently  proved  by  production  of-  the  cer- 
tificate of  discharge  under  the  seal  of  the  U.  S.  court. 2" 

§  2685.  Interposition  of  Discharge  Throws  Burden  on  Plaintiff 
to  Show  Debt  Excepted. — When  the  discharge  has  been  set  up  properly, 
it  then  rests  on  the  plaintiff  to  show  why  he  should  not  be  bound  thereby.^s 

§  2686.  No  Collateral  Attack  on  Order  of  Discharge. — The  order 
of  discharge  may  not  be  questioned  or  attacked  collaterally. ^^ 

But  it  is  not  a  collateral  attack  on  a  discharge  for  a  creditor  to  raise  the 
particular  defense  that  his  particular  claim  is  not  discharged  where  it  is 
excepted  by  the  statute  from  the  operation  of  discharge.^" 

24.  No  reopening  of  judgment  to  permit  the  interposition  of  discharge 
will  be  allowed  where  the  judgment  creditor  was  not  "duly  scheduled"  and 
had  no  notice.     Reed    v.  Dippel,  17  A.  B.  R.  371,  16  Dist.   Rep.  126   (Penn.). 

Stevens  v.  Meyer,  8  A.  B.  R.  496  (N.  Y.  Sup.  Ct.  App.);  Collins  v.  McWal- 
ters, 6  A.  B.  R.  593  (N.  Y.  Sup.  Ct.  App.);  inferentially,  Bk.  of  Commerce  v. 
Elliott,  6  A.  B.  R.  409  (N.  Y.  Sup.  Ct.). 

25.  Analogously  (composition),  Bdway.  Trust  Co.  v.  Manheim,  14  A.  B.  R. 
122    (N.  Y.   Sup.   Ct.). 

26.  Analogously  (composition),.  Bdway.  Trust  Co.  v.  Manheim,  14  A.  B.  R. 
122  (N.  Y.  Sup.  Ct.).  But  compare  Bryant  v.  Kinyon,  6  A.  B.  R.  241  (Sup. 
Ct.    Mich.). 

Demurrer  to  answer  setting  up  defense  of  discharge  in  bankruptcy  admits 
regular  taking  of  all  necessary  steps  precedent  to  discharge.  Jarecki  Mfg. 
Co.  V.   AIcElwaine,   5   A.   B.   R.  751,   107   Fed.   249    (C.   C.   Ind.). 

27.  Bankr.  Act,  §  21  (f) :  "A  certified  copy  of  an  order  confirming  or  setting- 
aside  a  composition,  or  granting  or  setting  aside  a  discharge,  not  revoked, 
shall  be  evidence  of  the  jurisdiction  of  the  court,  the  regularity  of  the  pro- 
ceedings, and  of  the  fact  thaf  the  order  was  made." 

Custard  v.   Wiggerson,    17   A.    B.    R.    340    (Supreme    Court   Wis.). 

28.  Bdway.  Trust  Co.  v.  Manheim,  14  A.  B.  R.  123  (Sup.  Ct.  N.  Y.). 

29.  Custard,  v.  Wiggerson,  17  A.  B.  R.  340  (Supreme  Court  Wis.);  In  re 
Shaffer,  4  A.  B.  R.  728,  104  Fed.  982   (D.   C.  N.  Car.). 

30.  Sutherland  v.  Lasher,  11  A.  B.  R.  780  (N.  Y.  Sup.  Ct.).  See  ante,  § 
2667. 


1596  REMINGTON  ON  BANKRUPTCY.  ^  2689 

§  2687.  Erroneous  Judgment  Notwithstanding  Discharge  Duly- 
Pleaded  and  Proved,  Res  Judicata,  until  Reversed. — If  a  defense 
of  discharge  is  erroneously  held  not  to  bar  a  particular  debt,  error  or 
appeal  must  be  prosecuted,  else  the  judgment  is  res  ad  judicata. ^^ 

Howe  V.  Noyes,  15  A.  B.  R.  103  (X.  Y.  Sup.  Ct.  App.):  "It  is  evident  that 
§  1268  could  only  have  been  designed  as  a  summary  method  of  procuring  a 
cancellation  of  a  judgment  rendered  before  a  discharge  in  bankruptcy,  because 
in  all  cases  where  judgment  has  not  been  perfected  before  a  discharge,  the 
debtor  is  in  a  position  upon  his  discharge  to  plead  that  fact  as  a  bar  to  a  re- 
cover}'  of  judgment  and  thus  obtain  full  and  complete  advantage  of  his  dis- 
charge in  bankruptcy. 

"But  it  seems  to  me  that  no  other  effect  can  be  given  to  §  1268  than  that  it  is 
only  applicable  to  judgments  entered  before  a  discharge  in  bankruptcy  for  the 
reason  that  any  other  holding  would  conflict  with  the  doctrine  of  res  ad- 
judicate. 

"The  defense  of  a  discharge  in  bankruptcy  is  assuredly  available  in  an  action 
for  a  debt  dischargeable  in  bankruptcy,  and  it  needs  no  citation  of  authorities 
to  convince  one  familiar,  with  legal  rules  that  a  final  adjudication  of  the  issue 
raised  by  such  a  defense  is  conclusive  between  the  parties  and  hence  may  not 
be  considered  in  any  subsequent  action,  proceeding  or  motion  to  defeat  the 
eflfect  of  the  judgment." 

And  code  provisions  permitting  the  cancellation  of  judgments  discharged 
by  bankruptcy  or  rendered  upon  debts  discharged  thereby  can  only  refer 
to  judgments  rendered  before  the  granting  of  the  discharge  in  bankruptcy, 
as  any  other  holding  would  conflict  with  the  doctrine  of  res  adjudicata.^^ 

Division  3. 

Staying  Suits  against  the  Bankrupt  to  Permit   Interposition  oE 
Discharge:  and  Bankrupt's  Failure  to  Interpose  Discharge. 

§  2688.  Suits  against  Bankrupt  Stayed  until  Adjudication. — Suits 
en  dischargeable  debts  pending  against  a  debtor  at  the  time  of  the  filing 
of  the  bankruptcy  petition  are  stayed,  when  the  filing  thereof  is  brought  to 
the  attention  of  the  court  where  the  proceedings  are  pending,  until  either 
he  is  adjudged  a  bankrupt  or  the  petition  in  bankruptcy  is  dismissed. ^•'^ 

§  2689.   Available  to  Voluntary  and  Involuntary  Bankrupt  Alike. 

— The  stay  is  available  whether  the  bankrupt  be  a  voluntary  or  an  in- 
voluntary bankrupt.^-^ 

31.  Compare    post,    §    2693. 

32.  Howe  z'.  Noyes,  15  A.  B.  R.  103  (Sup.  Ct.  N.  Y.  App.).  Compare,  on 
germane  subjects,  Hussey  v.  Judson,  11  A.  B.  R.  521  (N.  Y.  Sup.  Ct.  App.), 
and   Stevens   v.    Meyers,   8   A.   B.   R.   496    (N.   Y.   Sup.   Ct.   App.). 

33.  Bankr.  Act,  §  11  (a):  "A  suit  which  is  founded  upon  a  claim  from 
which  a  discharge  would  be  a  release,  and  which  is  pending  against  a  person 
at  the  time  of  the  filing  of  a  petition  against  him,  shall  be  stayed  until  after 
an  adjudication  or  the  dismissal  of  the  petition;  if  such  a  person  is  adjudged 
a  bankrupt,  such  action  may  be  further  staj^ed  until  the  twelve  months  after 
the  date  of  said  adjudication,  or,  if  within  that  time  such  person  applies  for  a 
discharge   then   until   the   question   of   such  discharge   is'   determined." 

34.  In  re  Geister,  3  A.  B.   R.  228,  97  Fed.   322    (D.   C.   Iowa). 


§  2691  EFFECT  OF  DISCHARGE.  1597 

§  2690.  Stay  under  §  11  for  Bankrupt's  Benefit,  to  Permit  In- 
terposition of  Discharge. — The  stay  under  §  11  is  for  the  benefit  of 
the  bankrupt,  to  enable  him  to  interpose  his  discharge.  It  is  not  under  this 
provision  that  the  bankruptcy  court  acts  in  staying  or  restraining  suits  or 
proceedings  affecting  the  property  of  the  bankrupt  belonging  to  cred- 
itors.3^ 

:\Iarble  Co.  z\  Grant,  14  A.  B.  R.  289,  135  Fed.  322  (C.  C.  A.  Pa.):  "This  (is) 
obviously  for  the  purpose  of  assuring  to  the  court  of  bankruptcy  exclusive  au- 
thority to  adjudicate  the  claims  which,  by  their  orders  of  discharge,  they  may 
release.  It  does  not  apply  to  a  suit  brought  in  a  State  court  to  enforce  an 
asserted  right  in  rem  under  the  law  of  such  State." 

§  2691.  Debt  Dischargeable,  Else  No  Stay. — The  debt  must  be  a 
dischargeable  one,  else  the  suit  will  not  be  stayed  under  this  section  of  the 
statute.'^ '^ 

Thus,  stay  will  not  be  granted  in  an  action  for  obtaining  goods  by  false 
pretenses  ■,^''  nor  will  a  supplementary  proceeding  for  alimony  be  stayed.^^ 

Turner  z'.  Turner,  6  A.  B.  R.  289,  108  Fed.  785  (D.  C.  Ind.) :  "This  is  a  peti- 
tion for  an  injunction  restraining  the  prosecution  of  proceedings  supplementary 
to  execution  in  a  court  of  the  State.  *  *  *  The  right  to  the  restraining  order 
depends  on  the  question  whether  the  alimony  decreed  to  the  defendant  is  a 
debt  provable  against  the  bankrupt's  estate.  *  *  *  The  authorities  hold  that 
alimony  is  not  strictly  a  debt  due  to  the  wife,  but  rather  a  general  duty  of 
support  made  specific  by  the  decree  of  the  court.  *  *  *  It  is  a  special  fund, 
devoted  to  the  support  and  maintenance  of  the  wife,  provided  by  the  policy 
of  the  State  to  protect  her  from  becoming  a  public  charge,  and  to  secure  her 
from  the  temptations  of  a  life  of  vice." 

But  stay  will  be  granted  where  the  creditor  suing  is  omitted  from  the 
bankrupt's  schedules  but  has  knowledge  of  the  bankruptcy,  for  his  claim 

35.  See  subject  of  "Restraining  Orders"  as  part  of  the  "Provisional  Rem- 
edies" during  the  pendency  of  the  bankruptcy  petition,  ante,  §  400,  and  in 
"Aid  of  the  Collection  of  Assets,"  later,  ante,  §  1596. 

36.  In  re  Cole,  5  A.  B.  R.  780,  106  Fed.  837  (D.  C.  N.  Y.) ;  In  re  Sullivan, 
2  A.  B.  R.  30  (Ref.  N.  Y.) ;  In  re  Floyd,  15  A.  B.  R.  277  (Ref.  N.  Y.). 

(Perhaps)  White  i\  Thompson,  9  A.  B.  R.  653,  119  Fed.  868  (C.  C.  A.  Ala., 
for  referee's  decision,  see  10  A.  B.  R.  790).  Continental  National  Bank  v. 
Katz,  et  al.,  1  A.  B.  R.  19  (Superior  Ct.  111.).  Contra,  In  re  Rogers,  1  A. 
B.    R.   541    (Ref.    Ky.) :    Fiduciary   capacity. 

Whether  to  Be  "Clearly"  Shown  to  Be  within  Dischargeable  Class. — And 
that  the  debt  must  clearly  come  within  the  list  of  dischargeable  debts  is  laiJ 
down  as  the  rule.  In  re  Sullivan,  2  A.  B.  R.  30  (Ref.  N.  Y.).  But  there  can 
hardly  be  any  reason  for  such  a  rule — the  debt  either  is  or  is  not  discharge- 
able.     Whether  it   is   "clearly"   so   to   the    court   is   immaterial. 

Y^hether  Character  of  Debt  to  be  Determined  from  Pleadings. — The  char- 
acter of  the  suit,  it  is  held  in  one  case,  is  to  be  determined  by  the  pleadings. 
In  re  Adler,  18  A.   B.   R.  240   (C.   C.  A.  N.  Y.). 

37.  In  re  Wollock,  9  A.  B.  R.  685,  120  Fed.  516  (D.  C.  Ills.):  This  case 
was  decided,  however,  before  the  amendment  of  1903  made  liabilities  for  obtain- 
ing   property    by    false    pretenses,    nondischargeable. 

38.  White  v.  Thompson,  9  A.  B.  R.  653,  119  Fed.  868  (C.  C.  A.  Ala.,  for  ref- 
eree's decision,  see  10  A.  B.  R.  790). 


1598  REMIN^CTON  ON  BANKRUPTCY.  .  §  2695 

is  dischargeable  ;^^  and  an  unliquidated  provable  claim  diat  was  not  liqui- 
dated in  time  is  nevertheless  discharged  and  may  be  stayed.'*'^  Likewise, 
suits  for  conversions  by  factors  and  commission  men  will  be  stayed,  for 
£uch  liabilities  are  dischargeable.'^^ 

§  2692.  But  Proceedings  .on  Nondischargeable  Debts  Stayable 
Where  Creditor's  Rights  Involved. — But  legal  proceedings  upon  even 
nondischargeable  debts  may  be  stayed,  or  restrained  on  behalf  of  creditors 
v/here  creditors'  rights  are  involved;  and  §  11  will  not  be  construed  to 
"stay"  the  Bankruptcy  Court  from  staying  such  proceedings.'* ^ 

§  2693.  Error  in  Holding  Claim  Dischargeable  No  Warrant  for 
Disobedience. — Error  of  the  court  in  holding  a  claim  to  be  provable  and 
dischargeable  when  it  is  not  such,  will  not  authorize  a  disobedience  of  the 
stay.43 

§  2694.  Proceedings  Other  than  "Suits"  Stayed.— Proceedings 
other  than  those  technically  denominated  "suits"  may  be  stayed."'^ 

§  2695.  Ipso  Facto  Stayed  Till  Adjudication  or  Dismissal  of  Pe- 
tition.— It  has  been  held  that  the  suit  is  ipso  facto  stayed  for  a  time,  that 
is,  until  the  adjudication  or  dismissal  of  the  petition,  and  that  it  requires 
no  action  on  the  part  of  anyone  until  after  the  debtor  has  been  adjudged 
bankrupt."*  5 

In  re  DeLany,  10  A.  B.  R.  634,  124  Fed.  280  (D.  C.  N.  Y.) :  "In  effect,  sub- 
division 'a'  of  §  11  of  the  Bankruptcy  Law  operates  as  an  injunction  on  the 
county  judge  of  Broome  county,  the  plaintiff  in  the  action  against  DeLany 
(the  judgment  creditor)  and  its  attorneys,  and  the  referee,  Walker,  and  they 
were  bound  to  observe  and  obey  it  after  adjudication."  (Where  the  court  says 
by  the  provisions  of  §  11  (a)  the  filing  of  the  petition  operates  of  itself  as  a 
caveat  to  all  the  world,  until  the  adjudication  is  had  or  the  petition  is  dis- 
missed.) 

Obiter,  Carpenter  Bros.  v.  O'Connor,  1  A.  B.  R.  383,  16  Ohio  C.  C.  526:  "The 
order  of  procedure  in  this  case  should  be  under  the  statute  as  follows:  When 
the  petition  in  bankruptcy  was  filed  by  the  defendant,  all  proceedings  in  the 
State  court  should  stop.     In  other  words,  in  the  language  of  the  Bankrupt  Act 

39.  In  re  Beerman,  7  A.  B.  R.  434,  112  Fed.  663   (D.  C.   Ga.). 

40.  In  re  Hilton,  4  A.  B.  R.  774,  104  Fed.  981  (D.  C.  N.  Y.). 

41.  In  re  Basch,  3  A.  B.  R.  235,  97'Fed.  761  (D.  C.  N.  Y.);  In  re  Adler,  18  A. 
B.  R.  240  (C.  C.  A.  N.  Y.). 

42.  Bear  v.  Chase,  3  A.  B.  R.  746,  99  Fed.  920  (C.  C.  A.  S.  C). 

43.  Wagner  v.  U.  S.,  4  A.  B.  R.  496,  104  Fed.  133  (C.  C.  A.  Ky.) ;  In  re  Mar- 
cus, 5  A.  B.  R.  365,  105  Fed.  907  (C.  C.  A.  Mass.).     Compare,  §  2687. 

44.  In  re  Hicks,  13  A.  B.  R.  654,  133  Fed.  654  (D.  C.  N.  Y.) :  In  this  case, 
the  bankrupt  was  a  member  of  the  city  fire  department  and  proceedings  under 
city  ordinance  to  collect  dues  were  stayed. 

45.  Also,  In  re  Mertens,  14  A.  B.  R.  229  (D.  C.  N.  Y.).  But  see  Kinmouth 
V.  Braeutigan,  46  Atl.  769  (approved  in  In  re  Engle,  5  A.  B.  R.  372,  105  Fed. 
893;  and,  also,  see  Kinmouth  v.  Breautigam,  10  A.  B.  R.  83,  on  cognate  point). 


§    2697  EFFECT  OF  DISCHARGE.  1599 

as   contained   in   §   11,   'The   proceedings    shall   be   stayed.'     This   is   mandatory. 

The  State  court  has  no  right  to  proceed  further  in  an  action  there  pending  until 
the  petition  in  bankruptcy  has  been  adjudicated.  When  that  has  been  dorus, 
the  case  may  be  further  stayed  in  the  State  court  at  its  discretion." 

The  provisions  of  §  11  (a)  seem  to  be  more  direct  to  the  protection  of 
the  bankrupt,  to  the  end  that  he  may  not  lose  the  benefit  of  his  discharge, 
than  to  the  protection  of  creditors ;  yet  they  incidentally  do  operate  to  pro- 
tect creditors  during  the  period  intervening  between  the  filing  of  the  pe- 
tition and  the  adjudication. 

§  2696.  Thereafter,  Further  Stayed,  on  Application,  until  Dis- 
charge Heard. — Thereafter  they  may  be  further  stayed,  not  to  exceed 
one  year  from  the  adjudication,  unless  beforehand  the  petition  for  dis- 
charge is  filed,  and  then  until  the  question  of  the  debtor's  discharge  has 
been  settled,  and  the  debtor  thus  been  given  an  opportunity  to  present  the 
discharge  as  a  defense.^*^ 

§  2697.  Not  Only  Pending"  Suits  but  Also  Subsequent  Suits 
Stayed. — Not- only  suits  pending  at  the  time  of  the  filing  of  the  bankruptcy 
petition  may  be  so  stayed,  but  those  filed  afterward  and  before  discharge 
is  granted. 

In  re  Wollock,  9  A.  B.  R.  687,  120  Fed.  516  (D.  C.  Ills.):  "There  is  nothing 
in  the  point  made  by  counsel  that  the  court  is  without  power  to  stay  a  proceed- 
ing begun  after  the  filing  of  a  petition  in  bankruptcy.  The  argument  reduces 
itself  to  an  absurdity.  Section  11  of  the  Act  of  1898  provides  that  the  court 
shall  stay  a  suit  which  is  founded  upon  a  claim  from  which  a  discharge  would 
be  released,  etc.;  the  plain  object  of  the  section  being  to  bring  all  matters 
affecting  provable  claims  into  the  EHstrict  Court.  Section  11  provides  that 
nothing  in  that  section  shall  be  construed  to  deprive  a  court  of  bankruptcy  of 
any  power  it  would  possess  were  certain  specific  powers  not  therein  numerated. 
Clause  15,  §  2,  provides  that  the  court  has  such  jurisdiction  at  law  and  in  equity 
as  will  enable  it  to  'make  such  orders,  issue  such  process  and  enter  such  judg- 
ments in  addition  to  those  specifically  provided  for,  as  may  be  necessary  for 
the  enforcement  of  this  act.'  It  will  be  seen  that  the  court  is  required  to  stay 
only  provable  claims,  by  the  statute.  This  would  not  limit  its  power  to  prov- 
able clairhs  in  a  case,  the  prosecution  of  which  would  interfere  with  the  proper 
enforcement  ot  the  act.  It  is  admitted  by  the  petition  presented  herein  for  a 
restraining  order  that  the  action  sought  to  be  stayed  is  an  action  on  the  case 
for  fraud.  If  tried,  the  verdict  must  be  'guilty'  or  'not  guilty.''  Fraud  is  the 
gist  of  the  action.  Unless  fraud  is  proven,  there  can  be  no  recovery.  The 
judgment  of  the  court  will  be  conclusive  as  to  the  existence  or  absence  of  fraud. 
Manifestly,  under  the  holding  above  set  out,  the  court  is  entirely  without  juris- 
diction to  stay  the  proceedings,  under  the  language  of  the  statute;  and  where,  as 
in  this"  case,  there  is  nothing  but  the  question  of  fraud  involved,  to  which  a 
discharge  cannot  be  pleaded,  there  can  be  no  embarrassment  to  the  administra- 
tion of  the  bankruptcy  cause  by  this  court — consequently  no  case  made  for 
the  general  powers  of  this  court." 

46.  Bankr.  Act,  §  11  (a).  For  form  of  such  orders,  see  In  re  Fortunato,  9  A. 
B.  R.  631,  123  Fed.  622  (D.  C.  N.  Y.) ;  Carpenter  Bros.  v.  O'Connor,  1  A.  B.  R. 
383,  16  Ohio  C.  C.  526. 


1600  REMINGTON  OX  BANKRUPTCY.  §  2699 

§  2698.  Further  Stay  Discretionary. — The  further  stay  is  discre- 
tionary. 

In  re  Lesser,  3  A.  B.  R.  759,  100  Fed.  433  (C.  C.  A.  X.  Y.) :  "The  making- 
of  such  an  order  is  discretionary  with  the  District  Court — the  language  being 
'such  action  may  be  stayed" — and  that  discretion  should  not  be  interfered  with, 
unless  it  has  been  abused." 

§  2699.  Comity  Requires  Request  for  Stay  First  in  Court  Where 
Action  Pending. — The  further  stay  may  be.  and  usually  is,  asked  for  in 
the  court  wherein  the  action  is  pending.  Comity  would  seem  to  require 
epplication  to  be  made  there  first.-*" 

In  re  Geister,  3  A.  B.  R.  228,  97  Fed.  322  (D.  C.  Iowa):  "The  proper  practice 
to  be  followed  in  this  class  of  cases  is  to  make  the  application  to  the  court 
,  wherein  the  action  sought  to  be  stayed  is  pending,  and  it  is  the  duty  of  that 
court,  whether  it  be  State  or  Federal,  to  grant  a  stay  according  to  the  pro- 
visions of  the  Bankrupt  Act.     *    *    * 

"The  rule  thus  announced  under  the  provisions  of  the  Act  of  1867  is  clearly 
applicable  to  §  11  of  the  Act  of  1898,  and  points  out  the  course  to  be  pursued 
in  cases  like  that  now  under  consideration.  The  bankrupt  who  is  the  defendant 
in  the  State  Court  should  file  in  that  court  a  proper  pleading  setting  forth  the 
pendency  of  the  proceedings  in  bankruptc}^,  and,  based  thereon,  should  ask  a 
stay  as  provided  for  in  §  11;  and,  upon  being  thus  informed  of  the  pendency  of 
the  proceedings  in  bankruptcy,  it  will  become  the  duty  of  the  State  Court  to 
grant  the  stay  prayed  for.  Not  only  is  this  the  proper  method  of  bringing  to 
the  judicial  notice  of  the  State  Court  the  fact  that  proceedings  in  bankruptcy 
have  been  instituted,  and  therefore  the  bankrupt  has  a  right  to  a  stay  of  the 
case  until  the  question  of  a  discharge  can  be  heard,  but  it  is  also  the  proper 
procedure,  for  the  reason  that  the  creditors,  who  are  the  plaintiffs  in  the  suit 
sought  to  be  stayed,  are  parties  to  the  action  in  the  State  Court,  are  within  its 
jurisdiction,  and  will  therefore  be  bound  by  its  action  in  the  premises,  whereas, 
they  are  not  now  subject  to'the  jurisdiction  of  this  court,  as  they  have  not  been 
notified  of  the  filing  of  this  petition  now  before  the  court,  nor  in  any  way 
brought  within  the  actual  jurisdiction  of  this  court.  For  these  reasons  the 
prayer  of  the  petition  is  refused,  on  the  ground  that  the  application *for  a  stay 
should  be  made  in  the  State  Court  in  which  the  case  is  pending." 

[1867]  Hill  T.  Harding,  107  U.  S.  631:  "The  terms  of  this  enactment  are  as 
broad  and  as  peremptory  as  possible:  'Xo  creditor  whose  debt  is  provable 
shall  be  allowed  to  prosecute  to  final  judgment'  any  suit  thereon  against  the 
bankrupt;  and  such  suit  'shall,  upon  application  of  the  bankrupt,  be  stayed.' 
This  provision,  like  all  laws  of  the  United  States  made  in  pursuance  of  the 
constitution, .  binds  the  courts  of  each  State  as  well  as  those  of  the  nation. 
Upon  the  application  of  the  bankrupt  to  the  court.  State  or  national,  in  which 
the  suit  is  pending,  it  is  the  duty  of  that  court  to  stay  the  proceedings,  'to  await 
the  determination  of  the  court  in  bankruptcy  on  the  question  of  the  discharge,' 
unless  there  is  unreasonable  delay  on  part  of  the  bankrupt  in  endeavoring  to 
obtain  his  discharge." 

[1867]    Boynton  z'.  Ball,  121  U.  S.  457:     "The  State  court  could  not  know  or 

47.  Kinmouth  v.  Braeutigam,  10  A.  B.  R.  85  (Court  of  Chancery  X.  J.);  see 
also,  4  A.  B.  R.  344.  Compare  analogous  proposition  as  to  the  restraining  of 
legal  proceedings  in  aid  of  creditors,  ante,  §§  362,  1904. 


§    2702  EFFECT  OF  DISCHARGE.  1601 

take  judicial  notice  of  the  proceedings  in  bankruptcy  unless  they  were  brought 
before  it  in  some  appropriate  manner,  and  the  provisions  of  this  section  show- 
plainly  that  it  does  not  thereupon  lose  jurisdiction  of  the  case,  but  the  pro- 
ceedings may,  upon  the  application  of  the  bankrupt,  be  stayed  to  await  the 
determination  of  the  Court  in  Bankruptcy  on  the  question  of  his'  discharge." 

§  2700.    But  Bankruptcy  Court  May  Enjoin  if  Necessary. — The 

bankruptcy  court  may  issue  a  restraining  order  further  staying  the  action 
in  the  State  court,  if  necessary.'*^  ■ 

Thus,  where  an  execution  from  a  justice  of  the  peace  court  was  levied 
on  exempt  property,  and  the  bankrupt  pleaded  his  adjudication,  but  the 
justice  disregarded  it  and  rendered  judgment  and  ordered  sale — comity 
will  not  require  the  bankruptcy  court  to  ask  the  justice  for  an  order 
on  the  constable  to  surrender  the  property ;  but  the  bankruptcy  court  may 
order  its  marshal  to  seize  the  property.^^  Again,  an  execution  on  a  judg- 
ment obtained  after  the  adjudication  in  an  action  pending  at  the  time  of 
the  bankruptcy  by  a  creditor  omitted  from  the  schedules,  may  be  en- 
joined.■'^*^  But  the  state  court's  officer,  generally,  should  not  be  enjoined 
until  first  notice  has  been  given  to  him  of  the  application  for  the  injunc- 
tion;^^ nevertheless,  a  temporary  restraining  order  may  issue  without  such 
notice,  if  absolutely  necessary. ^^ 

§  2701.   Referee  No  Jurisdiction  to  Enjoin  Court  or  Court  Officer. 

— But  the  referee  has  not  the  jurisdiction  to  issue  the  restraining  order,  or 
injunction,  to  restrain  the  proceedings  of  a  court  or  of  an  officer  of  a  State 
or  of  the  United  States.     The  judge,  only,  may  do  so.^^ 

§  2702.  Stay  Applies  to  All  Incidents  of  Proceedings  in  State 
Courts. — This  stay  applies  to  all  incidents  of  the  proceedings  in  the  state 
court. 

Thus,  supplementary  proceedings,  in  aid  of  execution,  in  the  state  court, 
may  be  so  stayed.^-* 

In  re  Lesser,  3  A.  B.  R.  758,  99  Fed.  913  (C.  C.  A.  N.  Y.) :  "There  is,  of 
course,  no  contention  that  the  initiation  of  the  proceedings  supplementary  to 
execution   less    than   a   month   before   the    Lessers   were   adjudicated   bankrupts 

48.  In  re  DeLany,  10  A.  B.  R.  634,  124  Fed.  380  (D.  C.  N.  Y.).  Impliedly,  In 
re  Fortunate,  9  A.  B.  R.  630,  123  Fed.  622  (D.  C.  N.  Y.).  Compare  analogous 
proposition  where  the  stay  is  sought  in  behalf  of  creditors,  ante,  §§  362,  1904, 
et  seq. 

49.  In  re  Tune,  8  A.  B.  R.  285,  115  Fed.  906  (D.  C.  Ala.).  But  see.  White  v. 
Thompson,  9  A.  B.  R.  653,  119  Fed.  868  (C.  C.  A.  Ala.). 

50.  In  re  Beerman,  7  A.  B.  R.  434,  112  Fed.  663  (D.  C.  Ga.). 

51.  Obiter,  In  re  Tune,  8  A.  B.  R.  285,  115  Fed.  906   (D.  C.  Ala.). 

52.  In  re  Tune.  8  A.  B.  R.  285,  115  Fed.  906  (D.  C.  Ala.). 

53.  See  ante,  §§  528,  1918. 

54.  In  re  Adams,  1  A.  B.  R.  96  (Ref.  N.  Y.) ;  In  re  Fortunato,  9  A.  B.  R.  630, 
123  Fed.  622  (D.  C.  N.  Y.) ;  In  re  DeLong,  1  A.  B.  R.  66  (Ref.  N.  Y.);  In  re 
Kletchka,  1  A.  B.  R.  479,  92  Fed.  901  (D.  C.  N.  Y.) ;  [1867]  Johnson  v.  Rogers, 
15  N.  B.  R.  110,  13  Fed.  Cases  794;  [1867]  In  re  Pitts,  9  Fed.  542;  [1867]  Olney 
V.  Tanner,  10  Fed.  101,  113  (affirmed  in  18  Fed.  636). 

2  Rem  B— 26 


1602  REMINGTON    ON   BANKRUPTCY.  f^  2703 

gave  the  petitioning  bank  any  superior  lien.  The  only  interference  to  which 
the  order  will  subject  it  is  that  it  will  not  be  able  to  examine  Tobias  Lesser 
in  supplementary  proceedings  as  to  what  disposition  was  made  of  the  property 
of  the  firm  and  its  individual  members,  thus  obtaining  information  which  might 
be  material  or  useful  in  the  prosecution  of  the  equity  suit.  Since  the  petitioner, 
however,  may  subject  the  bankrupts  to  a  most  searching  examination  in  the 
District  Court,  and  thereby  obtain  the  same  information,  it  is  not  easy  to  see 
in  what  way  petitioner  is  prejudiced." 

In  re  DeLany  &  Co.,  10  A.  B.  R.  634,  124  Fed.  280  (D.  C.  X.  Y.) :  "The  judg- 
ment debtors  made  a  mistake  in  not  applying  to  this  court  for  a  stay  of  the 
supplementary  proceedings  instead  of  failing  to  appear  for  examination.  But 
this  may  be  regarded  as  an  application  to  stay  all  proceedings  on  the  judgment 
mentioned,  including  the  supplementary  proceedings,  and  proceedings  founded 
thereon  and  ronnected  therewith,  to  punish  for  the  contempt,  which  evidently 
was  not  intended,  the  party  evidently  supposing  that  the  adjudication  in  bank- 
ruptcy released  her  from  any  obligation  to  appear  and  submit  to  an  examina- 
tion." 

And  a  motion  to  commit  the  bankrupt  for  contempt  therein  is  stayed  as 
well  as  all  other  proceedings,  and  disobedience  of  the  stay  is  itself  a  con- 
tempt.^ ^ 

Thtis,  an  execution  issued  on  a  judgment  rendered  after  the  adjudica- 
tion in  bankruptcy  but  before  the  discharge,  should  be  perpetually  stayed, 
if  the  claim  was  a  dischargeable  claim  at  the  time  of  the  bankruptcy.^^ 
Likewise,  an  execution  levied  on  exempt  property  on  a  judgment  rendered 
by  a  justice  of  the  peace,  in  disregard  of  the  adjudication  although  pleaded 
by  the  bankrupt,  will  be  restrained.^^ 

And  the  omission  from  the  bankrupt'^  schedules  of  the  creditor  who  is 
suing  the  bankrupt,  does  not  prevent  stay  being  granted.-^^  But  the  stay 
should  not  be  extended  to  the  benefit  of  others  than  the  bankrupt  ;-^^  thus, 
not  to  those  jointly  liable  with  him. 

§  2703.  No  Further  Stay  than  for  Year,  unless  Application  for 
Discharge  Filed  within  Year  Not  Yet  Acted  upon. — Such  further  stay 
cannot  be  demanded,  as  of  right,  for  a  longer  period  than  one  year  from 
the  date  of  the  bankrupt's  adjudication,  unless  the  petition  for  discharge  is 
filed  and  not  yet  acted  on;*^*^  nor  for  even  that  period  if  the  discharge  is 
granted  or  refused  within  the  year. 

55.  In  re  Fortunato,  9  A.  B.  R.  630,  123  Fed.  622  (D.  C.  N.  Y.),  a,  case  oc- 
curring before  adjudication.  But  not  by  the  referee,  In  re  Siebert,  13  A.  B.  R. 
348,  133  Fed.  781  (D.  C.  N.  J.).  Apparently,  contra.  In  re  DeLong,  1  A.  B.  R. 
66  (Ref.  N.  Y.).  Also,  apparently  contra,  In  re  Adams,  1  A.  B.  R.  96  (Ref. 
N.  Y.). 

56.  Barnes  :\Ifg.  Co.  v.  Xorden,  7  A.  B.  R.  553  (Sup.  Ct.  N.  J.). 

57.  In  re  Tune,  8  A.  B.  R.  285,  115  Fed.  906  (D.  C.  Ala.). 

58.  In  re  Beerman,  7  A.  B.  R.  434,  112   Fed.  663   (D.  C.   Ga.J. 

59.  In  re  DeLong,  1  A.  B.  R.  66  (Ref.  N.  Y.). 

60.  Bankr.  Act,  §  11  (a).  In  re  Flanders,  10  A.  B.  R.  379,  121  Fed.  236  (D. 
C.  Vt.). 


2707  EFFECT  OF  DISCHARGE.  1603 

§  2704.  If  Stay  Not  Applied  for,  Judgment  and  Orders  of  State 
Court  Valid. — If  the  bankrupt  fails  to  apply  for  such  further  stay,  the 
state  court  may  go  on  and  render  judgment  in  personam  against  him,  and 
the  judgment  (if  rendered  after  the  discharge  has  been  granted  or  re- 
fused) will  be  good,  notwithstanding  the  bankruptcy.'''^ 

Obiter,  In  re  DeLany,  10  A.  B.  R.  635,  124  Fed.  280  (D.  C.  N.  Y.) :  "If 
not  stayed,  thej  continue,  and  the  debtor,  though  a  bankrupt,  may  be  compelled 
to  observe  and  obey  all  orders  of  the  State  court  lawfully  made." 

Save  and  except  that,  if  it  be  rendered  upon  a  dischargeable  debt  and  be 
rendered  before  the  consideration  of  the  bankrupt's  petition  for  discharge, 
it  will  itself  be  discharged. "^^ 

§  2705.  Or  if  Discharge  Refused,  Court  May  Render  Judgment  in 
Personam  and  Judgment  Will  Be  Good. — If  the  bankrupt's  discharge 
is  refused,  the  court  may  go  on  and  render  judgment  in  personam. "^^ 

§  2706.  Or  if  Not  Interposed  Though  Granted,  Judgment  Valid. — 

If  the  bankrupt  fails  to  interpose  his  discharge  after  it  has  been  granted,  a 
judgment  thereafter  rendered  against  him,  in  a  pending  suit  started  before 
the  bankruptcy,  is  good  f^  and,  of  course,  is  also  valid  if  rendered  on  a 
right  of  action  arising  after  bankruptcy. 

§  2707.  Statutory  Cancellation  of  Subsequently-Rendered  Judg- 
ments.— However,  in  some  states  the  statute  permits  the  cancellation  of 
judgments  rendered  on  causes  of  action  arising  before  bankruptcy,  after 
the  discharge  in  bankruptcy  is  granted.*^^ 

And  this  exception  prevails,  although,  after  the  discharge  was  granted 
and  the  stay  was  still  in  existence,  leave  had  been  asked  and  granted  to 
plead  the  discharge,  but  the  discharge  was  never  pleaded.'"'  But  the  ex- 
ception does  not  prevail  where  the  ex-bankrupt  agrees  to  let  judgment  be 
taken  in  reliance  upon  the  statute  permitting  such  cancellation,  the  con- 

61.  Impliedly,  Kinmouth  v.  Braeutigam,  10  A.  B.  R.  85  (Court  of  Chancery 
N.  J.);  also,  4  A.  B.  R.  344;  inferentially,  In  re  Tune,  8  A.  B.  R.  285,  115  Fed. 
906  (D.  C.  Ala.);  inferentially.  Bank  of  Commerce  v.  Elliott,  6  A.  B.  R.  400 
(Sup.  Ct.  Wis.);  inferentially,  Snyder  v.  Guthrie,  17  A.  B.  R.  902  (Penn.  Com. 
Pleas). 

62.  Bankr.  Act,  §  63  (a)  (5).  Apparently  contra,  Snyder  v.  Guthrie,  17  A.  B. 
R.  902  (Pa.  Com.  Pleas). 

63.  Obiter,  In  re  Tune,  8  A.  B.  R.  285,  115  Fed.  906  (D.  C.  Ala.). 

64.  Stevens  v.  Meyer,  8  A.  B.  R.  496  (Sup.  Ct.  N.  Y.  App.) ;  Bank  of  Com- 
merce V.  Elliott,  6  A.  B.  R.  409  (Sup.  Ct.  Wis.);  Collies  v.  McWalters,  6  A.  B. 
R.  593  (N.  Y.  Sup.  Ct.);  obiter,  In  re  Tune,  8  A.  B.  R.  285,  115  Fed.  906  (D.  C. 
Ala.). 

Vacating  judgments  in  order  to  permit  plea  of  discharge:  Kinmouth  v. 
Braeutigam,  4  A.  B.  R.  344  (Sup.  Ct.  N.  J.).     See  same  case  in  10  A.  B.  R.  85. 

65.  Hussey  v.  Judson,  11  A.  B.  R.  520  (Sup.  Ct.  N.  Y.  App.  Div.).  Compare, 
on  general  subject,  Howe  v.  Noyes,  15  A.  B.  R.  10.'5  (Sup.  Ct.  N.  Y.  App.). 

66.  Hussey  v.  Judson,  11  A.  B.  R.  520  (Sup.  Ct.  N.  Y.  App.  Div.). 


1604  REMINGTON    ON    BANKRUPTCY.  §  2710 

sideration  for  the  agreement  being  the  withdrawal  by  the  plaintiff  of  al- 
legations of  fraud.*^" 

§  2708.  No  Vacating  of  Judgment  Rendered  after  Discharge,  for 
Interposition  of  Discharge. — And  a  judgment  rendered  after  a  dis- 
charge has  been  granted  will  not  be  opened  up  to  let  in  the  defense  of  dis- 
charge, even  though  the  judgment  was  rendered  on  warrant  of  attorney ,^*^ 
for  the  defense  of  discharge,  though  perfectly  legal  and  valid,  is  not 
favored. 

§  2709.  Stay  Only  Protects  Bankrupt  from  Judgment  in  Per- 
sonam— Judgments  in  Rem  as  to  Property  Unaffected. — The  stay 
when  asked  for  by  the  bankrupt,  in  order  to  give  him  opportunity  to  plead 
his  discharge,  as,  likewise,  the  bar  of  the  discharge  when  pleaded  and 
sustained,  extends  no  further  than  to  protect  the  bankrupt  from  a  judg- 
ment in  personam,  or  other  personal  order,  the  discharge  in  and  of  itself 
not  being  a  defense  to  proceedings  in  rem;  for,  as  previously  noted,*^^  the 
discharge  bars  debts,  not  liens  nor  the  assertion  of  interests  in  property.'^*^ 

Marble  Co.  v.  Grant,  14  A.  B.  R.  288,  135  Fed.  322  (C.  C.  A.  Pa.):  "Section 
11  (a)  *  *  *  does  not  apply  to  a  suit  brought  in  a  State  court  to  enforce  an 
asserted  right  in  rem  under  the  State  law." 

§  2710.  Stay  Dissolved  after  Discharge  Granted,  or  Refused,  or 
Dismissed. — The  stay  should  be  dissolved  after  the  discharge  has  been 
granted,  or  refused,  or  the  petition  for  discharge  dismissed ;  and  the 
parties  should  be  relegated  to  their  remedies  in  the  suit."^ 

In  re  Flanders,  10  A.  B.  R.  379,  121  Fed.  936  (D.  C.  Vt.):  "By  the  terms  of 
the  Bankrupt  Act,  such  a  stay  is  to  be  granted  only  for  the  time  during  which 
the  question  of  discharge  may  be  open  and  pending.  *  -^  *  If  a  discharge  is 
denied,  or  the  time  for  asking  one  is  allowed  to  expire  without  application, 
there  is  no  occasion  for  such  stay.  The  suit  may  proceed  as  if  there  had  been 
no  bankruptcy,  except  as  the  trustee  may  intervene  to  save  property  rights  for 
the  estate." 

And  the  stay  should  be  dissolved  upon  dismissal  for  lack  of  prosecution 
of  the  petition  for  discharge. 

In  re  Lederer,  10  A.  B.  R.  492,  125  Fed.  96  (D.  C.  N.  Y.):  "If  the  bankrupt 
files  a  petition  for   discharge,  and  then   fails  to  carry  on   the  proceedings   with 

67.  Stevens  v.  Aleyers,  8  A.  B.  R.  496  (Sup.  Ct.  X.  Y.  App.). 

68.  Snyder  v.  Guthrie,  17  A.  B.  R.  902  (Pa.  Ct.  Com.  Pleas). 

69.  See  ante.  §  2668. 

70.  Bk.  of  Commerce  v.  Elliott.  6  A.  B.  R.  409  (Sup.  Ct.  Wis.),  quoted  ante, 
§  2668.  Berry  t'.  Jackson,  8  A.  B.  R.  485,  41  S.  E.  698  (Sup.  Ct.  Ga.),  qiloted 
ante,  §  2668.  Continental  Nafl  Bk.  v.  Katz,  1  A.  B.  R.  19  (Super.  Ct.  Ills.^; 
Reid,  Murdock  &  Co.  v.  Cross,  1  A.  B.  R.  34  (Super.  Ct.  Ills.). 

In  re  DeLong,  1  A.  B.  R.  66  (Ref.  N.  Y.):  Supplementary  proceedings 
against  bankrupt  and  others  joint  judgment  debtors  should  be  stayed  only  as  t:> 
bankrupt. 

71.  In  re  Rosenthal,  5  A.  B.  R.  799,  108  Fed.  368   (D.  C.  N.  Y.). 


§   2713  EFFECT  OF  DISCIIxVRGF.  1605 

reasonable  promptness,  the  court,  upon  a  proper  application,  will  dismiss  the 
application  for  discharge  for  want  of  prosecution,  and  vacate  all  injunctions 
staying  proceedings   at  law." 

§  2711.  Qualified  Stay  Where  Levy  Sought  on  Exempt  Property 
Not  Exempt  as  to  Levy  Sought. — It  would  also  seem  that,  if,  there 
would  be  no  exemptions  against  a  levy  of  execution  under  the  particular 
judgment  sought  to  be  obtained,  the  stay  should  be  so  qualified  as  to  per- 
mit judgment  to  be  taken  for  the  purpose  of  levying  on  the  exempt  prop- 
erty. This  is  a  necessary  corollary  of  the  rule  that  the  bankruptcy  court 
wall  not  administer  exempt  property  for  the  benefit  of  certain  creditors 
as  to  whom  the  property  is  not  exempt.  It  would  be  inequitable  to  deprive 
such  creditors  of  an  opportimity  to  reduce  their  claims  to  judgment  for 
the  purpose  of  levying  execution  on  the  exempt  property,  or  otherwise 
subjecting  the  same  by  legal  proceedings.'^ 

§  2712.  And  Where  Judgment  Necessary  to  Perfect  Rights 
against  Surety,  or  Property. — Likewise,  where  a  creditor's  rights 
against  a  surety  are  dependent  upon  his  getting  judgment  against  the  bank- 
rupt principal,  it  would  seem  a  proper  exercise  of  discretion  to  permit 
proceedings  to  be  instituted,  or  pending  proceedings  to  be  prosecuted  to 
judgment,  for  the  purpose  of  fixing  the  surety's  liability.'''^  Likewise,  a 
creditor  may  be  permitted  to  prosecute  a  pending  action  where  it  is  neces- 
sary that  it  be  reduced  to  judgment  or  decree  in  order  to  secure  his 
rights.'^'*  And,  in  general,  the  bankruptcy  court  has  jurisdiction  to  sus- 
pend the  proceedings  in  bankruptcy  for  a  reasonable  time,  to  allow  pro- 
ceedings to  be  prosecuted  in  other  jurisdictions  for  the  enforcement  of  the 
rights  of  tlie  parties."^ 

§  2713.  No  Deprivation  of  Right  of  Discharge  by  Staying  Dis- 
charge Hearing  or  Refusing  to  Stay  Creditor's  Suits  Where  Judg- 
ment Requisite  to  Perfect  Creditor's  Rights  against  Sureties,  etc. 

— Where  the  bankruptcy  court  has  refused  to  stay  a  creditor's  suit  in 
order  to  enable  the  creditor  to  perfect  his  rights  against  exempt  property, 
or  against  sureties  or  others  in  similar  relations,  and  where,  on  the  con- 
trary, it  has  even  stayed  the  hearing  on  the  bankrupt's  own  application 
for  discharge  in  order  to  prevent  such  discharge  being  interposed  as  a 
bar  to  such  perfecting  of  rights,  such  refusal  to  stay  the  creditor's  pro- 
ceedings and  such  staying  of  the  bankrupt's  discharge,  do  not  deprive  the 
bankrupt  of  any  substantial  right  nor  take   from  him  the  benefit  of  his 

72.  See  "Exemptions,"  ante,  §§  1103,  1104,  et  seq. 

73.  See  "Rights  of  Creditors  against  Third  Parties  Jointly  or  Secondarily 
Liable,"  §  1524. 

74.  Instance,  issuance  of  scire  facias  on  mortgage  after  adjudicati/m:  In  re 
Engle,  5  A.  B.  R.  372,  374,  105  Fed.  893  (D.  C.  Pa.). 

75.  Compare,  dissenting  opinion  in  City  of  Waco  v.  Bryan,  11  A.  B.  R.  481, 
127  Fed.  79  (C.  C.  A.  Tex.). 


l(,()(j  REMINGTON  ON   BANKRUPTCY.  f^  2717 

discharge;  for  the  judgment  so  obtained  is  itself  discharged,  9,o  far  as 
its  efifect  as  a  judgment  in  ])ersonam  is  concerned,  tlicnigh  vahd  so  far 
as  concerns  the  fixing  of  the  crecHtor's  rights  against  property  or  sureties. 
y\nd  this  is  so,  because,  by  the  wise  forethought  of  the  framers  of  the  act, 
such  judgment,  so  obtained  "after  the  fihng  of  the  petition  and  before  the 
consideration  of  the  1)ankrui)t's  apphcation  for  a  discharge,"  is  itself,  by 
§  63  (a)  (5),  declared  to  be  a  "])rovable  del)t,"  and  by  virtue  of  being 
a  "provable  debt,"  is  discharged  by  §  17  of  the  act,  discharging  "all 
provable  debts  except,  etc/"^" 

Division  4. 

RivvivAi.  oi"  Discharged  Debt. 

§  2714.  Revival  of  Discharged  Debt. — The  bar  oi  the  discharge  may 
be  waived  and  the  original  debt  revived.'^'^  This  applies  to  composition 
cases  as  well  as  to  cases  where  the  estate  is  distributed  in  bankruptcy.''^ 

§  2715.  No  New  Consideration  Necessary. — No  new  consideration 
is  necessary  to  supp(n-t  the  waiver:  the  existence  of  the  liability  itself  is 
sufficient,  although  it  would  be  unenforceable  by  legal  proceedings  but 
for  the  waiver.'^" 

§  2716.  Part  Payment  on  Account  Insufficient  to  Revive  Debt. — 

Neither  part  payment,  nor  partial  payments  on  account  from  time  1(j  time, 
will  ipso  facto,  waive  tlie  discharge.*^*'  / 

§  2717.  But  Discharge  Waivable  by  New  Promise. — l^>ul  the  dis- 
charge is  waivable  by  a  new  ])romise.'^' 

Tntcrn.-ilional  Harvester  Co.  v.  Lyman,  10  A.  B.  R.  4.''>0  (Sup.  Ct.  Minn.):  "A 
•  Idinilc  jjromise  of  a  debtor  is  sufficient  to  revive  the  obligation  after  a  dis- 
charjre  in  bankruptcy." 

76.  Instance,  although  point  not  advert imI  to,  I'.arnes  Mfg.  Co.  v.  Norden,  7 
A.  J'.  R.  ryTili  (N.  Y.  Sup.  Ct.).  I'ut  compare  instance  where  rule  apjjarently  dis- 
regarded, obiter,  Snyder  7a  (kithric,  17  A.   I'..  R.  002   (Pa.  Com.  Pleas). 

77.  Gruenberg  v.  Trainor,  II  A.  H.  R.  776  (Sup.  Ct.  N.  Y.  Apj).  J)iv.);  Mut. 
Res.  Fund  Life  Ass'n  v.  Beatty,  2  A.  B.  R.  244,  9:5  Ped.  747  (C.  C.  A.  Calif.); 
obiter,  In  re  Shaffer,  4  A.  R.  R.  728,  104  Fed.  982  (D.  C.  N.  Car.). 

78.  lnii)li(dly,  obiter,  Mandell  &;  Co.  v.  Levy,  14  A.  P,.  R.  r)49  (N.  Y.  Suj).  Ct. 
App.). 

79.  (huenberg  v.  Trainor,  11  A.  B.  R.  776  (Sup.  Ct.  N.  Y.  App.  Div.);  Mut. 
Res.  I'und  Life  Ass'n  v.  Beatty,  2  A.  B.  R.  244,  9;{  Fed.  982  (C.  C.  A.  Calif.). 

80.  Dyer  v.  Isliam,  4th  Ohio  C.  429;  Grill  v.  Solomon,  82  Ala.  8.');  Willetts  v. 
Catherson,  :i  Ills.  App.  644;  I'.ielc  v.  Ogilivie,  2  Greene  :!26  (Iowa);  lleim  v. 
Chapman,  171  Mass.  :i47;  Camb.  Sav.  Inst.  v.  Littleiield,  6  Cush.  210;  Jacobs  v. 
Carpenter,  161  Mass.  15;  Stark  7).  Stinson,  2;i  N.  H.  2.'')9;  Lawrence  v.  Harring- 
ton, 122  N.  Y.  408;  Wheeler  v.  Simmons,  60  J  fun  404;  In  re  llazelton,  I  Weekly 
Notes  <jf  Cases  67;  Warren  v.  Bishop,  22  Vt.  607. 

81.  Gruenberg  7a  Trainor,  11  A.  15.  R.  776  (Sup.  Ct.  N.  Y.  App.  Div.);  obiter, 
Jn   re  Sh.'iffer,  4   A.   B.   K.  728,    101    I'ed.  982   (D.  C.   N.   Car). 


§  2722  EFFECT  OF  DISCHARGE.  1607 

§  271S.  New  Promise  Not  Necessarily  in  Writing. — The  new 
promise  need  not  be  in  wriiing.^- 

§  271"^.  But  to  Be  More  than  Mere  Acknowledgment  of  Debt — 
Equivalent  of  Promise  to  Pay  Necessary. — But  it  must  be  more  tlian 
a  luere  acknowledgment  that  there  was  once  such  a  debt  and  that  it  was 
just.     It  must  be  the  equivalent  of  a  promise  to  pay  it. 

Thornton  r.  Xichols  &  Lemon.  11  A.  B.  R.  304  (Sup.  Ct.  Ga.) :  "A  written 
admission  that  the  debt  was  once  due  is  not  sufficient:  the  admission  must  be 
of  a  present  subsisting  liability." 

Obiter.  Mandall  f .  Levy,  14  A.  B.  R.  549  (X.  Y.  Sup.  Ct.  App.) :  "The  simple 
acknowledgment  that  a  debt  is  still  existing  which  is  sufficient  to  remove  the 
bar  of  the  Statute  of  Limitations  is  insufficient  to  revive  a  debt  discharged  in 
bankruptcy."  But  this  rule  is  perhaps  due  to  local  statute  in  the  State  of 
Xew   York. 

§  2720.  And  to  Be  Certain.  Unequivocal  and  Clear. — The  new 
promise  must  be  certain,  imequivocal  and  clear,  and  not  indefinite.*'^ 

Tnferentially,  International  Harvester  Co.  r.  Lyman.  10  A.  B.  R.  450  (Min. 
Sup.  Ct.):  "A  definite  promise  by  a  debtor  is  sufficient  to  revive  the  obligations 
after  a  discharge  in  bankruptcj-;  also — the  form  of  language  employed  is  not 
important  if  the  purpose  to  assume  the  debt  is  clear  and  unequivocal." 

Thus,  it  is  not  stifficient  that  it  be  to  pay  "if  ever  able." 

§  2721.  May  Be  Conditional,  if  Definite. — The  new  promise  may  be 
conditional  :^^  but  the  condition  must  not  be  indefinite,  and  must  be  shown 
lo  have  been  complied  with. 

Smith  r.  Stanchneld,  7  A.  B.  R.  49S  (Sup.  Ct.  Minn.):  "In  this  case 
the  maker  of  a  promissory  note  agreed  to  pay  the  debt  if  the  payee  would 
give  him  time  In  the  absence  of  proof  that  the  offer  was  accepted  and  a 
definite  time  fixed,  such  offer  did  not  justify  a  finding  that  the  debt  had  been 
revived." 

§  2722.  Probably  New  Promise  before  Discharge  Sufficient,  if 
after  Adjudication. — \Miether  it  is  sufiicient  if  made  before  the  granting 
of  the  discharge,  so  long  as  it  is  made  after  the  adjudication,  is  a  question. 
It  has  been  held  in  one  case  to  be  stifficient  if  made  before  discharge,  if 
after  adjudication  ;^5  but  in  anotlier  case  tliat  it  must  be  made  after  dis- 
charge.^'* 

82.  Thornton  r.  Xichols  &  Lemon,  11  A.  B.  R.  304  (Sup.  Ct.  Ga.l;  Smith  r. 
Stanchfield.  7  A.  B.  R.  49S  (Sup.  Ct.  ^[inn.):  Mut.  Res.  Fund  Life  Ass'n  r. 
Beattv.  2  A.  B.  R.  244.  93  Fed.  747  (C.  C.  A.  Calif.);  obiter.  Mandell  &  Co.  f. 
Levy,  14  A.  B.  R.  549  (X'.  Y.  Sup.  Ct.  App.\ 

Except  bA-  statute  in  Xew  York:  Tomplins  :•.  Hazen.  5  A.  B.  R.  62  i^X.  Y.  Ct. 
App.):  Mandell  :■.  Le\-\-.  14  A.  B.  R.  549  (X.  Y.  Sup.  Ct.  App.). 

83.  Obiter.  Mandell  v.  hexy.  14  A.  B.  R.  549  (X.  Y.  Sup.  Ct.  App.). 

84.  Smith  f.  Stanchfield.  7  A.  B.  R.  49S  (Sup.  Ct.  Minn.^. 

85.  Gruenberg  :■.  Trainor.  11  A.  B.  R.  776  (.X.  Y.  Sup.  Ct.  App.  Div.). 

86.  Thornton  :•.  Xichols  &  Lemon,  11  A.  B.  R.  304  (Supreme  Court  Qt  Ga.). 


1608  REMINGTON  ON  BANKRUPTCY.  §  2728 

Probably,  since  the  discharge  reverts  to  the  date  of  adjudication,  it  is 
sufficient  if  made  before  the  discharge,  if  after  the  adjudication. 

§  2723.  Acceptance  of  New  Promise  Requisite. — The  new  promise 
must  be  accepted.-'^ 

§  2724.  Must  Be  Accepted  in  Terms  Offered. — It  must  be  accepted 
in  the  terms  offered ;  and  a  rejection  of  the  terms  offered,  and  insistance 
on  other  terms  will  be  insufficient. 

International  Harvester  Co.  v.  Lyman,  10  A.  B.  R.  450  (]\Iinn.  Sup.  Ct.) : 
"Where,  after  such  discharge,  in  response  to  an  cfifer  bj'  the  debtor  to  pay  the 
original  obligation  in  installments,  the  creditor  expressly  declines  to  assent  to 
the  conditions,  and  insists  upon  payment  of  the  whole  amount,  the  debt  is  not 
revived." 

§  2725.    Conditional  Promise  Accepted  as  Offered,   Sufficient. — 

The  new  promise  may  be  conditional,  and,  if  accepted  as  offered,  it  will 
be  sufficient  to  revive  the  debt,^^  provided  it  be  not  indefinite. 

§  2726.  Action  on  Revived  Debt  to  Be  Brought  on  Original  Con- 
sideration.— The  action  may  be  brought  on  the  original  consideration.^^ 

§  2727.  New  Promise  Not  to  Be  Pleaded  nor  Proved  in  First  In- 
stance.— The  new  promise  need  not  be  pleaded  nor  proved  in  the  first 
instance.^''  To  do  so  would  be  to  anticipate  a  defense.  The  bar  of  the 
discharge  is  merely  matter  of  defense  to  be  pleaded.  If  pleaded,  then 
the  new  promise  is  in  turn  to  be  pleaded,  by  way  of  avoidance. 

§  2728.  Allegations,  in  Pleading  New  Promise. — It  has  been  held 
that  in  pleading  the  new  promise,  it  must  be  alleged  and  proved  that  the 
new  promise  was  made  both  after  the  discharge  was  granted  and  before 
the  suit  on  the  account  was  begun. ^^  But  probably  a  new  promise,  pending 
the  suit,  might  be  pleaded  by  supplemental  pleading.  The  precise  time  of 
the  new  promise  should  be  pleaded. ^^  And  the  words  of  the  new  promise 
should  be  pleaded  in  haec  verbis,  or  in  substance. ^^ 

87.  International  Harvester  Co.  v.  Lyman.  10  A.  B.  R.  450  (Sup.  Ct.  Minn.); 
Smith  z\  Stanchfield,  7  A.  B.  R.  498  (Sup.  Ct.  Minn.). 

88.  Impliedly,  International  Harvester  Co.  v.  Lyman,  10  A.  B.  R.  450  (Sup. 
Ct.  Minn.). 

89.  Gruenberpr  v.  Trainor,  11  A.  B.  R.  776  (N.  Y.  Sup.  Ct.  App.  Div.). 

90.  Gruenberg  v.  Trainor,  11  A.  B.  R.  776  (N.  Y.  Sup.  Ct.  App.  Div.). 

91.  Thornton  v.  Nichols  &  Lemon,  11  A.  B.  R.  304  (Sup.  Ct.  Ga.).  Contra, 
inferentially,  as  to  the  new  promise  being  made  after  the  discharge:  it  is  enough 
that  it  was  made  after  the  adjudication  even  if  before  the  discharge  Gruenberfi- 
V.  Trainor,  11  A.  B.  R.  776  (N.  Y.  Sup.  Ct.  App.  Div.). 

92.  Thornton  v.  Nichols  &  Lemon,  11  A.  B.  R.  304  (Sup.  Ct.  Ga.). 

93.  Thornton  v.  Nichols  &  Lemon,  11  A.  B.  R.  304  (Sup.  Ct.  Ga.). 


4^  2729  effect  of  discharge.  1609 

Division  5. 

AVhat   Obligations   and  Rights    Are   Discharged    and  What   Not 

Discharged. 

§  2729.  Contractual  Relations  Not  Dissolved  by  Discharge,  un- 
less Mergeable  in  "Provable"  Debt. — Contractual  relations,  as  such, 
are  not  dissolved  by  the  bankrupt's  discharge :  they  continue  in  full  force 
except  in  so  far  as  they  may  have  become  merged  in  provable  claims.^-' 

Watson  V.  Merrill,  14  A.  B.  R.  458,  136  Fed.  359  (C.  C.  A.  Kas.) :  "An  ad- 
judication in  bankruptcy  does  not  dissolve  or  terminate  the  contractual  relations 
of  the  bankrupt,  notwithstanding  the  decisions  to  the  contrary  in  In  re  Jefferson 
(D.  C),  2  Am.  B.  R.  206,  93  Fed.  448;  Bray  v.  Cobb  (D.  C),  3  Am.  B.  R. 
788,  100  Fed.  270;  and  In  re  Hays,  Foster  &  Ward  Co.  (D.  C),  9  Am.  B.  R.  144, 
117  Fed.  879.  Its  effect  is  to  transfer  to  the  trustee  all  the  property  of  the  bank- 
rupt except  his  executory  contracts,  and  to  vest  in  the  trustee  the  option  to 
assume  or  to  renounce  these.  It  is  the  assignment  of  the  property  of  the 
bankrupt  to  the  trustee  by  operation  of  law.  It  neither  releases  nor  absolves 
the  debtor  from  any  of  his  contracts  or  obligations,  but,  like  any  other  assign- 
ment of  property  by  an  obligor,  leaves  him  bound  by  his  agreements,  and  sub- 
ject to  the  liabilities  he  has  incurred.  It  is  the  discharge  of  the  bankrupt 
alone,  not  his  adjudication,  that  releases  him  from  liability  for  provable  debts 
in  consideration  of  his  surrender  of  his  property,  and  its  distribution  among  the 
creditors  who  hold  them.  Even  the  discharge  fails  to'  relieve  him  from  claims 
against  him  that  are  not  provable  in  bankruptcy,  and  since  his  obligation  to 
pay  rents  which  are  to  accrue  after  the  filing  of  the  petition  in  bankruptcy  may 
not  be  the  basis  of  a.  provable  claim,  his  liability  for  them  is  neither  released 
nor  affected  by  his  adjudication  in  bankruptcy,  or  by  his  discharge  from  his 
provable  debts.  One  agrees  to  pay  monthly  rents  for  the  place  of  residence  of 
his  family  or  for  his  place  of  business,  or  to  render  personal  services  for 
monthly  compensation  for  a  term  of  years;  he  agrees  to  purchase  or  to  convey 
property;  and  he  then  becomes  insolvent  and  is  adjudicated  a  bankrupt.  His 
obligations  and  liabilities  are  neither  terminated  nor  released  by  the  adjudica- 
tion. He  still  remains  legally  bound  to  pay  the  rents,  to  render  the  services, 
and  to  fulfill  all  his  other  obligations,  notwithstanding  the  fact  that  his  insol- 
vency may  render  him  unable  immediately  to  do  so.  Nor  are  those  who  con- 
tracted with  him  absolved  from  their  obligations.  If  he  or  his  trustee  pays 
the  stipulated  rents  for  his  place  of  residence  or  for  his  place  of  business,  the 
lessors  may  not  deny  to,  the  payor  the  use  of  the  premises  according  to  the 
terms  of  the  lease.-  If  he  renders  the  personal  services,  he  who  contracted  to 
pay  for  them  may  not  deny  his  liability  to  discharge  this  obligation.  His  trustee 
does  not  become  liable  for  his  debts,  but  he  does  acquire  the  right  to  accept 
and  assume  or  to  renounce  the  executory  agreements  of  the  bankrupt,  as  he 
may  deem  most  advantageous  to  the  estate  he  is  administering,  and  the  parties 
to  those  contracts  which  he  assumes  are  still  liable  to  perform  them.  And  so 
throughout  the  entire  field  of  contractual  obligations  the  adjudication  in  bank- 
ruptcy absolves  from  no  agreement,  terminates  no  contract,  and  discharges  no 
liability.  In  re  Curtis  (La.),  9  Am.  B.  R.  286;  In  re  Ells  (D.  C),  3  Am.  B.  R. 
564,  98  Fed.  967,  968;  Witthaus  v.  Zimmerman,  11  Am.  B.  R.  314,  316,  86  N.  Y. 

94.  See  ante,  "Effect  of  Adjudication  on  the  Rights  of  Parties,"  §§  451,  641, 
1118,  2675. 


1610  REMINGTON  ON  BANKRUPTCY.  §  2731 

Supp.  315;  White  v.  Griffing,  44  Conn.  437,  446,  447;   In  re  Pennewell,  9  Am.  B. 
R.  490,  119  Fed.   139,  55  C.   C.  A.  571." 

Obiter,  In  re  Brew.  Co.,  16  A.  B.  R.  114,  143  Fed.  579  (D.  C.  Mo.):  "As  a 
discharge  in  bankruptcy  under  §  1,  cl.  12,  means  no  more  than  'the  release  of 
a  bankrupt  from  all  of  his  debts  which  are  provable  in  bankruptcy,  except  such 
as  are  excepted  by  the  Act,'  and  the  claim  for  damages  for  a  possible  future 
breach  of  a  contract  is  not  a  debt  provable  against  the  estate,  in  the  absence 
of  any  refusal  on  the  part  of  the  bankrupt  to  recognize  the  contract,  and  he 
has  not  voluntarily  or  positively  disabled  himself  from  performing  it,  where  its 
performance  does  not  become  obligatory  until  after  the  adjudication  in  bank- 
ruptcy, my  conclusion  is  that  the  claim  in  question  is  not  one  provable  in  bank- 
ruptcy." 

Such  contractual  obligations  as  are  not  merged  in  provable  debts  are  not 
discharged,  and  are  collectible  out  of  the  bankrupt's  new  estate.^^ 

§  2730.  Relation  of  Landlord  and  Tenant  Not  Severed.— The  rela- 
tion of  landlord  and  tenant  is  not  severed  by  the  discharge. ^"^ 

§  2731.  All  "Provable"  Debts  Discharged,  Save  Those  Excepted: 
if  Not  "Provable,"  Not  Discharged.^ — All  provable  debts,  demands  and 
claims  are  discharged,  except  those  specially  excepted  by  §  17  (A)  of 
the  act ;  and  debts,  demands  and  claims  not  provable,  are  not  discharged. ^^ 

Tindle  v.  Birkett,  15  A.  B.  R.  179,  affirmed  in  18  A.  B.  R.  121,  205  U.  S.  183 
(N.  Y.  Court  of  Appeals) :  "Since  the  debt  upon  which  the  claim  of  the  plain- 
tiffs is  founded  clearly  falls  within  the  category  of  provable  debts  enumerated 
in  §  63a  of  the  Bankruptcy  Act,  it  is  quite  as  clearly  covered  by  the  discharge  in 

95.  Compare,  In  re  ColHgnon,  4  A.  B.  R.  250  (Ref.  N.  Y.) :  The  court  in  thi> 
case  held,  in  effect,  that  rent  to  accrue  on  a  lease  not  expired  at  the  time  of  the 
bankruptcy  cannot  be  liquidated,  and  is,  therefore,  not  a  provable  debt,  nor 
affected  by  the  bankrupt's  discharge.  This  rule  is  not  varied  by  the  fact  that, 
after  the  bankruptcy,  the  landlord,  by  reletting  the  premises,  was  able  to  ascer- 
tain the  probable  deficiency.  Such  reletting  constitutes  a  new  debt  which,  while 
collectible  from  the  after-acquired  property  of  the  bankrupt,  cannot  be  allowed 
against  his  estate  in  the  hands  of  the  trustee. 

96.  In  re  Curtis,  9  A.  B.  R.  286  (Sup.  Ct.  La.);  Witthaus  v.  Zimmerman,  11 
A.  B.  R.  314  (N.  J.  App.);  Watson  v.  Merritt,  14  A.  B.  R.  458,  136  Fed.  359  (C. 
C.  A.  Kas.),  quoted  supra,  §  3729;  contra.  In  re  Jefferson,  3  A.  B.  R.  174,  93  Fed. 
951  (D.  C.  Ky.);  contra.  In  re  Hinckel  Brew.  Co.,  10  A.  B.  R.  484, 103  Fed.  942  (D. 
C.  N.  Y.);  contra,  obiter.  In  re  Pennewell,  9  A.  B.  R.  490,  119  Fed.  139  (C.  C.  A. 
Mich.);  contra,  obiter,  Atkins  v.  Wilcox,  5  A.  B.  R.  317,  105  Fed.  595  (C.  C.  A.). 
See  ante,  "Discussion  as  to  the  Effect  of  Adjudication  in  Bankruptcy  upon  the 
Relation,"  §§  451,  641,  653,  981,  1118,  2675,  2729.  See  interesting  article  in  39 
American  Law  Reg.  (N.  S.)  656:  "Does  the  relation  of  landlord  and  tenant 
become  severed  by  the  operation  of  the  Bankrupt  Law." 

97.  Compare,  subject  of  "Provable  Debts,"  ante,  §  625,  et  seq. 

Bankr.  Act,  §  17  (a) :  "A  discharge  in  bankruptcy  shall  release  a  bankrupt 
from  all  of  his  provable  debts,  except     *     *     *." 

Bankr.  Act,  §  1  (11):  "'Debts'  shall  include  any  debt,  demand  or  claim 
provable  in  bankruptcy." 

Bankr.  Act,  §  63  (a):  "Debts  of  the  bankrupt  may  be  proved  and  allowed 
against  his  estate  which  are,  etc.,     *     *     *." 

Tindle  v.  Birkett,  18  A.  B.  R.  179  (affirmed  in  18  A.  B.  R.  121,  205  U.  S.  185,  N. 
Y.  Court  of  Appeals);  obiter.  In  re  Pettingill  &  Co.,  14  A.  B.  R.  732,  137  Fed. 
840  (D.  C.  Mass.);  Arrington  v.  Arrington,  13  A.  B.  R.  89,  132  Fed.  200  (D.  C. 
N.  Car.);  In  re  Burka,  5  A.  B.  R.  12,  104  Fed.  326  (D.  C.  Mo.);  In  re  Marcus, 
5  A.  B.  R.  365,  105  Fed.  907  (C.  C.  A.  Mass.). 


§    2731  EFFECT  OF  DISCHARGE.  1611 

bankruptcy  unless  the  fact  that  the  debt  originated  in  fraud  excludes  it  from 
the  operation  of  the  discharge." 

Burnham  v.  Pidcock,  5  A.  B.  R.  45  (affirmed  in-5  A.  B.  R.  590,  68  N.  Y.  Supp. 
1007) :  "In  short,  unless  the  right  of  action,  whatever  it  be,  falls  within  one 
of  the  exceptions  specified  in  the  act,  it  is,  after  liquidation  by  judgment,  barred 
by  the  discharge  under  said  act." 

Crawford  v.  Burke,  12  A.  B.  R.  666,  195  U.  S.  176:  "If  plaintiff's  claim  was 
not  a  provable  debt,  or  was  expressly  excepted  from  the  operation  of  the  dis- 
charge, the  decision  of  that  court  was  right,  but  if  it  was  covered  by  the  dis- 
charge such  discharge  was  a  complete  defense." 

In  re  United  Button  Co.,  15  A.  B.  R.  399,  140  Fed.  495  (D.  C.  Del.,  affirmed 
sub  nom.  Brown  &  Adams  v.  Button  Co.,  17  A.  B.  R.  565):  "It  is  an  elementary 
proposition  that  a  discharge  in  bankruptcy  is  no  bar  to  the  enforcement  of  de- 
mands against  a  bankrupt  not  provable  under  the  Act.  To  undertake  to  except 
such  demands  from  the  operation  of  a  discharge  is  an  absurdity." 

Obiter,  In  re  Gerson,  6  A.  B.  R.  11,  105  Fed.  891  (C.  C.  A.  Penn.) :  "Of 
course,  if  not  provable,  such  liabilities  are  not  discharged." 

Thus,  judgments  for  penal  fines  are  not  provable  nor  dischargeable  ;^s 
nor  are  judgments  that  are  in  the  nature  of  police  regulations,  such  as 
those  for  the  support  of  a  bastard  child. ^^  Nor  are  contracts  of  the  same 
nature  discharged. 

Dunbar  v.  Dunbar,  10  A.  B.  R.  151,  190  U.  S.  340:  "In  relation  to  that  part 
of  the  husband's  contract  to  pay  for  the  support  of  his  minor  children  until 
they  respectively  became  of  age,  we  also  think  that  it  was  not  of  a  nature  to 
be  proved  in  bankruptcy.  At  common  law,  a  father  is  bound  to  support  his 
legitimate  children,  and  the  obligation  continues  during  their  minority.  We 
may  assume  this  obligation  to  exist  in  all  the  States.  In  this  case  the  decree 
of  the  court  provided  that  the  children  should  remain  in  the  custody  of  the 
wife,  and  the  contracts  to  contribute  a  certain  sum  yearly  for  the  support  of 
each  child  during  his  minority  was  simply  a.  contract  to  do  that  which  the  law 
obliged  him  to  do;  that  is,  to  support  his  minor  children.  The  contract  was  a 
recognition  of  such  liability  on  his  part.  We  think  it  was  not  the  intention  of 
Congress,  in  passing  a  Bankruptcy  Act,  to  provide  for  the  release  of  the  father 
from  his  obligation  to  support  his  children  by  his  discharge  in  bankruptcy,  and 
if  not,  then  we  see  no  reason  why  his  contract  to  do  that  which  the  law  obliged 
him  to  do  should  be  discharged  in  that  way.  As  his  discharge  would  not  in 
any  event  terminate  his  obligation  to  support  his  children  during  their  minority, 
we  see  no  reason  why  his  written  contract  acknowledging  such  obligation  and 
agreeing  to  pay  a  certain  sum  (which  may  be  presumed  to  have  been  a  reason- 
able one)  in  fulfillment  thereof  should  be  so  discharged.  It  is  true  his  promise 
is  to  pay  to  the  mother,  but  on  this  branch  of  the  contract  it  is  for  the  purpose 
of  supporting  his  two  minor  children,  and  he  simply  makes  her  his  agent  for 
that  purpose." 

Nor  are  judgments  that  are  in  the  nature  of  poHce  regulations,  such  as 
those  for  the  support  of  a  wife,  discharged. ^°*^ 

98.  In  re  Moore.  6  A.  B.  R.  590,  111  Fed.  145  (D.  C.  Ky.).  Contra,  In  re 
Alderson,  3  A.  B.  R.  544,  98  Fed.  583  (D.  C.  W.  Va.). 

99.  In  re  Baker,  3  A.  B.  R.  101,  96  Fed.  954  (D.  C.  Kas.) ;  McKittrick  v. 
Cahoon,  95  N.  W.  223   (Minn.). 

100.  Compare,  Dunbar  v.  Dunbar,  10  A.  B.  R.  144,  190  U.  S.  340;  Lynde  v. 
Lynde,  181  U.  S.  183;  Welty  v.  Welty,  63  N.  E.  161  (Ills.);  BarcUy  v.  Barclay, 
184  Ills.  375. 


1612  REMINGTON    ON    BANKRUPTCY.  §    2732 

Audubon  v.  Shpfelclt,  5  A.  B.  R.  832,  181  U.  S.  575:  "The  Bankrupt  Act 
of  1898  provides,  in  §  1,  that  a  'discharge'  means  'the  release  of  a  bankrupt 
from  all  his  debts  which  are-  provable  in  bankruptcy,  except  such  as  are  ex- 
cepted by  this  act;'  and  includes,  in  §  63,  arnong  the  debts  which  may  be  proved 
against  his  estate,  'a  fixed  liability,  as  evidenced  by  a  judgment  or  an  instru- 
ment in  writing,  absolutely  owing,'  at  the  time  of  the  petition  in  bankruptcy, 
whether  then  payable  or  not,  and  debts  'founded  upon  a  contract,  express  or 
implied.'     30  Stat.  541,  563. 

"Alimony  does  not  arise  from  any  business  transaction,  but  from  the  rela- 
tion of  marriage.  It  is  not  founded  on  contract,  express  or  implied,  but  on 
the  natural  and  legal  duty  of  the  husband  to  support  the  wife.  The  general 
obligation  to  support  is  made  specific  by  the  decree  of  the  court  of  appropriate 
jurisdiction.  Generally  speaking;  alimony  may  be  altered  by  that  court  at  any 
time,  as  the  circumstances  of  the  parties  may  require.  The  decree  of  a  court 
of  one  State,  indeed,  for  the  present  payment  of  a  definite  sum  of  money  as 
alimony,  is  a  record  which  is  entitled  to  full  faith  and  credit  in  another  State, 
and  may  therefore  be  there  enforced  by  suit.  Barber  v.  Barber  (1858),  21 
How.  582;  Lynde  v.  Lynde  (1901),  181  U.  S.  183.  But  its  obligation  in  that 
respect  does  not  afifect  its  nature.  In  other  respects,  alimony  cannot  ordinarily 
be  enforced  by  an  action  at  law,  but  only  by  application  to  the  court  which 
granted  it,  and  subject  to  the  discretion  of  that  court.  Permanent  alimony 
is  regarded  rather  as  a  portion  of  the  husband's  estate  to  which  the  wife  is 
equitably  entit'ed,  than  as  strictly  a  debt;  alimony  from  time  to  time  may  be 
regarded  as  a  portion  of  his  current  income  or  earnings;  and  the  considerations 
which  afifect  either  can  be  better  weighed  by  the  court  having  jurisdiction  over 
the  relation  of  husband  and  wife,  than  by  a  court  of  a  different  jurisdic- 
tion.   *    *    * 

"The  result  "s  that  neither  the  alimony  in  arrear  at  the  time  of  the  adjudica- 
tion in  bankruptcy,  nor  alimony  occuring  since  that  adjudication,  was  provable 
in  bankruptC3^  or  barred  by  the  discharge." 

Debts  not  comprehended  within  §  63,  which  enumerates  the  debts  that 
are  provable,  are  not  discharged. ^'^^ 

§  2732.  If  Capable  of  Being  "Proved,"  Debt  Discharged  Whether 
Actually  Proved  or  Not. — If  the  debt  be  "provable"'  or  capable  of  being 
proved,  it  is  discharged  whether  actually  "proved"  or  not.^o^ 

Tindle  v.  Birkett,  18  A.  B.  R.  121,  205  U.  S.  183  (affirming  15  A.  B.  R.  179): 
"This  court  held  that  plaintiff's  claim  was  'provable  under  the  Bankruptcy 
Act,'  that  is,  was  'susceptible  of  being  proved,'  and  that  it  might  have  been  proved 
under  §  63a  as  'founded  upon  an  open  account  or  upon  a  contract  express  or 
implied,'  if  plaintiff  had  chosen  to  waive  the  tort  and  take  his  place  with  the 
other  crediton;  of  the  estate." 

Inferentially.  Crawford  v.  Burke,  12  A.  B.  R.  659,  195  U.  S.  176:  "Under 
this  section  whether  the  discharge  of  the  defendants  in  bankruptcy  shall  operate 
as  a  discharge  of  plaintiff's  debt,  it  not  having  been  reduced  to  judgment,  de- 
pends upon  the  fact  whether  that  debt  was  'provable'  under  the  Bankruptcy 
Act,  that  is,  susceptible  of  being  proved." 

101.  Brown  &  Adams  v.  Button  Co.,  17  A.  B.  R.  565.  149  Fed.  48  (C.  C.  A. 
Del.,  affirming  In  re  United  Button  Co.,  15  A.  B.  R.  399,  140  Fed.  495  (D.  C. 
Del.). 

102.  Wood  V.  Carr,  10  A.  B.  R.  577  (Ky.  Ct.  Appeals). 


§    2736  EFFECT  OF  DISCHARGE.  1613 

§  -2733.  Tort  Claims  Discharged,  if  Tort  Might  Be  Waived  and 
Claim  Be  Presented  ex  Contractu. — Thus,  tort  claims  are  discharged, 
if  they  are  of  such  nature  that  the  tort  may  be  waived  and  the  claim 
presented  in  contract.^'^^  But  even  though  the  tort  be  a  waivable  tort,  and 
the  tort  actually  be  waived,  yet  if  the  liability  is  one  declared  to  be  ex- 
cepted from  the  operation  of  discharge,  it  will  not  be  discharged  because 
of  actual  waiver  or  waivability  of  the  tort.^^^  Even  where  the  contract 
actually  has  been  waived  and  suit  brought  in  tort,  a  discharge  pending  the 
suit  is  a  good  bar,  for  although  his  debt  be  not  yet  reduced  to  a  judgment 
for  fraud  and  dischargeable  as  a  judgment,  it  is  yet  a  provable  debt,  for 
it  is  capable  of  being  presented  ex  contractu. ^"^^ 

§  2734.  Also  Unliquidated  Claims,  if  Capable  on  Liquidation  of 
Being  Presented  ex  Contractu. — Unliquidated  claims  that  might  have 
been  liquidated  but  were  not  liquidated,  are  nevertheless  discharged,  if 
they  were  capable  of  being  presented  in  form  ex  contractu. ^'^'^ 

§  2735.  Only  Debts  Existing  at  Date  of  Filing  Petition,  Dis- 
charged.— Only  debts  existing  at  the  date  of  the  filing  of  the  bankruptcy 
petition  are  discharged. ^^" 

Thus,  it  has  been  held,  that  attorney's  fees  incurred  after  the  filing  of 
the  petition  and  before  the  adjudication,  not  being  for  services  relating 
to  the  bankruptcy,  are  not  provable  claims  and  therefore  are  not  dis- 
charged.i*^^  Likewise,  a  judgment  for  costs  obtained  after  adjudication  is 
not  dischargeable.  1'^'' 

§  2736.  Contingent  Claims  Not  Provable,  Not  Discharged. — Con- 
tingent claims  that  are  not  provable,  are  not  released  by  the  discharge. 

Thus,  a  contract  of  annuity  for  the  support  of  a  divorced  wife  as  long 
as  she  lives  and  does  not  remarry,  is  not  released. 

Dunbar  v.  Dunbar,  10  A.  B.  R.  145,  190  U.  S.  340:  "Conceding  that  the  Bank- 
ruptcy Act  provides  for  discharging  some  classes  of  contingent  demands  or 
claims,  this  is  not,  in  our  opinion,  such  a  demand.  Even  though  it  may  be 
that  an  annuity  dependent  upon  life  is  a  contingent  demand  within  the  meaning 
of  the  Bankruptcy  Act  of  1898,  yet  this  contract,  so  far  as  regards  the  support 
of  the  wife,  is  not  dependent  upon -life  alone,  but' is  to  cease  in  case  the  wife 
remarries.     Such  a  contingency  is  not  one  which,  in  our  opinion,  is  within  the 

103.  Tindle  v.  Birkett,  18  A.  B.  R.  121,  205  U.  S.  185  (affirming  15  A.  B.  R. 
179);  Crawford  r.  Burke,  12  A.  B.  R.  659,  195  U.  S.  176;  Mackel  v.  Rochester,  14 
A.  B.  R.  429,  135  Fed.  904  (D.  C.  Mont.). 

104.  Mackel  v.  Rochester,  14  A.  B.  R.  429,  434,  135  Fed.  904   (D.  C.  Mont.). 

105.  Crawford  v.  Burke,  12  A.  B.  R.  659,  195  U.  S.  176;  Mackel  z'.  Rochester, 
14  A.  B.  R.  429,  135  Fed.  904  (D.  C.  Mont.). 

106.  In  re  Hilton,  4  A.  B.  R.  774,  104  Fed.  981   (D.  C.  N.  Y.). 

107.  In  re  Burka,  5  A.  B.  R.  12,  104  Fed.  326  (D.  C.  Mo.). 

108.  In  re  Burka,  5  A.  B.  R.  12,  104  Fed.  326   (D.  C.  Mo.). 

109.  In  re  :\Iarcus,  5  A.  B.  R.  365  ^C.  C.  A.  Mass.,  affirming  5  A.  B.  R.  19,  104 
Fed.  331).     But  compare,  Aiken  v.  Haskins,  6  A.  B.  R.  46   (N.  Y.  Sup.  Ct.). 


1614  REMINGTON    ON    BANKRUPTCY.  ^    2739 

purview  of  tho  act,  because  of  the  innate  difficulty,  if  not  impossibility,  of  esti- 
mating or  valuing  the  particular  contingency  of  widowhood.  A  simple  annuity 
which  is  to  terminate  upon  the  death  of  a  particular  person  may  be  valued  by 
reference  to  the  mortality  tables.  Mr.  Justice  Bradley,  in  Riggin  v.  Magwire, 
15  Wall.  549,  speaking  for  the  court,  said  that  so  long  as  it  remained  uncertain 
whether  a  contract  or  engagement  would  ever  give  rise  to  an  actual  duty  or 
liability,  and  there  was  no  means  of  removing  the  uncertainty  by  calculation, 
such  contract  or  engagement  was  not  provable  under  the  Bankruptcy  Act  of 
1841.  The  fifth  section  of  that  act  gave  the  right  to  prove  'uncertain  and  con- 
tingent demands,'  but  it  was  held  that  a  contract  such  as  above  described  was 
not  within  that  section. 

"It  was  remarked  by  the  justice  in  that  case  that  if  the  contract-  had  come 
within  the  category  of  annuities  and  debts  payable  in  future,  which  are  absolute 
and  existing  claims,  that  the  value  of  the  wife's  probability  of  survivorship 
after  death  of  her  husband  might  have  been  calculated  on  the  principles  of  life 
annuties. 

"But  how  can  any  calculation  be  made  in  regard  to  the  continuance  of  widow- 
hood when  there  are  no  tables  and  no  statistics  bj^  which  to  calculate  such  con- 
tingency? How  can  a  valuation  of  a  provable  continuance  of  widowhood  be 
made?  Who  can  say  what  the  probability  of  remarrying  is  in  regard  to  any 
particular  widow?  We  know  what  some  of  the  factors  might  be  in  the  ques- 
tion; inclination,  age,  health,  property,  attractiveness,  children.  These  would 
at  least  enter  into  the  question  as  to  the  probability  of  continuance  of  widow- 
hood, and  yet  there  are  no  statistics  which  can  be  gathered  which  would  tend 
in  the  sHghtest  degree  to  aid  in  the  solving  of  the  question." 

§  2737.  Costs  Incurred  Prior  to  Petition  Dischargeable. — Costs  of 
a  creditor  incurred  prior  to  the  fiHng  of  the  bankruptcy  petition  are  prov- 
able debts  against  the  bankrupt  and  are  therefore  discharged,  provided  the 
cause  of  action  sued  on  was  a  provable  debt.  And  this  is  so,  whether 
a  judgment  was  rendered  or  not,  and  whether  the  judgment  rendered  was 
rendered  before  or  after  the  filing  of  the  petition. ^^^ 

§  2738.  Incurred  after,  Not  Discharged. — Costs  of  a  creditor  in- 
curred after  the  filing  of  a  petition  in  bankruptcy  against  the  debtor,  which 
ripen  into  rights  against  the  bankrupt,  are  not  provable  debts  and  are  not 
discharged,  but  the  bankrupt  remains  liable  for  them.^^^ 

§  2739.  Judgment  for  Breach  of  Pro-mise  of  Marriage  Discharged. 

— Judgments  for  breach  of  promise  to  marry  are  discharged  ;^^-  but  not, 
when  the  breach  of  promise  was  accompanied  with  seduction. ^^^ 

110.  Aiken,  Lambert  &  Co.  v.  Haskins,  6  A.  B.  R.  46  (N.  Y.  Sup,  Ot.).  But 
compare,  as  to  judgments  for  costs.  In  re  Marcus,  5  A.  B.  R.  365,  104  Fed.  331 
(C.  C.  A.  Mass.). 

111.  Lambert  &  Co.  v.  Haskins,  6  A.  B.  R.  46  (N.  Y.  Sup.  Ct.). 

112.  Finnegan  v.  Hall,  6  A.  B.  R.  645,  35  Misc.  773,  72  N.  Y.  Supp.  347;  In  re 
McCauley,  4  A.  B.  R.  122,  101  Fed.  223  (D.  C.  N.  Y.);  Bond  z:  Millikin,  17  A.  B. 
R.  811,  109  N.  W.  774  (Iowa). 

113.  Distler  r.  :\IcCauley.  6  A.  B.  R.  491  (Sup.  Ct.  X.  Y.) ;  obiter,  Bond  v. 
Millikin,  17  A.  B.  R.  811,  109  N.  W.  774  (Iowa). 


§  2741  EFFECT  OF  DISCHARGE.  1615 

§  2740.  Judgments  for  Torts  Discharged,  Though  Liability  on 
Which  Founded,  Not. — Thus,  since  judgments  are  provable,  judgments 
for  torts,  where  the  tort  itself  is  not  provable  because  not  capable  of  being 
presented  in  form  ex  contractu,  are  nevertheless  discharged. 

Burnham  z'.  Pidcock,  5  A.  B.  R.  45  (affirmed  in  5  A.  B.  R.  590,  168  N.  Y. 
Supp.  1007):  "It  was  held,  under  the  Bankruptcy  Law  of  1841,  that  a  judgment 
obtained  in  an  action  of  tort  was  a  debt  dischargeable  under  and  by  force  of 
the  bankruptcy  law.  In  re  Book,  3  McLean  317,  Fed.  Cas.  No.  1,  637.  And  see 
Comstock  V.  Grout,  17  Vt.  512;  Vrouch  v.  Gridley,  6  Hill  259.  And  under  the 
Act  of  1867,  it  was  held,  that  a  judgment  for  assault  and  battery  was  a  debt 
dischargeable  .'n  bankruptcy.  Manning  v.  Keyes,  9  R.  I.  224.  In  short,  unless 
the  right  of  action,  whatever  it  be,  falls  within  one  of  the  exceptions  specified 
in  the  act,  it  's,  after  liquidation  by  judgment,  barred  by  the  discharge  under 
said  act." 

§  2741.  Claims  of  Sureties  and  Endorsers  against  Bankrupt  Prin- 
cipal Discharged. — Thus,  claims  of  sureties  on  the  bankrupt's  obliga- 
tions are  discharged,  although  the  sureties  have  paid  nothing  thereon  until 
after  the  bankruptcy  has  occurred. ^^^ 

Likewise,  the  bankrupt  maker's  liability  to  the  payee  who  has  been 
obliged  to  pay  the  holder  after  the  maker's  adjudication  as  a  bankrupt  but 
before  his  discharge,  is  itself  discharged. ^^^ 

And  in  general  contracts #of  endorsement  are  discharged,  before  the 
liability  thereunder  has  become  enforceable  by  action  through  default  of 
the  maker.ii*^ 

114.  Sureties  rights,  perhaps,  partake  of  the  nature  of  the  original  obligation 
as  to  dischargeability.  Inferentially,  In  re  Colacula,  13  A.  B.  R.  292,  133  Fed. 
255  (D.  C.  Mass.);  inferentially,  In  re  Blumberg,  1  A.  B.  R.  633,  133  Fed.  845 
(D.  C.  Tenn.). 

Hayer  v.  Comstock,  7  A.  B.  R.  493  (Sup.  Ct.  Iowa);  compare.  In  re  New,  8 
A.  B.  R.  566,  116  Fed.  116  (D.  C.  Ohio) ;  compare,  Swarts  v.  Fourth  Nat'l  Bk., 
8  A.  B.  R.  673,  117  Fed.  1  (C.  C.  A.  Mo.);  contra,  inferentially,  Phillips  v.  Dreher 
Shoe  Co.,  7  A.  B.  R.  326,  112  Fed.  404  (D.  C.  Penn.).»  See  "Provable  Debts," 
ante,  §§  642,  644. 

115.  In  re  Smith  v.  Wheeler,  5  A.  B.  R.  46  (N.  Y.  Sup.  Ct.  App.  Div.).  Under 
act  of  1841,  Mace  v.  Wells,  7  How.  272.  Under  act  of  1867.  Hunt  v.  Taylor,  108 
Mass.  508. 

116.  Obiter,  In  re  Gerson,  6  A.  B.  R.  11,  107  Fed.  897  (C.  C.  A.  Penn.,  affirming 
5  A.  B.  R.  89)  :  This  decision  qualified  the  rule  by  limiting  it  by  the  proviso  that 
it  become  such  within  the  year  limited  for  proving  claims  after  adjudication. 
But  it  would  seem  that  the  dischargeability  should  not  be  made  dependent  upon 
the  liability  becoming  fixed  and  absolute  within  the  year,  thus  making  its  dis- 
chargeability or  nondischargeability  dependent  on  an  immaterial  contingency. 
It  is  doubtful  whether  this  decision  states  the  correct  rule.  Only  provable 
debts  are  discharged,  and  only  those  debts  that  were  owing  at  the  time  of  the 
filing  of  the  petition  are  provable.  Otherwise,  where  is  the  limitation?  If  debts 
that  do  not  become  absolutely  owing  until  after  the  filing  of  the  petition  are 
provable  when  they  do  so  become,  then  many  incongruities  and  peculiar  situa- 
tions arise.  Suppose  one  dividend  has  been  declared  and  paid  before  the  claim 
becomes  "absolutely  owing,"  will  the  claim  be  entitled  to  a  second  dividend — 
like  belated  claims  in  general?  Suppose  all  the  dividends  have  been  paid  out 
before  the  claim  becomes  "absolutely  owing,"  is  it  to  receive  no  dividend?  Is 
there  any  reason  why  a  claim  becoming  "absolutely  owing"  364  days  after  the 
adjudication  should  be  provable  and  be  discharged  whilst  one  becoming  so  366 
days  afterward  would  not  be  discharged? 

See  ante,  §§  642,  644. 


1616  REMIXGTOX  ON  BANKRUPTCY.  §  2747 

§  2742.  Stockholder's  Liability  Dischargeable,  if  Fixed. — Stock- 
liolder's  liability  for  debts  of  the  corporation  is  discharged  by  the  stock- 
holder's own  bankruptcy,  if  the  facts  essential  to  the  'maintenance  of  a 
stockholders'  liability  suit  have  already  occurred  ;^i'  but  it  is  not  dis- 
charged by  the  corporation's  discharge. ^^^ 

.SUBDIVISION    "a." 

pROVABi.1;  Debts  Excepted  by  Statute  from  the  Operation  of  Dis- 
charge. 

§  2743.  Debts  Excepted  from  Discharge. ^Certain  debts  that  are 
provable  are  nevertheless  excepted  from  the  operation  of  the  discharge 
decree.^i^ 

§  2744.  Because  Excepted,  Not  on  That  Account  Entitled  to 
Priority  before  Dividends. — Provable  claims  excepted  from  discharge 
are  not  on  that  account  entitled  to  priority  of  payment  out  of  dividends. ^^o 

§  2745.  First  Exception — Taxes  Not  Discharged. — Taxes  levied  by 
the  United  States,  the  State,  County,  district  or  municipality  in  which  the 
bankrupt  resides,  are  not  discharged. ^-^ 

There  has  been  somewhat  of  a  discussion  as"  to  whether  a  tax  is  a  "debt" 
within  the  meaning  of  the  Act.  It  is  certainly  a  "demand"  and  therefore 
comes  within  the  bankruptcy  definition  of  a  "debt."^-- 

§  2746.  Second  Exception — "Liabilities  for  Obtaining  Property 
by  False  Pretenses  or  False  Representations, "  Not  Discharged. — 

Liabilities   for  obtaining  property  by   false  pretenses  or   false  representa- 
tions, are  excepted  from  the  operation  of  discharge. 

This  exception  was  .added  by  the  amendment  of  1903,  and  took  the 
place  of  the  former  provision  that  read :  "Judgments  for  fraud  or  for 
obtaining  property  by  false  pretenses  or  false  representation." 

§  2747.  Not  All  Frauds  Excepted,  but  Only  "Obtaining  Property 
by  False  Pretenses,"  etc. — Not  all  classes  of  fraud  come  under  this 
section  (although  other  frauds  are  excepted  by  a  later  provision  if  com- 
mitted as  an  officer  or  in  a  fiduciary  capacity)  but  only  such  frauds  as  are 
embraced  within  the  term  "obtaining  property  by  false  pretenses  or  false 
representations."     The  term   is  more  restricted   in  respect  to  the  classes 

117.  Dight  V.  Chapman,  12  A.  B.  R.  743  (Sup.  Ct.  Ore.);  inferentially,  In  re 
Rouse,  1  A.  B.  R.  231,  91  Fed.  514  (Ref.  Ohio). 

118.  Elsbree  z:  Burt.  9  A.  B.  R.  87  (R. 'l.  Sup.  Ct.). 

119.  Bankr.  Act,  §  17  (a). 

120.  Claflin  Dry  Goods  Co.  v.  Eason,  2  A.  B.  R.  263  (Ref.  Tex.). 

121.  Bankr.  Act,  §  17  (a). 

122.  Bankr.  Act,  §  1  (11).     See  ante,  §  2160. 


§  2748  EFFECT  OF  DISCHARGE.  1617 

of  fraud  embraced  within  its  exceptions  than  was  the  law  before  the 
amendment  of  1903,  ahhongh  broader  in  the  other  respect  that  judgment 
is  not  a  prerequisite. ^-^ 

Mackel  v.  Rochester,  14  A.  B.  R.  431,  135  Fed.  904  (D.  C.  Mont.):  "The 
Amendment  of  1903  to  §  17  changed  the  nature  of  the  debts  included  within  the 
exceptions.  *  *  *  The  difference,  proper  to  be  noticed  in  the  present  case,  be- 
tween the  law  as  it  stood  prior  to  1903  and  as  it  is  at  present,  rests  in  this: 
Before  the  amendment  of  1903,  the  bankrupt  was  released  from  all  provable 
debts  except  claims  in  actions  for  fraud  or  for  obtaining  property  by  false 
pretenses  or  false  representations,  which  had  been  reduced  to  judgment,  while 
now  the  exception  includes  liabilities  for  obtaining  property  under  false  pre- 
tenses or  false  representations;  that  is  to  say,  before  the  present  statute,  a 
bankrupt  mighl  have  been  released  unless  a  provable  debt  for  fraud,  as  specified 
in  subdivision  2,  was  in  judgment,  while  now  he  will  not  be  released  if  the 
claim  is  mereK-  upon  a  liability  for  fraud  in  obtaining  property  by  false  pre- 
tenses or  false  representations,  whether  or  not  such  liability  is  reduced  to 
judgment." 

§  2748.  Judgment  Not  Requisite. — The  right  of  action  need  not  be 
reduced  to  judgment.  Mere  "liabilities"  for  obtaining  property  by  false 
pretenses  or  false  representations  are  excepted. ^^^ 

123.  Before  1903  Judgments  for  Any  Kind  of  Fraud  Excepted. — Before  the 
amendment  of  1903,  a  judgment  for  any  fraud,  as  well  for  other  frauds  as  for 
that  of  obtaining  property  by  false  pretenses  or  false  representations,  was  ex- 
cepted from  the  operation  of  the  discharge  decree.  In  re  Bullis,  7  A.  B.  R.  238 
(Sup.  Ct.  N.  Y.  App.  Div.,  affirmed  by  U.  S.  Sup.  Ct.  in  Bullis  z'.  O'Beirne,  13  A. 
B.   R.  108,  195  U.  S.  606). 

But  the  fraud  must  have  been  actual  fraud  as  distinguished  from  constructive 
fraud.  Bullis  f.  O'Beirne.  13  A.  B.  R.  108,  195  U.  S.  606;  Burnham  v.  Pidcock,  5 
A.  B.  R.  42  (N.  Y.  Sup.  Ct.,  affirmed  in  5  A.  B.  R.  590);  Forsyth  v.  Wehmeyer, 
3  A.  B.  R.  807,  177  U.  S.  177;  Mackel  v.  Rochester,  14  A.  B.  R.  429,  135  Fed.  904 
(D.  C.  Mont.);  Western  Union  Cold  Storage  Co.  v.  Hurd,  8  A.  B.  R.  633,  116 
Fed.  442  (D.  C.  Mo.). 

124.  Mackel  v.  Rochester,  14  A.  B.  R.  429,  135  Fed.  904  (D.  C.  Mont.)      §  2747. 
Before   1903    Must   Have   Been   Reduced  to   Judgment,   Else   Barred. — Before 

the  amendment  of  1903,  the  cause  of  action  for  fraud  must  have  been  reduced  to 
judgment,  else  it  was  barred. 

Crawford  v.  Burke,  12  A.  B.  R.  668,  195  U.  S.  176:  "The  fact  that  the  second 
subdivision  of  §  17  excepted  from  the  discharge  'all  judgments  in  actions  for 
frauds,  or  of  obtaining  property  by  false  pretenses,  or  false  representations,'  in- 
dicates quite  clearly  that  as  to  frauds  in  general  it  was  the  intention  of  Con- 
gress only  to  except  from  discharge  such  as  had  been  reduced  to  judgment, 
unless  they  fall  within  the  fourth  subdivision,  of  those  created  by  the  fraud, 
embezzlement,  misappropriation,  or  defalcation  of  the  bankrupt  while  acting  as 
an  officer  or  in  a  fiduciary  capacity." 

In  re  Lewensohn,  3  A.  B.  R.  594,  98  Fed.  576  (D.  C.  N.  Y.)  ;  Tindle  v.  Birkett, 
15  A.  B.  R.  179  (N.  Y.  App.  Ct.) ;  In  re  Bullis,  7.A.  B.  R.  238  (N.  Y.  Sup.  Ct. 
App.  Div„  171  N.  Y.  689,  affirmed  in  Bullis  v.  O'Beirne,  13  A.  B.  R.  108,  195 
U.  S.  606) ;  Morse  &  Rogers  v.  Kaufman,  7  A.  B.  R.  549,  4  Va.  Sup.  Ct.  Reporter 
172;  Smith  &  Wallace  Co.  v.  Lambert,  11  A.  B.  R.  252  (N.  J.  Sup.  Ct.) ;  compare, 
obiter.  In  re  Thomas,  1  A.  B.  R.  515,  103  Fed.  273  (D.  C.  Iowa);  obiter,  Brown 
&  Adams  v.  Button  Co.,  17  A.  B.  R.  569,  149  Fed.  48  (C.  C. '  A.  Del.);  In  re 
Rhutassel,  2  A.  B.  R.  697,  96  Fed.  597  (D.  C.  Iowa);  obiter,  Howe  v.  Noyes,  15 
A.  B.  R.  103  (N.  Y.  Sup.  Ct.  App.);  contra.  In  re  Wollock,  9  A.  B.  R.  685,  120 
Fed.  516  (D.  C.  Ills.);  contra,  In  re  Cole,  5  A.  B.  R.  780  (D.  C.  X.  Y.). 

And  whether  the  judgment  were  a  judgment  for  fraud,  obtaining  property  by 

2  Rem  B— 27 


1618  REMINGTON    ON    BANKRUPTCY.  §  2750 

§  2749.  Judgment  Not  Such  Merger, as  Prevents  Inquiry  into 
Original  Liability.— Judgment  does  not  so  far  work  a  merger  that  the 
original  character  of  the  liabiHty  cannot  be  inquired  into.^-^ 

§  2750.  Not  Even  Though  Tort  Waived  and  Judgment  on  Quasi 
Contract. — Nor  does  the  form  of  the  action — as,  where  the  tort  is  waived 
— prevent  incjuiry  into  the  original  character  of  the  liability. ^^g  g^^^  [^  ^p_ 
pears,  laches  in  asserting  the  fraudulent  origin  of  the  debt  may  be  con- 
sidered in  determining  the  nature  of  it.^-" 

false  pretenses  or  false  representations,  or  not,  must  have  been  gathered  from 
the  record  itself. 

Burnham  v.  Pidcock,  5  A.  B.  R.  590  (N.  Y.  Sup.  Ct.  App.  Div.,  affirming  5  A. 
B.  R.  42;  also,  In  re  Rhutassel,  2  A.  B.  R.  697,  96  Fed.  .597  (D.  C.  Iowa). 

Barnes  Mfg.  Co.  v.  Norden,  7  A.  B.  R.  553  (Sup.  Ct.  N.  J.):  "Judgment  re- 
covered on  the  common  money  counts  is  not  excepted-  from  the  operation  of  a 
discharge  in  bankruptcy  as  a  judgment  in  an  action  for  fraud." 

Smith  &  Wallace  v.  Lambert,  11  A.  B.  R.  252  (Sup.  Ct.  N.  J.);  In  re  Arkell, 
6  A.  B.  R.  650  (N.  Y.  Sup.  Ct.  App.);  Hargardine-McKittrick  v.  Hudson,  6  A. 
B.  R.  657  (D.  C.  Mo.,  affirmed  in  10  A.  B.  R.  225,  122  Fed.  232,  C.  C.  A.). 

But  the  judgment  need  not  have  expressly  read  that  it  was  rendered  on  those 
grounds;  the  fact  might  be  ascertained  from  an  inspection  of  the  entire  record. 

In  re  Bullis,  7  A.  B.  R.  238  (N.  Y.  Sup.  Ct.  App.  Div.),  affirmed  in  Bullis  v. 
O'Beirne,  13  A.  B.  R.  108,  195  U.  S.  606.  Compare,  to  same  effect  under  law 
of  1867,  Packer  v.  Whittier,  1  A.   B.  R.  621   (C.   C.  A.   Mass.). 

And  the  recitals  of  its  character  contained  in  the  judgment  record  were  not 
conclusive  on  the  federal  court. 

Analogousb^  Knott  v.  Putnam,  -6  A.  B.  R.  80,  107  Fed.  907  (D.  C.  Vt.): 
Where  the  court  in  substance  held,  where  in  an  action  in  a  state  court  upon  such 
a  debt  the  judgment  recites  that  "the  sum  of  which  this  judgment  was  rendered 
was  received,  and  held  by  the  defendants  in  a  fiduciary  capacity  for  the  plain- 
tifif,"  and  "that  the  cause  of  action  arose  from  the  willful  and  malicious  act  of 
the  defendants,  and  that  they  ought  to  be  confined  in  close  jail,"  this  decision 
is  conclusive  in  a  court  of  bankruptcy  only  as  to  the  matters  before  the  state 
court  for  decision,  including  whether  he  was  entitled  to  a  close  jail  certificate 
under  the  state  statutes,  but  does  not  affect  the  right  of  the  bankruptcy  court 
to  determine  whether  execution  awarded  with  the  certificate  upon  it  should  be 
used  for  imprisoning  the  bankrupts  to  compel  payment,  and  the  bankruptcy 
court  has  jurisdiction  and  authority  to  stay  the  arrest  of  the  bankrupts  upon 
such  execution. 

But  compare.  In  re  Arkell,  6  A.  B.  R.  650   (N.  Y.  Sup.  Ct.  App.). 

And  compare,.  Hargardine-McKittrick  Dry  Goods  Co.  v.  Hudson,  6  A.  B.  R. 
657,  122  Fed.  23'2  (D.  C.  Mo.,  affirmed  in  10  A.  B.  R.  225,  C.  C.  A.). 

But  the  fraud  must  have  been  the  gravamen  of  the  action  and  proof  of  the 
fraud  must  have  been  essential  to  the  recovery  and  it  was  not  sufficient  that 
the  fraud  was  merely  incidentally  shown.  Collins  z'.  McWalters,  6  A.  B.  R.  595 
(N.  Y.  Sup.  Ct.);  Burnham  v.  Pidcock.  5  A.   B.   R.  590,  68  N.   Y.  Sup.   1007. 

And  a  stipulation  that  the  judgment  should  be  confined  in  its  construction  to  a 
money  judgment  rendered  it  discliargeable.  In  re  Arkell,  6  A.  B.  R.  650  (X.  Y. 
Sup.  Ct.  App.).  Analogously,  Hargardine-McKittrick  Dry  Goods  Co.  v.  Hudson, 
6  A.  B.  R.  657,  122  Fed.  232  (D.  C.  Mo.,  affirmed  in  10  A.  B.  R.  225,  C.  C.  A.). 

And  where  the  creditor  ha3  an  option  to  sue  upon  contract  or  to  waive  the 
contract  and  sue  for  fraud  and  elected  the  former  method  of  procediire,  the  debt 
was  not  one  created  by  fraud;  a  fortiori,  In  re  Rhutassel,  2  A.  B.  R.  697,  96  Fed 
597  (D.  C.  Iowa). 

125.  Obiter,  Mackel  v.  Rochester,  14  A.  B.  R.  429,  135  Fed.  904  (D.  C.  Mont.); 
obiter,  being  as  to  law  before  1903,  McDonald  v.  Brown,  10  A.  B.  R.  63  (R.  I. 
Sup.  Ct.);  compare,  to  this  effect  under  law  of  1887,  Packer  z'.  Whittier,  1  A.  B. 
R.  621  (C.  C.  A.  Mass.).     Compare,  post,  §  2790. 

126.  Mackel  v.  Rochester,  14  A.  B.  R.  429,  135  Fed.  904  (D.  C.  Mont.). 

127.  Compare,  analogouslv,  Hargardine-McKittrick  Co.  z'.  Hudson,  10  A.  B. 
R.  225,  122  Fed.  232  (C.  C.  A.  Mo.). 


§   2754  EFFECT  OF  DISCHARGE.  1619 

§  2751.    False  Representations  Not  Necessarily  in  Writing. — The 

lalse  representations  need  not  necessarily  have  been  made  in  writing  in 
order  to  except  the  debt  from  the  discharge.- 

Obiter,  Katzenstein  r.  Reid,  16  A.  B.  R.  746  (Ct.  App.  Tex.):  "There  is  no 
requirement  in  amended  §  17  as  to  the  manner  in  which  the  false  pretenses  or 
false  representations  shall  be  conveyed  to  the  defrauded  party,  and  we  do  not 
believe  that  the  national  legislature  intended  that  a  requirement  that  such 
pretenses  or  representations  should  be  in  writing  should  be  read  from  §  14 
into  §  17.  In  the  first  section  it  is  provided  that  the  bankrupt  shall  not  be 
discharged  if  he  has  obtained  property  on  credit  upon  a  materially  false  state- 
ment in  writing  made  to  the  person  defrauded  for  the  purpose  of  obtaining 
such  property  on  credit;  but  in  §  17  it  provides  that  such  discharge  will  not 
release  the  bankrupt  from  liabilities  for  obtaining  property  under  false  pre- 
tenses. The  two  provisions  are  not  antagonistic,  and  there  is  no  warrant  for 
reading  one  into  the  other." 

§  2752.  False  Representations  to  Mercantile  Agency  Sufficient. — 

The  false  representations  need  not  have  been  made  to  the  particular  cred- 
itor now  seeking  to  have  his  debt  excepted.  If  made  to  a  mercantile 
agency  to  obtain  credit  it  will  suffice.^^s 

§  2753.  Reckless  Representations  Sufficient. — Reckless  representa- 
tions made  by  a  buyer,  who,  although  having  opportunity  to  find  out  the 
truth,  did  not  actually  know  the  falsity,  will  suffice  to  except  the  debt.i^a 

§  2754.  Third  Exception— Liabilities  for  Willful  and  Malicious  In- 
juries to  Person  or  Property. — Liabilities  for  willful  and  malicious  in- 
juries to  the  person  or  property  of  another  constitute  the  third  exception. 
They  are  not  discharged. ^^^ 

It  is  to  be  noted  in  this  connection  that  such  claims  are,  in  general,  not 
provable,  and  hence  would  not  be  dischargeable  (unless  in  judgment), 
even  if  not  specially  excepted  by  the  statute, ^^^  except  such  of  them  as 

128.  Katzenstein  v.  Reid,  16  A.  B.  R.  746  (Sup.  Ct.  Tex.). 

129.  Katzenstein  v.  Reid,  16  A.  B.  R.  746  (Sup.  Ct.  Tex.). 

130.  Bankr.  Act,  §  17  (a)   (2). 

Judgment  on  a  recognizance  partakes  of  nature  of  original  cause  of  action. 
— Judgment  on  a  recognizance  that  had  been  entered  into  by  one  who  took  the 
poor  debtor's  oath  after  arrest  on  a  judgment  for  assault,  is  not  released  by 
discharge.  In  re  Colacula,  1.3  A.  B.  R.  292,  133  Fed.  25.5  (D.  C.  Mass.).  But 
compare  analogously.  In  re  Blumberg,  1  A.  B.  R.  633.  94  Fed.  476  (D.  C.  Tenn.^. 

Before  1903  Must  Have  Been  Reduced  to  Judgment,  Else  Released.— Before 
the  amendment  of  1903  the  right  of  action  must  have  been  reduced  to  judgrnent 
else  it  was  released  unless  it  was  not  one  of  those  torts  which  could  be  waived 
and  be  presented  as  a  claim  quasi  ex  contractu.  ]\Iorse  &  R.ogers  v.  Kaufman,  7 
A.  B.  R.  549,  4  Va.  Sup.  Ct.  172.     See  ante,  §  2748.  note. 

Before  1903  Character  of  Judgment  Must  Have  Appeared  from  Face  of 
Record. — Before  the  amendment  of  1903  the  character  of  the  obligation  must 
have  appeared  from  the  record  itself:  it  must  have  been  a  judgment  for  willful 
or  malicious  injury.  Inferentially,  In  re  Carmichael,  2  A.  B.  R.  815,  96  Fed.  594 
(D.  C.  Iowa).     See  ante,  §  2748,  note. 

131.  See  ante,  "Claims  ex  Delicto,"  §§  635,  636. 


1620  REMINGTON  ON  BANKRUPTCY.  §  2756 

could  be  proved  in  contract  by  the  waiving  of  the  tort;  therefore,  the 
amendment  of  1903  added  little  to  the  exception  of  willful  and  malicious 
injuries  to  person  or  property,  for,  before  that  amendment,  liabilities  for 
willful  and  malicious  injuries  to  the  person  or  property  of  another  were  not 
provable  debts  and  were  therefore,  even  then,  not  discharged,  except  in 
cases  wherein  the  tort  could  be  waived  and  suit  be  brought  on  contract. 
Of  course,  judgments  would  have  been  then  discharged  had  it  not  been  for 
the  exceptions  of  §   17. 

Thus,  judgmeiits  for  assault  and  battery  are  not  released  ;^32  nor  are 
judgments  for  criminal  conversation. ^^^ 

Likewise,  judgments  for  breach  of  contract  of  marriage,  where  accom- 
panied with'  seduction,  are  not  released  i^^^  nor  are  judgments  for  aliena- 
tion of  affections  ;^'^'^  nor  judgments  for  the  seduction  of  a  daughter  ;i3® 
nor  judgments   for  libel. ^^' 

But  the  liability  must  have  been  for  wullful  and  malicious  injury;  and 
a  judgment  against  a  landlord  for  damages  for  the  bite  of  a  vicious  dog 
kept  by  a  tenant  has  been  held  dischargeable. ^^^ 

§  2755.  Fourth  Exception — Liabilities  for  Alimony. — Liabilities  for 
alimony  already  due  or  to  become  due,  are  not  discharged.^^o 

§  2756.  Simply  Declaratory  of  Law  as  Already  Existing. — This  ex- 
ception, added  by  the  amendment  of  1903,  is  simply  declaratory  of  the  law 
as  it  stood  beforehand ;  for  it  was  already  the  holding  that  such  liabilities 
were  in  the  nature  of  demands  of  the  state,  and  were  not  provable,  and 
hence  were  not   dischargeable.^""^ 

132.  McChristal  z'.  Clisbee,  16  A.  B.  R.  838,  190  Mass.  120;  In  re  Colaculn, 
13  A.  B.  R.  292,  133  Fed.  255   (D.  C.   Mass.). 

133.  Tinker  v.  Colwell,  11  A.  B.  R.  568,  193  U.  S.  473  (affirming  6  A.  B.  R. 
434,  169  N.  Y.  531);  a  case  arising  before  the  amendment  of  1903  added  by  ex- 
press words  liabilities  for  criminal  conversation. 

134.  Distler  z:  McCaulev,  6  A.  B.  R.  491   (Sup.  Ct.  N.  Y.). 

135.  Leicester  v.  Hoadley,  9  A.  B.  R.  318,  66  Kans.  172. 

136.  In  re  Friche,  6  A.  B.  R.  479  (D.  C.  N.  J.):  This  was  a  case  arising  be- 
fore the  amendment  of  1903  added,  by  express  words,  liabilities  for  the  seduc- 
tion of  unmarried  females. 

Contra.  In  re  Sullivan,  2  A.  B.  R.  30  (Ref.  N.  Y.,  distinguished  in  In  re  Smith, 
3  A.  B.  R.  78). 

137.  McDonald  z'.   Brown,  10  A.  B.  R.   58,  23   R.  I.   546. 

138.  In  re  Lorde,  16  A.  B.  R.  200,  144  Fed.  320  (D.  C.  N.  Y.). 

139.  Bankr.  Act,  §  17  (a)    (2). 

140.  Wetmore  v.  Wetmore,  13  A.  B.  R.  1,  196  U.  S.  68;  compare,  Arrington 
V.  Arrington,  13  A.  B.  R.  89,  132  Fed.  208  (D.  C.  N.  Car.);  Audubon  z:  Shufeldt. 
5  A.  B.  R.  829,  181  U.  S.  575;  Young  v.  Young,  7  .\.  B.  R.  171  (Sup.  Ct.  N.  Y.); 
Turner  v.  Turner,  6  A.  B.  R.  289,  108  Fed  785  (D.  C.  Ind.);  Maisner  v.  Mais- 
ner,  6  A.  B.  R.  295  (N.  Y.  Sup.  Ct.  App.).  Compare  contra,  Arrington  z'.  Arring- 
ton, 10  A.  B.  R.  103  (Sup.  Ct.  N.  Car.,  cited  in  Arrington  v.  Arrington,  13  A. 
B.  R.  89,  D.  C.  N.  Car.);  In  re  Shepard,  5  A.  B.  R.  857,  97  Fed.  187  (D.  C.  N. 
Y.);  In  re  Anderson,  5  A.  B.  R.  858  (D.  C.  N.  Y.). 

Contra,  Fite  z:  Fite,  5  A.  B.  R.  461  (Ky.)  61  S.  W.  26,  wherein  alimony  accru- 
ing before  bankruptcy  was  held  dischargeable. 


^  2760  EFFECT  OF  DISCHARGE.  1621 

§  2757.  Fifth  Exception— Support  of  Wife  or  Child.— Liabilities  of 
the  bankrupt  for  the  maintenance  or  support  of  a  wife  or  child  are  not  dis- 
charged.^^ ^ 

§  2758.  Simply  Declaratory  of  Law  as  Already  Existing. — This  ex- 
ception is  simply  declaratory  of  the  law  as  it  stood  before  the  amendment 
of  1903;  for'before  that  time  such  liabilities  were  held  to  be  in  ihe  nature 
of  police  regulations,  and  not  to  be  provable  debts,  and  hence  not  to  be 
cischarged.i'^2 

§  2759.  Liabilities  to  Third  Parties  Not  Excepted— Only  Liabil- 
ities Directly  to  Wife  or  Child. — This  provision  does  not  refer  to  lia- 
bilities to  third  parties  for  furnishing  maintenance  or  support  to  the  wife 

or  child,   but  merely   direct   liabilities   to   themselves   for   maintenance  or 
support.  1-*  3 

In  re  Ostrander,  15  A.  B.  R.  96,  139  Fed.  592  (D.  C.  X.  Y.):  "It  is  considered 
that  the  words  of  §  17a,  cl.  2,  Bankruptcy  Act,  *  *  *  'for  maintenance  or  sup- 
port of  wife  or  child,'  do  not  refer  to  a  debt  incurred  for  the  services  of  a 
physician  called  by  the  husband  to  attend  the  wife  while  she  is  in  normal 
relation  to  her  husband.  If  so,  a  person  supplying  goods  for  a  wife  or  child 
or  rendering  a  service  necessary  for  the  support  or  maintenance,  at  the  request 
of  the  husband,  without  delinquency  on  his  part,  would  be  beyond  the  scope 
of  the  act.  The  grocer,  the  market-man,  clothiers  of  all  descriptions,  physicians, 
dentists,  in  fant  all  who,  by  service  or  sale,  contributed  to  the  support  of  the 
•  family,  and  thereby  to  the  support  of  a  wife  or  child  would  have  claims  not 
dischargeable  under  the  act.  The  provision  has  probable  application  to  cases 
where  the  person  applying  for  discharge  from  his  debts  had  so  betrayed  his 
moral  and  legal  duty  as  a  husband  or  parent  that  another  was  justified  in 
providing  the  maintenance  and  support  denied  by  the  one  upon  whom  the 
law  places  th-e  primary  duty.  Without  attempting  to  define  the  limits  of  the 
section,  it  is  held  that  it  does  not  apply  to  medical  attendance  furnished  upon 
the  express  or  implied  contract  of  the  husband  or- ]5arent  to  pay  therefor  while 
the  recipient  is  a  member  of  the  family,  and  while  there  is  no  breach  of  duty 
on  the  part  of  the  person  contracting  the  debt  toward  the  one  receiving  the 
service." 

§  2760.  Sixth  Exception— Seduction  or  Criminal  Conversation. — 

Liabilities  for  the  seduction  of  an  unmarried  female  or  for  criminal  con- 
versation are  not  discharged. 

Before  the  amendment  of  1903  expressly  included  these  "liabilities"  for 
these  classes  of  torts,  it  had  been  held,  that  judgments  for  seduction  and 
criminal  conversation  were  not  released. ^^^ 

141.  Bankr.  Act,  §  17   (a)    (2). 

142.  In  re  Hubbard,  3  A.  B.  R.  528,  98  Fed.  710  (D.  C.  Ills.);  In  re  Baker, 
3  A.  B.  R.  101,  96  Fed.  964  (D.  C.  Kans.). 

143.  Schellenberg  v.  Mullaney,  16  A.  B.  R.  542.  112  App.  Div.   (N.  Y.)   384. 

144.  Tinker  v.  Colwell,  11  A.  B.  R.  568,  193.  U.  S.  473  (affirming  Colwell  v. 
Tinker,  7  A.  B.  R.  333,  169  N.  Y.  531,  affirming  65  App.  Div.  201,  6  A.  K  R.  434. 
a  case  of  a  judgment  for  criminal  conversation). 

In  re  McCarty,  7  A.  B.  R.  40,  111  Fed.  151  (D.  C.  Ills.),  a  case  of  a  judgment 
for  seduction  of  daughter  by  the  bankrupt. 

In  re  Freche,  6  A.  B.  R.  479,  109  Fed.  620  (D.  C.  N.  J.),  also  a  case  of  a  judg- 


1622  •  REMINGTON    ON   BANKRUPTCY.  !^  276-1 

But  judgments  for  breach  of  promise  to  marry  are  discharged. ^^^ 

§  2761.  Seventh  Exception— Debts  Not  "Duly  Scheduled."— Debts 

are  not  discharged  that  have  not  been  duly  scheduled  in  time  for  proof  and 
allowance',  with  the  name  of  the  creditor  if  known  to  the  bankrupt,  unless 
such  creditor  had  notice  or  actual  knowledge  of  the  proceedings  in  bank- 
ruptcyji^"^  in  time  to  have  proved  his  claim. ^^^ 

Longfield  v.  Savings  Bk.,  14  A.  B.  R.  413,  103  N.  W.  706  (Sup.  Ct.  Minn.): 
"A  discharge  in  bankruptcy  does  not  relieve  the  bankrupt  from  liability  for  a 
provable  debt  v/hich  was  not  scheduled  with  the  name  of  the  creditor,  if  known 
to  the  bankrupt,  unless  such  creditor  had  notice  or  actual  knowledge  of  the  pro- 
ceedings in  bankruptc}'." 

Tyrrel  v.  Hammerstein,  6  A.  B.  R.  431  (N.  Y.  Sup.  Ct.)  :  "Under  the  former 
Bankruptcy  Act,  which  contained  no  such  exception,  the  discharge  was  a  bar, 
even  though  the  creditor  owing  the  demand  was  omitted  from  the  schedule 
and  received  no  notice  of  the  proceeding,  provided  such  omission  was  not  will- 
ful or  fraudulent  (In  jNIatter  of  Archenbrown,  11  Bank.  Reg.  149;  Lamb  v. 
Brown,  12  id.  522;  Pattison  v.  Wilbur,  id.  193;  Williams  v.  Butcher,  id.  143; 
Piatt  V.  Parker,  13  id.  14;  Thurmond  v.  Andrews,  id.  157;  Symonds  v.  Barnes, 
6  id.  377;  Batchelder  v.  Low,  8  id.  571),  and  so  under  the  State  Insolvency  Act. 
Small  V.  Graves,  7  Barb.  576;  Ayres  v.  Scribner,  17  Wend.  407;  American  Flask 
&  Cap  Co.  V.  Son,  3  Abb.  (X.  S.)  337.  The  most  pertinent  inquiry,  therefore, 
is,  what  was  the  defect  in  the  former  provision  that  Congress  intended  to  rem- 
edy by  the  new  one,  for  we  must  hold  that  the  amendment  was  not  made  with- 
out a  substantial  purpose.  The  change  most  clearly  indicated  is  that  where  the 
creditor  has  neither  knowledge  nor  notice  of  the  bankruptcy  proceedings,  his 
debt,  if  not  duly  scheduled,  with  his  name  if  known  to  the  bankrupt,  is  not  to 
be  discharged,  whether  the  omission  is  fraudulent  or  otherwise.  This  would 
seem  to  be  the  application  by  Congress  to  bankruptcy  proceedings  of  the 
familiar  constitutional  principle  that  the  "due  process  of  law'  intended  to  deprive 
one  of  propertj'  contemplates  notice  of  some  kind  to  the  party  whose  property 

ment  for  seduction  of  daughter.  Contra.  Distler  v.  McCauley,  7  A.  B.  R.  138 
(Sup.  Ct.  X.  Y.  App.  Div.);  In  re  Maples,  5  A.  B.  R.  426,  105  Fed.  919  (D.  C. 
Mont.). 

145.  Distler  v.  :\IcCauley,  7  A.  B.  R.  138  (Sup.  Ct.  N.  Y.  App.  Div.);  In  re 
Fife,  6  A.  B.  R.  258,  109  Fed.  880  (D.  C.  Pa.);  Finnegan  v.  Hall.  6  A.  B.  R. 
649  (X.  Y.  Sup.  Ct.);  obiter.  In  re  Brumbaugh,  12  A.  B.  R.  207,  128  Fed.  971 
(D.  C.  Penn.) ;  impliedly  (as  being  "provable"),  In  re  Crocker,  8  A.  B.  R.  18S 
(Ref.  X^.  Y.);  impliedly  (as  being  "provable"),  In  re  IMcCauley,  4  A.  B.  R.  122, 
101  Fed.  223  (D.  C.  X.  Y.). 

146.  Bankr.  Act,  §  17  (a)  (3);  Westheimer  v.  Howard,  14  A.  B.  R.  547,  47 
Misc.  145  (X.  Y.  Ct.  App.);  In  re  Monroe,  7  A.  B.  R.  706,  114  Fed.  398  (D.  C. 
Wash.);  Dight  v.  Chapman,  12  A.  B.  R.  743,  44  Ore.  265;  obiter,  Kaufman  v. 
Schreier,  17  A.  B.  R.  314  (X.  Y.  Sup.  Ct.  App.  Div.);  Collins  v.  McWalters, 
6  A.  B.  R.  593  (Sup.  Ct.  X.  Y.);  instance,  obiter.  In  re  AIcFaun,  3  A.  B.  R.  66, 
96  Fed.  592  (D.  C.  Iowa);  instance,  Cagliostro  v.  Indelle,  17  A.  B.  R.  685  (X. 
Y.  Supt.  Ct.);  Analogously  (composition),  Bdway  Trust  Co.  v.  Manheim,  14 
A.  B.  R.  122  (X.  Y.  Sup.  Ct.);  obiter.  In  re  Miiskoka  Lumber  Co.,  11  A.  B  R 
761,  127  Fed.  886  (D.  C.  X.  Y.) ;  instance  held  "duly  scheduled,"  Mueller  v. 
Goerlitz,  17  A.  B.  R.  687  (X.  Y.  Sup.  Ct.). 

And  judgment  obtained  after  discharge  will  not  be  reopened  *to  let  in  de- 
fense of  discharge  where  creditor  is  not  "duly  scheduled"  and  is  without  knowl- 
edge.   Reed  v.  Dippel,  17  A.  B.  R.  371  (Pa.). 

i47.    Birkett  v.  Columbia  Bank,  12  A.  B.  R.  693,  190  U.  S.  345. 


^§   2763  EFFECT  OF  DISCHARGE.  1623 

is  to  be  taken  that  he  may  have  his  day  in  court  and  be  heard  before  the  court 
adjudicates  against  him." 

Haack  v.  Theise,  16  A.  B.  R.  700,  51  Misc.  (X.  Y.)  3:  "Every  requirement 
of  the  Act  and  of  the  rule  of  the  United  States  Supreme  Court  relating  thereto, 
was  ignored  by  the  defendant  in  scheduling  plaintiff's  debt.  The  plaintiff  as  a 
creditor  was  incorrectly  listed  as  'James  Haack  and  wife.'  There  was  no  such 
concern  and  the  defendant  had  no  such  creditor.  The  resort  to  ditto  marks 
in  attempting  to  indicate  the  plaintifif's  residence  is  in  violation  of  both  the 
letter  and  the  spirit  of  the  Act,  as  well  as  the  rule,  and,  moreover,  has  never 
been  sanctioned  by  authority.  The  rule  is  known  as  General  Order  Number  V, 
and  directs  that  all  schedules  shall  be  printed  or  written  out  plainly  without 
abbreviations. 

"But  even  if  these  ditto  marks  be  invested  with  the  broadest  significance  as 
a  duplication  of  the  statement  of  the  residence  of  Shiby  and  Gaffney  they  are 
grossly  insufhcient.  Then  the  residence  of  the  plaintiff  would  be  stated  as 
'c/o  New  York  Clipper,  N.  Y.  C  By  no  analysis  of  that  combination  of 
words  and  letters  could  the  conclusion  be  reached  that  a  residence  is  indicated. 
The  most  liberal  construction  would  locate  the  plaintiff's  residence  'in  care  of 
New  York  Clipper,  New  York  City.'  With  that  information  who  could  assert 
where    the    plaintiff    resided? 

"Save  in  the  statement  of  the  amount  of  the  debt,  the  schedules  further 
violate  the  provisions  against  the  adoption  of  abbreviations." 

Custard  v.  Wiggerson,  17  A.  B.  R.  337  (Wis.):  "Under  the  bankruptcy  law 
of  1867  this  court  held,  in  harmony  with  the  general  current  of  authority,  that 
a  debt  was  discharged,  even  though  not  scheduled.  *  *  *  But  it  will  be  seen 
that  under  the  act  of  1867  debts  not  scheduled  were  not  excepted  from  the 
operation    of    .iischarge,    while    under    the    Bankruptcy    Act    of    1898    they    are. 

*  *  *  This  provision  is  a  marked  departure  from  former  bankruptcy  acts,  and 
decisions  under  such  acts,  to  the  effect  that  scheduling  was  not  necessary  in 
order  to  bring  the  debt  within  the  order  of  discharge  are  not  pertinent.  The 
Vv'ords  of  the  present  act,  however,  are  plain  and  unambigous,  and  there  can  be 
no  doubt  that  they  mean  what  they  say;  and,  if  so,  unless  the  debt  is  duly 
scheduled  in  time  for  proof  and  allowance,  or  the  creditor  had  notice  or  actunl 
knowledge  of  the  proceedings  in  bankruptcy,  it  is  not  affected  by  the  discharge. 

*  *    *     So  far  as  the  courts  have  spoken,  etc." 

§  2762.  "Due"  Scheduling  Dependent  on  Facts  of  Particular 
Case. — Under  this  exception,  only  duly  scheduled  debts  are  discharged, 
"due  scheduling"  probably  meaning  proper  scheduling.  Obviously,  what 
is  and  what  is  not  "due  scheduling"  must  depend  largely  upon  the  facts  of 
each  case.  In  some  instances  "idem  sonans"  might  be  sufficient.  To  omit 
street  and  number  in  a  large  city,  where  the  creditor's  name  is  a  common 
name,  might  be  a  failure  to  schedule  "duly"  although  it  might  not  be  so  in 
a  small  town.  Likewise,  mistakes  in  the  initials  of  common  names  might 
be  fatal,  where  similar  mistakes  in  rare  names  might  not  be  so.  Debts  mtist 
also  have  been  scheduled  in  time  for  proof  and  allowance.  It  is  not  nec- 
e.-isary  that  the  name  of  the  creditor  be  shown  //  it  is  not  known,  as  is 
likely  to  be  the  case  with  negotiable  paper. 

§  2763.  Thus,  Initials  Instead  of  Full  Given  Names. — Thus,  it  may 
be  not  "due"  scheduling  to  give  initials  instead  of  the  full  given  name. 


1624  REMINGTON  ON  BANKRUPTCY.  §  2766 

Indeed,  in  one  case,  it  has  been  held  per  se  to  be  not  "due"  scheduHng;^-*^ 
but  such  holding  would  be  extreme  on  discharge. 

§  2764.  Abbreviations. — Thus,  abbreviations  may  be  not  due  "sched- 
uling.""9 

One  case,  indeed,  has  held  that  even  the  abbreviation  "Phila.  Pa."  is  not 
"due"  scheduling.^^*^ 

But  such  holding  would  be  extreme  on  discharge  and  it  would  seem  the 
use  of  the  common  abbreviations  would  be  "due"  scheduling. 

But  compare,  obiter,  Sutherland  v.  Lasher,  11  A.  B.  R.  780  (N.  Y.  Sup.  Ct.) : 
"If  it  were  necessarj^  to  pass  upon  the  point  it  would  also  have  to  be  held  that 
the  words  "residence,  135  Bdwy.,"  are  not  a  sufficient  designation  of  any  resi- 
dence." 

§  2765.  Ditto  Marks. — Thus,  the  use  of  ditto  marks  has  been  held  im- 
proper scheduling.  1^^ 

§  2766.  Partnership  Debts  in  Individual  Bankruptcy  of  Partner. — 

Again,  where,  in  an  individual  bankruptcy,  partnership  debts  of  a  firm,  to 
which  the  bankrupt  belonged,  have  not  been  properly  described,  such  debts 
are  not  discharged. 

In  re  McFaun,  3  A.  B.  R.  66,  96  Fed.  592  (D.  C.  Iowa):  "The  schedules  at- 
tached to  the  petition  show  that  a  large  part  of  the  indebtedness  of  the  bank- 
rupt consists  of  debts  created  by  the  firm  of  McFaun  Bros.  The  petition  for 
adjudication,  the  notice  to  creditors,  and  the  petition  for  discharge  make  no 
reference  to  any  firm  liability,  and  do  not  ask  any  relief  against  firm  debts.  A 
discharge  granted  on  this  record  will  not,  in  my  opinion,  operate  to  bar  the 
firm  debts,  but  will  only  afifect  the  debts  owing  by  the  bankrupt  individually. 
*  *  *  If  bankrupt  does  not  wish  to  amend,  a  discharge  will  be  granted  on 
the  present  record,  but  it  will  be  at  risk  of  bankrupt,  so  far  as  the  firm  debts  are 
concerned." 

And  if  the  firm  debts  are  not  "duly"  scheduled  therein,  the  failure  to 
effect  their  discharge  would  come  rather  from  the  statute  itself  than  from 
any  attempted  limitation  contained  in  the  order  of  discharge.^^- 

148.  Compare,  obiter  (not  on  discharge).  In  re  Mackey,  1  A.  B.  R.  595  (Ref. 
N.  Y.). 

149.  Haack  v.  Theise,  16  A.  B.  R.  700,  51  Misc.   (N.  Y.). 

Gen.  Ord.  V.:  "All  petitions  and  the  schedules  filed  therewith  shall  be  printed 
•or  written  out  plainly,  without  abbreviation  or  interlineation,  except  where  such 
abbreviation  and  interlineation  may  be  for  the  purpose  of  reference." 

150.  Compare,  obiter  (not  on  discharge).  In  re  Mackey,  1  A.  B.  R.  595  (Ref. 
N.  Y.). 

151.  Haack  v.  Theise,  16  A.  B.  R.  700,  51  Misc.  (N.  Y.) ;  In  re  Mackey,  1  A. 
E.  R.  594  (Ref.  N.  Y.) :  But  this  decision  was  not  on  the  effect  of  discharge 
but  rather  as  to  the  duty  of  the  referee  to  rfequire  crmendment  of  defective  schea- 
ules.     Ditto  marks  are  liable  to  mislead  but  are  per  se  not  due  scheduling. 

152.  Inferentially  and  obiter.  In  re  McFaun,  3  A.  B.  R.  66,  96  Fed.  592  (D. 
C.  Iowa).  But  compare,  In  re  Carmichael,  2  A.  B.  R.  815,  96  Fed.  594  (D.  C. 
Iowa). 


^  2769  EFFECT  OF  DISCHARGE.  •       .     1625 

And  if  they  are  scheduled  properly  therein,  the  partnership  debt  is  dis- 
charged. 

Lomis  r.  Wallblom,  13  A.  B.  R.  689  (Sup.  Ct.  Minn.):  "Its  full  discharge  as 
an  individual  liability  on  a  firm  debt  may  accordingly  be  had  in  bankruptcy 
proceedings.    *    *    * 

"The  most  serious  question  in  this  case  is  this:  Was  the  indebtedness  prop- 
erly scheduled,  so  as  to  give  notice  to  the  plaintiff's  assignor?  This  question 
must  also  be  answered  in  the  afifirmative.  In  the  schedule,  the  name  of  the 
original  debtor,  the  nature  and  the  amount  of  the  origin-al  debt,  are  correctly 
stated.  The  evidence  shows  that  respondent  owed  the  creditor  no  other  debt. 
Notice  was  properly  given." 

§  3767.  Debts  Intentionally  Scheduled  in  Name  of  Original  Payee 
When  Held  by  Third  Person. — A  debt  intentionally  scheduled  in- 
correctly in  the  name  of  the  payee  when  it  is  known  that  it  is  held  by  a 
discount  bank,  is  not  discharged. ^^^ 

§  2768.  But  Original  Creditor  Sufficient  Where  No  Notice  of  As- 
signment.— But  a  scheduling  of  the  debt  in  the  name  of  the  original  cred- 
itor is  sufficient,  where  no  notice  was  received  by  the  bankrupt  of  an  as- 
signment of  the  claim.  Nor  is  the  bankrupt  bound  to  search  the  records 
to  ascertain  if  any  assignment  has  been  made.  The  duty  of  giving  notice 
rests  on  the  assignee. ^-^^ 

§  2769.  Stockholders'  Liability,  Either  Corporate  Creditors,  or 
Receiver,  May  Be  Scheduled. — In  order  to  a  "due  scheduling"  of  stock- 
holders' liabilities,  either  the  creditors  of  the  corporation  may  be  scheduled. 

Longfield  v.  Sav.  Bk.,  14  A.  B.  R.  413,  103  N.  W.  (Minn.)  706:  "The  creditors 
of  an  insolvent  corporation  brought  an  action  against  it  and  its  stockholders 
to  determine  and  enforce  their  liability  to  them.  Judgment  was  entered  therein 
determining  who  the  creditors  were  and  the  respective  liability  of  the  stock- 
Tiolders  to  them,  and  designating  a  receiver  to  collect  and  enforce  on  their  be- 
lialf  such  liability,  and  for  that  purpose  it  was  adjudged  that  he  recover  in  the 
action  from  each  stockholder  the  amount  of  his  adjudged  liability  and  have 
execution  therefor.  Thereafter  one  of  the  stockholders  was  discharged  from 
"his  debts  in  bankruptcy,  but  in  his  schedule  of  creditors  he  named  the  creditors 
for  whose  benefit  the  judgment  was  rendered,  and  not  the  receiver. 

"Held,  that  his  actual  creditors  were  named  in  the  schedule,  and  that  his 
discharge  released  him  from  liability  on  the  judgment." 

Or  the  receiver  appointed  in  the  stockholders'  liability  suit  may  be  sched- 
rded.^^° 

153.  Columbia  Bank  v.  Birkett,  7  A.  B.  R.  222  (Sup.  Ct.  N.  Y.),  9  A.  B.  R. 
481,  174  U.  S.  112  (affirmed  sub  nom.  Birkett  v.  Columbia  Bank,  12  A.  B.  R. 
«91.  195  U.   S.  345). 

154.  Mueller  u.  Goerlitz,  17  A.  B.  R.  687  (N.  Y.  Sup.  Ct.) ;  Lent  v.  Farns- 
worth,   180   N.   Y.   503. 

155.  Birkett  v.  Columbia  Bk.,  12  A.  B.  R.  691,  195  U.  S.  345,  affirming  Colum- 
bia V.  Birkett,  9  A.  B.  R.  481.  Compare,  that  actual  notice  to  receiver  is  suf- 
ficient to  bind  corporate  creditors,  Dight  v.  Chapman,  12  A.  B.  R.  745,  44  Ore. 
265. 


1626  REMINGTON    ON    BANKRUPTCY.  §   2775 

§  2770.  Failure  to  Give  Street  Number  in  City  Where  Ascertain- 
able.— Failure  to  give  the  number  of  the  street  of  the  creditor's  ad- 
dress in  a  great  city,  where  ascertainable  by  due  diligence,  is  not  "due 
scheduling."!^^ 

§  2771.  Giving  Name  and  Street  Correctly,  but  City  Wrong,  Not 
"Due"  Scheduling. — The  giving  of  the  name  and  street  correctly,  but 
not  the  right  city  is,  of  course,  not  "due"  scheduling. 

Westheimer  v.  Howard,  14  A.  B.  R.  547  (N.  Y.  Sup.  Ct.  App.) :  "If  by  the 
default  of  the  bankrupt  no  notice  reaches  the  creditor  and  no  actual  knowledge 
on  his  part  is  shown,  the  debt  is  not  discharged.  The  schedule  of  debts  which 
the  bankrupt  files  furnishes  the  basis  for  the  notices  sent  by  the  referee  or  the 
court  and  'thus,  the  bankrupt  appears  to  be  made  responsible  for  the  correct- 
ness of  the  list  of  his  creditors.' 

'  "In  the  case  at  bar  the  schedule  gives  the  address  317  Main  street  New  York 
city.  There  is  no  presumption  that  notices  so  addressed  reached  them  at 
317  Main  street,  Cincinnati,  O.  The  questions  excluded  by  the  justice  were 
competent  to  show,  first,  that  no  notices  reached  the  plaintiffs,  and  secondly, 
that  they  had  no  actual  knowledge  of  the  proceedings.  The  judgment  should  be 
reversed." 

§  2772.  "Idem  Sonans." — A  misnomer  is  not  always  fatal,  but 
may  be  so.^^' 

§  2773.  Innocent  Intent  in  Faulty  Scheduling,  No  Excuse. — It  is 

immaterial  whether  the  omission,  or  the  failure  to  "duly"  schedule  the 
debt,  was  innocent,  or  was  fraudulent,  willful,  intentional  or  careless;  the 
fact,  not  the  intent,  controls  under  the  present  law.^-^^ 

§  2774.  Where  Actual  Address  Unknown,  a  Guess  at  Surmised 
Address  Not  Sufficient. — A  debt  is  not  "duly"  scheduled  where,  al- 
though the  actual  address  is  unknown,  the  bankrupt  nevertheless  makes  a 
guess  and  mentions  a  surmised  address  as  the  real  address  ;  for  the  forms  re- 
C[uire  that  if  the  creditor's  address  is  unknown,  the  fact  is  to  be  stated. ^'^^ 
And  an  address  "In  care  of  New  York  Clipper"  is  not  an  address  within  the 
.meaning  of  the  law. 

§  2775.  Reasonable  Diligence  in  Ascertaining  Correct  Address 
Requisite. — The  bankrupt  is  bound  to  use  reasonable  diligence  in  ascer- 

156.  Cagliostro  v.  Indelle,  17  A.  B.  R.  685  (N.  Y.  Sup.  Ct.). 

157.  Instance  where  fatal,  Custard  v.  Wiggerson,  17  A.  B.  R.  337  (Wis.  Sup. 
Ct.):  "Castard"  for  "Custard." 

158.  Tyrrel  v.  Hammerstein,  6  A.  B.  R.  431  (N.  Y.  Sup.  Ct.).  Contra,  under 
the   old   law   of   1867,   Tyrrel   v.    Hammerstein,   supra,   and   cases   cited. 

159.  Sutherland  v.  Lasher,  11  A.  B.  R.  780  (Sup.  Ct.  N.  Y.  Special  Term 
190,'i);  inferentially,  Westheimer  v.  Howard,  14  A.  B.  R.  547  (N.  Y.  Sup.  Ct 
App.). 


§   2780  EFFECT  OF  DISCHARGE.  1627 

taining  a  creditor's  correct  address ;  and  failure  to  use  due  diligence  in  that 
regard  will  bar  the  excuse  of  lack  of  actual  knowledge.^^f 

§  2776.  Where  All  Addresses  Stated  to  Be  Unknown,  Court  to 
Withhold    Discharge    until  Satisfied    Due  Diligence    Exercised. 

Where  all  the  addresses  are  stated  to  be  "unknown,"  mere  notice  by  pub- 
lication will  be  insufficient,  unless  the  court  is  satisfied  that  reasonable  dil- 
igence has  been  exercised  in  trying  to  ascertain  the  addresses;  and  the 
discharge  may  meanwhile  be  withheld.^*' ^ 

§  2777.  Actual  Knowledge  by  Creditor  Cures  Defective  Schedul- 
ing.— If  the  creditor  has  actual  knowledge  of  the  bankruptcy  proceedings 
in  time  to  prove  his  claim,  his  omission  from  the  schedules  or  the  defective 
scheduling  of  him,  is  cured. ^^- 

Zimmerman  v.  Ketchum,  11  A.  B.  R.  190,  71  Pac.  264  (Kans.  Sup.  Ct.):  "A 
discharge  in  bankruptcy  will  prevent  a  recovery  against  the  bankrupt  upon  an 
account  for  lumber  and  material  sold  to  and  used  by  him  in  the  erection  of  a 
dwelling  house  upon  his  homestead,  although  such  liability  is  not  scheduled 
in  the  bankruptcy  proceedings,  if  the  creditor  had  notice  or  actual  knowledge 
of  the  proceedings   in  bankruptcy." 

§  2778.  No  Particular  Form  of  Notice  Requisite. — No  particular 
form  of  notice,  nor  of  service  of  notice,  is  requisite.    Actual  notice  is  suffi-l 
cient,   however    acquired;   and' it   may   be   proved   by   circumstantial   evi- 
denced*'^ • 

§  2779.  Agent's  Knowledge  Imputable  to  Principal. — Knowledge  of 
the  agent  may  be  imputed  to  the  principal. ^•'^ 

§  2780.  Knowledge  Not  Sufficient  unless  in  Time  for  Creditor  to 
Avail  Himself  of  Benefits  of  Law. — Such  actual  knowledge  must  have 
been  acquired  in  time  to  have  enabled  the  creditor  to  avail  himself  of  the 
benefits  of  the  law,  else  it  will  not  suffice  to  obviate  the  lack  of  due  sched- 
uling. 

Birkett  v.  Columbia  Bank,  12  A.  B.  R.  693,  195  U.  S.  345:  "Actual  knowledge 
of  the  proceedings  contemplated  by  the  section  is  a  knowledge  in  time  to  avail  ^ 
creditor  of  the  benefits  of  the  law — in  time  to  give  him  an  equal  opportunity  with 

160.  Schiller  v.  Weinstein,  15  A.  B.  R.  183  (N.  Y.  Sup.  Ct.  App.) ;  Cagliostro 
V.  Indelle,  17  A.  B.  R.  685  (N.  Y.  Sup.  Ct.);  In  re  Dvorak,  6  A.  B.  R.  66,  lOT 
Fed.  76  (D.  C.  Iowa). 

161.  In  re  Dvorak,  6  A.  B.  R.  66,  107  Fed.  76  (D.  C.  Iowa);  In  re  Mackey, 
1  A.  B.  R.  593  (Ref.  N.  Y.). 

162.  Bankr.  Act,  §  17  (a)  (3);  Broadway  Trust  Co.  v.  Manheim,  14  A.  B.  R. 
122  (N.  Y.  Sup.  Ct.);  inferentially,  Birkett  v.  Columbia,  12  A.  B.  R.  693,  195  U. 
S.  345;  Dight  v.  Chapman,  12  A.  B.  R.  745,  44  Ore.  265;  Kaufman  v.  Schreier, 
17  A.  B.  R.  314  (N.  Y.  Sup.  Ct.  App.  Div.) ;  Knapp  v.  Harold,  25  Ohio  C.  C. 
213;  obiter,  Haack  v.  Theise,  A.  B.  R.  700,  51  Misc.  (N.  Y.) ;  inferentially,  Suth- 
erland V.  Lasher,  11  A.  B.  R.  780   (Sup.  Ct.  N.  Y.  Special  Term). 

163.  Knapp  v.   Harold,  25  Ohio  C.  C.  213. 

164.  Dight  V.  Chapman,  12  A.  B.  R.  745,  44  Ore.  265:  This  was  a  case  of  the 
actual  knowledge  of  the  receiver  in  a  stockholders'  liability  suit  imputed  to  all 
creditors. 


1628  REMINGTON    ON    BANKRUrTCY.  '  §   2783 

Other  creditors — not  a  knowledge  that  may  come  so  late  as  to  deprive  him  of  par- 
ticipation in  the  administration  of  the  afifairs  of  the  estate  or  to  deprive  him  of 
dividends  (§  65).  The  provisions  of  the  law  relied  upon  by  plaintiff  in  error  are 
for  the  benefit  of  creditors,  not  of  the  debtor." 

§  2781.  Defending,  That  Debt  Not  "Duly"  Scheduled,  Not  Col- 
lateral Attack. — Avoiding  the  effect  of  a  discharge  by  alleging  one's 
claim  was  not  "ditly  scheduled"  is  not  a  collateral  attack  on  the  dis- 
charge.^*^^ 

It  is  not  a  direct  attack  either:  it  is  not  an  attack  upon  the  discharge  at 
all,  but  rather  a  carrying  out  of  its  terms,  for,  by  the  law  itself,  the  dis- 
charge is  not  to  operate  upon  claims  not  duly  scheduled.^''*' 

Schiller  v.  Weinstein,  15  A.  B.  R.  184  (N.  Y.  Court  Appeals):  "By  this  deter- 
mination 'The  validity  and  effectiveness  of  the  discharge  in  general  are  not 
questioned'  and  'it  does  not  extend  to  this  particular  claim.'  " 

§  2782.  After  Discharge  Too  Late  to  Amend  Schedules  to  Include 
Omitted  Creditors. — After  discharge  has  been  granted,  it  is  too  late  to 
amend  the  schedules  to  include  the  omitted  creditor. i*5' 

§  2783.  Eighth  Exception — Claims  for  Fraud,  Embezzlement,  etc., 
While  Officer  or  in  Fiduciary  Capacity. — Debts,  demands  and  claims 
created  by  the  bankrupt's  fraud,  embezzlement,  misappropriation,  or  de- 
falcation while  acting  as  an  officer,  or  in  any  fiduciary  capacity,  are  not  dis- 
charged.^*^^ 

165.  See  ante,  §  2667. 

Sutherland  v.  Lasher,  11  A.  B.  R.  780,  41  N.  Y.  Misc.  251  (quoted  ante,  § 
2667:  affirmed  87  App.  Div.  633). 

166.  See  ante,  §  2667. 

167.  In  re  Spicer,  16  A.  B.  R.  802  (D.  C.  N.  Y.). 

168.  Bankr.  Act,  §  17  (a)  (4);  Crawford  v.  Burke,  12  A.  B.  R.  668,  195  U.  S. 
176;  In  re  Bullis,  7  A.  B.  R.  238   (Sup.  Ct.  N.  Y.  App.  Div.);   Morse  v.  Rogers 

6  Kaufman,  7  A.  B.  R.  549  (Sup.  Ct.  App.  Va.;  In  re  Blumberg,  1  A.  B.  R. 
633,  94  Fed.  476  (D.  C.  Tenn.) ;  Western  Union  Cold  Storage  Co.  zf.  Hurd,  8 
A.  B.  R.  634,  116  Fed.  442  (D.  C.  Mo.);  Bryant  z'.  Kinyon.  6  A.  B.  R.  237, 
(Mich.);  In  re  Floyd,  Crawford  &  Co.,  15  A.  B.  R.  277  (Special  Master  N.  Y.); 
In  re  Basch,  3  A.  B.  R.  235,  97  Fed.  761  (D.  C.  N.  Y.) ;  In  re  Butts,  10  A.  B.  R. 
16,  120  Fed.  960  (D.  C.  ISP.  Y.) ;  In  re  Gaylord,  7  A.  B.  R.  577,  113  Fed.  131  (D. 
C.  Mo.);  Watertown  Carriage  Co.  v.  Hall,  11  A.  B.  R.  18  (N.  Y.  Ct.  App., 
affirming  10  A.  B.  R.  23  and  7  A.  B.  R.  716);  Knott  v.  Putnam,  6  A.  B.  R.  80, 
107  Fed.  907  (D.  C.  Vt.) ;  Burnham  v.  Pidcock,  5  A.  B.  R.  590,  68  N.  Y.  Supp. 
1007  (affirming  5  A.  B.  R.  42). 

Bracken  v.  Milner,  5  A.  B.  R.  23  (D.  C.  Mo.):  Trust  deed,  bankrupt  acting  is 
trustee,  foreclosing  deed  but  converting  proceeds:  Secretly  buying  in  property 
at  foreclosure  of  beneficiary's  trust  deed;  held  fiduciary  capacity. 

Tindle  v.  Birkett,  18  A.  B.  R.  121,  205  U.  S.  185  (afi^rming  15  A.  B.  R.  179); 
Tindle  v.  Birkett,  15  A.  B.  R.  179  (N.  Y.  Ct.  Appeals);  Claflin  Dry  Goods  Co.  t. 
Eason,  2  A.  B.  R.  263  (D.  C.  Va.). 

In  re  Harper,  13  A.  B.  R.  430,  133  Fed.  970  (D.  C.  Va.,  affirmed  sub  nom. 
Harper  v.  Rankin,  15  A.  B.  R.  608,  C.  C.  A.  W.  Va.,  affirming  In  re  Harper), 
wherein  a  bank  officer  was  held  to  be  such  officer. 

Reeves  v.  McCracken,  13  A.  B.  R.  680  (N.  J.  Ch.) ;  Bills  v.  Schliep,  11  A.  B. 
R.  611   (C.  C.  A.  N.  Y.):   Conversion  by  factor;   Morse  &  Rogers  v.  Kaufman, 

7  A.  B.  R.  549  (Sup.  Ct.  App.  Va.);  Harper  v.  Rankin,  15  A.  B.  R.  608  (C.  C. 
A.  W.  Va.,  affirming  In  re  Harper,  13  A.  B.  R.  430,  133  Fed.  970  D.  C.  Va); 
obiter,  In  re  Adler,  16  A.  B.  R.  416,  144  Fed.  659  (C.  C.  A.  N.  Y.).  • 


§   2785  EFFECT  OF  DISCHARGE.  1629 

§  2784.  Must  Be  Committed  While  Acting  as  "Officer"  or  in  "Fi- 
duciary Capacity." — The  fraud,  embezzlement,  misappropriation  as  well 
as  the  defalcation  must  have  been  committed  while  acting  as  an  officer  or 
in  a  fiduciary  capacity. ^""'^ 

§  2785.  "Fiduciary  Capacity"  Refers  to  Express  Trusts  and  Ex- 
cludes Conversions  by  Agents,  etc.,  Also  Fraudulent  Transfers. — 

"Fiduciary  capacity"  refers  to  technical  or  express  trusts  and  excludes  con- 
versions and  frauds  by  commission  men,  brokers,  agents,  partners,  etc.,  and 
other  implied  trustees. i"*"'  It  also  excludes  the  implied  trust  of  a  fraudu- 
lent transferee  existing  in  favor  of  creditors. 

Bills  V.  Schliep,  11  A.  B.  R.  611,  127  Fed.  103  (C.  C.  A.  N.  Y.) :  "The  debt 
of  a  factor  for  moneys  received  on  sale  of  a  principal's  goods  has  been  held 
not  to  be  a  debt  created  by  one  acting  in  a  fiduciary  capacity,  within  the  mean- 
ing of  the  Bankrupt  Law.  *  *  *  But  the  obligation  of  a  factor  for  goods  in- 
trusted to  him  is  of  a  fiduciary  character,  and,  before  sale,  the  principal  may 
restrain  an  unauthorized  disposition  of  such  property,  or  compel  observance 
of  the  conditions  of  such  trust;  and,  after,  the  principal  may  equitably  follow 

169.  Crawford  v.  Burke,  12  A.  B.  R.  668,  195  U.  S.  176;  In  re  Bullis,  7  A.  B. 
R.  238  (Sup.  Ct.  N.  Y.  App.  Div.);  Morse  &  Rogers  v.  Kaufman,  7  A.  B.  R. 
549  (Sup.  Ct.  App.  Va.);  In  re  Harper,  13  A.  B.  R.  430,  133  Fed.  970  (D.  C. 
Va.);  In  re  Adler,  16  A.  B.  R.  416,  144  Fed.  659  (C.  C.  A.  N.  Y.) ;  In  re  Wenman, 
16  A.  B.  R.  691  (D.  C.  X.  Y.) :  Ticket  agent  converting  proceeds  of  sales  of 
tickets. 

Contra,  In  re  Butts,  10  A.  B.  R.  16,  120  Fed.  960  (D.  C.  N.  Y.);  contra.  Frey 
V.  Torrev,  8  A.  B.  R.  196  (X.  Y.  Sup.  Ct.  App.);  That  this  case  is  overruled  by 
Crawford  v.  Burke,  supra,  see  Tindell  v.  Birkett,  15  A.  B.  R.  180  (X.  Y.  Ct. 
App.). 

Whether  "Officer"  and  "Fiduciary  Capacity"  Modified  Only  "Defalcation," 
before  Amendment  1903. — It  was  held,  even  before  the  amendment  of  1903  (and 
by  a  judge  who  was  on  the  judiciary  committee  of  congress  that  framed  the 
law)  that  the  clause  "while  acting  as  an  officer  or  in  any  fiduciary  capacity" 
modified  onlj^  "defalcation,"  and  that  for  this  reason  debts  not  reduced  to  judg- 
ment, created  by  the,  bankrupt's  fraud,  embezzlement  or  misappropriation  were 
not  discharged,  although  the  bankrupt  were  not  "acting  as  an  officer  nor  in  any 
fiduciary  capacity."  And  there  was  some  weight  to  this  argument,  for  otherwise 
there  would  have  been  a  redundancy  of  words  in  the  statute  and  each  word 
used  would  not  have  been  given  a  distinct  meaning  as  is  required  by  the  canons 
of  statutory  construction,  if  it  is  possible  to  do  so  at  all. 

Obiter,  in  re  Butts,  10  A.  B.  R.  16,  120  Fed.  960  (D.  C.  N.  Y.);  Frey  v.  Torrey. 
8  A.  B.  R.  196  (Sup.  Ct.  App.  N.  Y.).  affirming,  Frey  v.  Torrey,  6  A.  B.  R. 
448).  That  this  case  is  overruled  by  Crawford  v.  Burke,  12  A.  B.  R.  668,  17.^ 
U.  S.  176,  see  Tindle  v.  Birkett,  15  A.  B.  R.  180  (X.  Y.  Court  of  Appeals). 

But  the  necessity  for  such  distinction  no  longer  exists  since,  by  the  amend- 
ment of  1903,  the  requirement  that  the  liability  must  have  been  reduced  to  a 
judgment  has  been  removed,  although  even  yet  not  all  frauds  are  excepted, 
but  only  that  of  obtaining  property  by  false  pretenses  or  false  representations. 
See   discussion   of  second   exception,   ante,  §   2746. 

170.  Gee  V.  Gee,  7  A.  B.  R.  503  (Minn.),  misappropriation  of  funds  by  partner. 
Tindle  v.  Birkett,  18  A.  B.  R.  121,  205  U.  S.  185  (affirming  15  A.  B.  R.  179). 
Compare,  Tindle  v.  Birkett,  15  A.  B.  R.  179  (X.  Y.  Court  of  Appeals),  a  claim 
for  goods  obtained  by  false  representations  before  amendment  of  1903.  In  re 
Wenman,  16  A.  B.  R.  691  (D.  C.  X.  Y.),  a  conversion  by  ticket  agent  of  proceeds 
of  sales  of  tickets.  Burnham  v.  Pidcock,  5  A.  B.  R.  590,  68  X.  Y.  Supp.  1007; 
Western  Union  Cold  Storage  Co.  v.  Hurd,  8  A.- B.  R.  634,  116' Fed.  442  (D.  C. 
Mo.);  In  re  Adler,  16  A.  B.  R.  417,  114  Fed.  659  (C.  C.  A.  N.  Y.);  In  re  Gay- 


1630  REMINGTON    ON    BANKRUPTCY.  §    2785 

the  moneys  received  from  the  sale  of  such  goods  into  the  hands  of  any  person 
who  receives  them  with  knowledge  of  their  trust  character." 

Knott  V.  Putnanfi,  6  A.  B.  R.  80,  107  Fed.  907  (D.  C.  Vt.):  And  this  is  so 
although  the  judgment  obtained  in  the  state  court  for  the  conversion  recites 
that  "the  sum  on  which  this  judgment  was  rendered  was  received  and  held  by 
the  defendants  in  a  iiduciary  capacity  for  the  plaintiff"  and  that  "the  cause  of 
action  arose  from  the  wilful  and  malicious  act  of  the  defendants,  and  they 
ought  to  be  confined  in  close  jail."  Where  the  matter  is  before  the  bankruptcy 
court,  the  state  court's  judgment  will  only  be  binding  as  to  parties,  amounts  and 
times  and  not  as  to  the  character  of  the  debt. 

Reeves  v.  McCracken,  13  A.  B.  R.  680  (Ct.  Ch.  N.  J.):  "Held  (1)  that,  the 
words  'Fiduciary  capacity'  having  reference  only  to  technical  trusts,  ,a  debt 
arising  out  of  an  implied  understanding  had  on  a  conveyance  in  the  ordinary 
form  of  an  absolute  deed  from  R.  to  M.  of  certain  parts  of  R.'s  real  estate,  no 
trust  being  expressly  declared,  was  not  excepted  from  the  operation  of  a  dis- 
charge; (2)  that  the  fair  inference  from  the  facts  stated  was  that  the  convey- 
ance was  intended  to  hinder  and  delay  creditors,  and  that  the  grantee  therein 
did  not  for  that  reason  also  hold  in  a  fiduciary  capacity  within  the  meaning  of 
the  Act." 

In  re  Benedict,  8  A.  B.  R.  463,  75  N.  Y.  Supp.  165:  "In  the  present  case  the  ■ 
bankrupt  did  not  come  into  possession  of  the  goods  of  the  plaintifif  by  fraud  or 
false  representations.  They  were  consigned  to  him  and  his  possession  was  a 
lawful  one.  By  his  contract  with  the  plaintiff  it  became  his  duty  to  account 
for  the  proceeds  of  sales  made  by  him.  He  failed  to  do  this,  and  converted 
the  money  to  his  own  use.  It  would  seem,  under  the  authority  of  the  above 
cases,  that  the  judgment  was  cme  which  was  dischargeable  by  bankruptcy  pro- 
ceedings." 

Mulock  V.  Byrnes,  129  N.  Y.  23:  "It  has  been  frequently  held  in  cases  of  con- 
trolling authority  that  the  language  of  the  Bankrupt  Law  does  not  apply  to 
cases  of  implied  trusts;  but  only  to  those  technical  trusts  which  are  actually 
and  expressly  constituted  by  the  parties.  *  *  *  That  the  evidence  and  the 
affidavits  in  the  case  under  consideration  'show  no  other  or  different  trust  or 
fiduciary  relation  than  such  as  may  be  said  always  to  exist  in  k  case  of  agency. 
In  every  such  case  there  is  an  element  of  trust  and  confidence,  so  that  a  breach 
of  duty  may  be  said  to  be  a  breach  of  trust,  but  the  agent  is,  nevertheless,  not 
a  fiduciary  within  the. meaning  of  the  Bankrupt  Act.'  " 

In  re  Floyd,  Crawford  &  Co.,  15  A.  B.  R.  277  (Ref.  N.  Y.)  :  "*  *  *  and  there 
is  nothing  better  settled  in  the  Bankruptcy  Law  than  that  the  liability  of  a 
converting  bankrupt  is  not  within  the  terms  of  §  17   (a)   (2)." 

Barrett  v.  Prince,  143    Fed.  302,  16  A.  B.  R.  65  (C.  C.  A.  Ills.):     "*    *    *    mere 

lord,  7  A.  B.  R.  577,  113  Fed.  131  (D.  C.  Mo.);  In  re  Butts,  10  A.  B.  R.  16,  120 
Fed.  960  (D.  C.  N.  Y.) ;  instance,  Fechter  v.  Postel,  17  A.  B.  R.  316  (Sup.  Ct. 
N.  Y.  App.  Div.);-  In  re  Basch,  3  A.  B.  R.  235,  97   Fed.   761   (D.  C.  N.  Y.). 

Compare,  to  same  effect,  under  the  law  of  1867,  Upshur  v.  Briscoe,  138  U.  S. 
378;  [1867]  Hennequin  v.  Clews,  111  U.  S.  676;  [1867]  In  re  Brown,  Fed.  Cases 
979;  Cronon  v.  Cutting,  104  Mass.  245;  compare,  to  same  effect  [1867]  Palmer 
V.  Hussey,  118  U.  S.  96;  compare,  to  s~anie  effect  [1867]  Ames  v.  Moir,  138  U.  S. 
306;  compare,  to  same  effect  [1867]  In  re  Smith,  22  Fed.  Cas.  388;  compare,  io 
same  effect  11867]  Keine  v.  Graff,  17  N.  B.  Reg.  319.  14  Fed.  Cas.  218;  compare, 
to  same  effect  [1867]  Omsley  v.  Cobin,  15  N.  B.  Reg.  489,  18  Fed.  Cas.  929i 
compare,  to  same  effect   [1867]    Zeperink  v.  Card,  11   Fed.  295. 

But  contra,  that  they  include  implied  trusts  such  as  those  of  officers  of  cor- 
porations, see  In  re  Harper,  13.A.  B.  R.  430,  133  Fed.  970  (D.  C.  Va.).  ' 

And  also  contra,  that  other  conversions  than  those  by  express  trustees  are 
discharged,  Watertown  v.  Hall,  11  A.  B.  R.  15  (N.  Y.  Court  App.,  affirming  10 
A.  B.  R.  23  and  7  A.  B.  R.  716). 


§   2787  EFFECT  OF  DISCHARGE.  1631 

confidence  reposed  in  the  punctuality  or  integrity  of  a  person  with  whom  one 
has  commercial  transactions  is  not  the  fiduciary  relation  that  was  meant  to 
be  covered  b}'  the  excepting  portion  of  the   Bankrupt  Act." 

[1841]  Chapman  v.  Forsyth,  2  How.  (U.  S.)  202:  "If  the  Act  embraces  such 
a  debt,  it  will  be  difficult  to  limit  its  application.  It  must  include  all  debts  aris- 
ing from  agencies,  and,  indeed,  all  cases  where  the  law  iinplies  an  obligation 
from  the  trust  reposed  in  the  debtor.  Such  a  construction  would  have  left  but 
few  debts  on  which  the  law  could  operate.  In  almost  all  the  commercial  trans- 
actions of  the  country  confidence  is  reposed  in  the  punctuality  and  integrity  of 
the  debtor,  and  a  violation  of  these  is,  in  a  commercial  sense,  a  disregard  of  a 
trust.     But  this  is  not  the  relation  spoken  of  in  the  first  section  of  the  act." 

§  2786.  "Fiduciary"  Relation  Must  Exist  Independently  of  Trans- 
action in  Which  Debt  Arose.— "Fiduciary  capacity"  implies  one  existing 
previously  to  or  independently  of  the  particular  transaction  out  of  which 
the  debt  arises.^" ^ 

Inferentially,  obiter,  In  re  Harper,  13  A.  B.  R.  430,  133  Fed.  970  (D.  C.  Va., 
affirmed  sub  nom.  Harper  z:  Rankin,  15  A.  B.  R.  608,  141  Fed.  625):  "But  it 
seems  clear  that  implied  trusts — a  term  usually  employed  in  distinguishment 
from  express  trusts — where  the  trust  obligation  is  to  be  implied  from  the  con- 
tract, are  in  many  cases  not  to  be  held  as  embraced  within  the  term  'fiduciary 
capacity'  as  used  in  the  Acts  of  1841  and  1867." 

§  2787.  Whether  Includes  "Officers"  of  Private  Corporation.— It 

is  a  question  whether  "oflicer"  as  here  used  includes  officers  of  private  cor- 
porations, as  is  held  in  some  cases/"-  or  is  confined  to  public  officers,  as 
held  in  others. i"-" 

That  it  is  not  so  confined,  see 

In  re  Harper,  13  A.  B.^R.  430,  133  Fed.  970  (D.  C.  Va.  affirmed  sub  nom. 
Harper  v.  Rankin,  15  A.  B.  R.  608,  141  Fed.  625,  C.  C.  A.) :  "And  a  reason  of 
some  force  exists  for  the  supposition  that  Congress  intended  by  the  change  of 
language  to  extend  the  exception  in  clause  4  of  §  17,  so  as  to  include 
debts  created  by  the  fraud,  or  embezzlement,  or  misappropriation  or  defalcation 
of  officers  of  private  corporations.  The  Supreme  Court,  in  Chapman  v.  For- 
sythe,  2  How.  202,  207,  limited  the  meaning"  of  the  expression  in  the  Act 
of  1841,  'any  other  fiduciary  capacity,'  so  that  it  did  not  include  a  fidu- 
ciary (other  than  an  executor,  administrator,  guardian,  or  'special'  trustee) 
whose  trust  is  one  implied  from  his  contract.  *  *  *  'j'j-^g  trust  or  obligation  of 
officers  of  private  corporations,  who  are  given  such  control  of  the  funds  or 
credits  of  the  corporation  as  to  be  able  to  commit  embezzlement,  misappro- 
priation, or  defalcation,  is  rarely  or  never  .created  by  the  express  terms  of  any 
writing.  On  the  other  hand,  such  trusts  correspond  to  and  satisfy  the  commonly 
accepted  definition  of  implied  trusts: 

"  'Those  which,  without  being  expressed,  are  deducible  from  the  nature  of 
the  transaction  as  matters  of  intent,  or  which  are  superinduced  upon  the  trans- 

171.  Bryant  r.  Kinyon,  6  A.  B.  R.  237    (Mich.). 

172.  Harper  z'.  Rankin,  15  A.  B.  R.  608,  141  Fed.  625  (C.  C.  A.  Va.,  affirm- 
ing  In  re    Harper,   13   A.   B.   R.  430,   133   Fed;  970   (D.   C.   Va.). 

173.  Obiter,  In  re  Floyd,  Crawford  &  Co.,  15  A.  B.  R.  281  (Ref.  N.  Y.). 


1632  REMINGTON    ON    BANKRUPTCY.  §    2789 

action  by  operation  of  law,  as  matters  of  equity,  independently  of  the  particular 
intention  of  the  parties.'     2  Bouv.  Diet.  754. 

"In  drafting  the  Act  of  1898,  Congress  must  be  presumed  to  have  known  the 
limited  meaning  given  by  the  courts  to  the  ejcpression  'fiduciary  capacity,'  and 
the  employment  of  this  often  adjudicated  expression  indicates  that  it  is  used 
with  the  limited  meaning  given  it  under  the  .former  laws.  The  consequence, 
therefore,  of  again  using  the  term  'public  officer'  might  have  been  to  reduce 
the  embezzlements  and  defalcations  not  excepted  from  discharge  in  bankruptcy 
to  a  minimum.  The  vast  numbers  of  private  Corporations,  the  immense  sums 
necessarily  put  under  the  control  of  the  officers  of  such  corporations,  and  the 
evil  resuks  of  allowing  dishonest  officials  of  private  corporations  who  have 
committed  embezzlement,  misappropriation,  or  defalcation  to  have  discharges 
in  bankruptcy  from  debts  thus  created,  afiford  a  sufficient  reason  for  an  intent 
on  the  part  of  Congress  to  forbid  discharges  of  debts  so  created  by  such  per- 
son. *  *  *  I  am  forced  to  the  conclusion  that  the  word  'officer'  includes  an 
officer  of  a  private  corporation." 

§  2788.    "Fraud"  Means  Moral  Turpitude  or  Intentional  Wrong. 

— "Fraud,"  as  here  used,  means  moral  turpitude  or  intentional  wrong.  ^''■* 

In  re  Blumberg,  1  A.  B.  R.  633,  94  Fed.  476  (D.  C.  Tenn.) :  "It  is  not  to  be 
doubted  that  the  purpose  of  this  statute  is  the  same  as  a  similar  provision  found 
in  the  former  Bankruptcy  Law;  and  that  the  word  fraud  means  moral  turpitude 
or  intentional  wrong;  and  that  a  part  of  the  purpose  of  the  statute  was  to  dis- 
courage and  pimish  such  moral  turpitude  or  intentional  wrong." 

§  2789.   "Fraud"  Must  Have  Existed  in  Original  Transaction. — 

And  the  fraud  must  have  existed  in  the  original  transaction  and  not  con- 
sist simply  in  fraudulent  conveyances  to  defeat  the  obligation  nor  of  false 
denials  of  mistake,  etc.,  etc.^'^ 

In  re  Blumberg,  1  A..B.  R.  633,  94  Fed.  476  (D.  C.  Tenn.):  "It  could  not 
possibly,  I  think,  have  any  application  to  a  case  w^ere  the  judgment  is  not 
based  upon  the  fraud  as  a  ground  of  recovery.  *  *  *  Their  suit  was  one  based 
upon  a  just  debt,  having  its  origin  back  of  any  mere  suggestion  of  fraud,  in 
which  there  was  sought  the  incidental  relief  of  setting  aside  a  fraudulent  con- 
veyance. Such  a  fraudulent  conveyance  itself,  under  the  law  of  the  State,  gave 
nobody  a  right  to  a  money  judgment  in  the  first  instance.  It  simply  rendered 
the  sale  void,  and  enabled  any  creditor  against  whom  it  was  declared  void  to 
have  it  set  aside,  just  as  if  it  never  had  been  made,  and  to  reach  the  property 
and  subject  it  to  a  debt  not  created  at  all  by  the  fraudulent  conveyance;  but 
created  prior  thereto,  and  to  obstruct  collection  of  which  the  fraudulent  convey- 
ance was  made.  If  the  fraudulent  vendee  had  disposed  of  the  property,  so  that 
a  judgment  might  be  rendered  against  him  for  the  value  of  the  property,  such 
a  judgment  would  be  for  the  property;  on  the  ground  that  the  fraudulent  sale 

174.  Western  Union  Cold  Storage  Co.  z'.  Hurd,  8  A.  B.  R.  634,  116  Fed.  443 
(D.  C.  Mo.);  In  re  Floyd,  Crawford  &  Co.,  15  A.  B.  R.  277  (Special  Master  N. 
Y.);  compare  [1867]   Xeal  z\  Clark,  95  U.  S.  704. 

175.  Claims  for  Conversions  by  Agents,  Bailees,  etc.,  Not  Entitled  to  Pri- 
ority (unless  fund  can  be  traced). — Such  claims  even  where  not  discharged,  are' 
not,  on  that  account  entitled  to  oriority  of  paj^ment  from  the  dividends.  In  re 
Benedict,  8  A.  B.  R.  463,  468  (N.  Y.  Sup.  Ct.) ;  Claflin  Dry  Goods  Co.  v.'  Eason.  2 
A.  B.  R.  263  (Ref.  Tex.):  Unless  fund  can  be  traced. 


§  2793  EFFe;ct  of  discharge.  1633 

being  void,  it  belonged  to  his  fraudulent  vendor,  and  that  his  dispostion  of  it 
was  a  conversion." 

Western  Union  Cold  Storage  Co.  v.  Hurd,  8  A.  B.  R.  634,  116  Fed.  442  (D. 
C.  i\Io.) :  "The  fact  that  the  defendant,  when  restitution  was  demanded,  denied 
liability,  against  the  great  weight  of  evidence,  could  not  convert  the  wrongful 
detention  of  the  money  into  an  original  positive  fraud,  essential  in  the  creation 
of  a  debt  to  avoid  the  effect  of  a  discharge  in  bankruptcy. 

§  2790.  Judgment  Not  Such  Merger  as  Prevents  Inquiry  into 
Character  of  Fraud. — The  character  of  the  debt,  whether  contracted  in 
a  fiditciary  capacity  and  therefore  not  dischargeable,  is  not  controlled  in 
the  bankruptcy  court  by  the  recitals  of  its  character  in  the  record  of  the 
judgment  obtained  thereon  in  the  state  court. ^"^ 

Division  6. 
Discharge  of  Partnership  and  Individuae  Debts. 

SUBDIVISION  "a." 

Discharge  of  Partnerships. 

§  2791.  Partnerships  Entitled  to  Discharge. — Partnerships  are  en- 
titled to  discharge  and  may  be  denied  discharge,  the  same  as  individuals. 

§  2792.  No  Individual  Discharge  of  Member  unless  Individually 
Adjudged  Bankrupt. — There  can  be  no  discharge  of  the  individual  mem- 
ber  unless   th.e   member  be   individually   adjudicated  bankrupt.^'" 

§  2793.  Act  of  One  Bars  Firm  Discharge,  if  Done  within  Scope  of 
Partnership  Business. — The  act  of  one  partner,  if  done  within  the  scope 
of  the  partnership  business,  will  be  imputed  to  all.^'^ 

Obiter,  In  re  Schultz,  Jr.,  6  A.  B.  R.  91,  lOff  Fed.  264  (D.  C.  N.  Y.) :  "Where 
there  is  fraud  in  partnership  transactions  within  the  scope  of  the  partnership, 

176.  Knott  V.  Putnam,  6  A.  B.  R.  80,  107  Fed.  907  (D.  C.  Vt.)  :  This  case,  in 
substance,  held,  that,  where  in  an  action  in  a  state  court  upon  such  a  debt,  the 
judgment  recites  that  "the  sum  of  which  this  judgment  was  rendered  was  re- 
ceived, and  held  by  the  defendants  in  a  fiduciary  capacity  for  the  plaintiff," 
and  "that  the  cause  of  action  arose^  from  the  willful  and  malicious  act  of  the  de- 
fendants, and  that  they  ought  to  be  confined  in  close  jail,"  this  decision  is  con- 
clusive in  a  court  of  bankruptcy  only  as  to  the  matters  before  the  state  court 
for  decision,  including  whether  the  plaintiff  there  was  entitled  to  recover,  and  for 
how  much,  and  whether  he  was  entitled  to  a  close-jail  certificate  under  the 
state  statutes,  but  does  not  affect  the  right  of  the  bankruptcy  court  to  determine 
whether  execution  awarded  with  the  certificate  upon  it  should  be  used  for  im- 
prisoning the  bankrupts  to  compel  payment,  and  the  bankruptcy  court  has 
jurisdiction  and  authority  to  stay  the  arrest  of  the  bankrupts  upon  such  exe- 
cution. 

Apparently  contra.  Burnham  v.  Pidcock,  5  A.  B.  R.  590,  68  X.  Y.  Supp.  1C07. 
Compare,   ante,   §   2749. 

177.  In  re  Pincus,  17  A.  B.  R.  331,  147  Fed.  621  (D.  C.  X.  Y.) ;  In  re  Hale, 
6  A.  B.  R.  35,  107  Fed.  432  (D.  C.  X.  Car.). 

178.  Compare,  In  re   Hamilton,  13  A.   B.   R.  333,  133   Fed.   823   (D.   C.  X.  Y.). 

2  Rem  B— 28 


1634  REMIXGTON   ON   BANKRUPTCY.  §   2794 

in  which  each  partner  acts  as  the  agent  or  representative  of  all  the  copartners, 
the  fraud  of,  one  is  usually  imputed  to  all.  *  *  *  This  principle  was  applied  by 
the  Supreme  Court  in  the  case  of  Strang  z'.  Bradner,  114  U.  S.  555,  in  holding 
a  discharge  in-.ufficient  to  protect  innocent  partners  from  a  debt  fraudulently 
incurred  by  their  copartner." 

SUBDIVISION    "b." 

Discharge  oe  Partnership  Debts  in  Individual  Bankruptcy  of  a 

Member. 

§  2794.  Discharge  of  Firm  Debts  in  Individual  Bankruptcy  of 
Member. — There  are  different  rulings  as  to  the  effect  of  a  discharge 
granted  in  an  individual  bankruptcy  upon  partnership  debts  of  a  firm  to 
which  the  bankrupt  belonged.^'' ^  Some  courts  have  held  that  where  there 
are  firm  debts  and  firm  assets,  the  discharge  in  the  individual  bankruptcy- 
does  not  operate  to  release  the  bankrupt  from  the  firm  debts. ^^" 

Other  courts  hold  that,  where  there  are  no  firm  assets  and  all  the  part- 
ners are  insolvent,  the  firm  debts  are  discharged  as  against  the  partner  by 
his   individual   bankruptcy.^^^ 

Obiter,  In  re  Hirsch,'3  A.  B.  R.  348,  97  Fed.  571  (D.  C.  N.  Y.):  "*  *  *  in 
my  own  judgment  a  partner  may  at  his  option  proceed  upon  his  individual  peti- 
tion for  his  own  adjudication  and  discharge  without  reference  to  the  other 
partners,  as  under  the  Act  of  1867  (In  re  Abbe,  2  N.  B.  R.  75,  Fed.  Cas.  No.  4; 
In  re  Marks,  Fed.  Cas.  Xo.  9,094;  Crompton  z:  Conkling,  15  N.  B.  R.  417,  420, 
Fed.  Cas.  No.  3408;  *  *  *  ),  where  all  are  insolvent  and  there  are  no  firm 
assets  whatever,  inasmuch  as  partnership  debts  are  all  several,  as  well  as 
joint." 

Contra,  In  re  Morrisoij,  11  A.  B.  R.  498,  127  Fed.  186  (D.  C.  Tex.):  "As- 
suming, as  the  bankrupt  claims,  that  he  seeks  a  discharge  from  partnership 
debts,  his  purpose  cannot  be  accomplished  in  this  proceeding,  although  it  may 
be  true,  as  insisted,  that  the  firm  no  longer  exists,  that  it  is  without  assets,  and 
that  the  firm  debts  are  barred  by  limitation." 

And  still  others  hold  that,  where  there  are  no  assets  and  the  firm  is  dis- 
solved, a  discharge  in  an  individual  bankruptcy  will  release  firm  debts. ^^2 

179.  See  interesting  discussion  of  the  law  on  this  point  as  it  stood  before  the 
passage  of  the  present  act,  the  editor's  note  to  the  case  In  re  Freund,  1  A.  B. 
R.  31. 

180.  In  re  Meyers,  2  A.  B.  R.  707,  96  Fed.  408  (D.  C.  N.  Y.) :  Indeed,  in  this 
case  the  judge  refused  to  grant  discharge.  It  would  seem  he  had  no  right  to 
refuse  to  grant  discharge  on  such  grounds,  but  should  at  least  have  granted  it 
and  left  its  effect  as  an  effective  release  to  be  determined  when  the  debts  were 
sought  to  be   enforced. 

To  same  effect,  compare.  In  re  Meyers.  3  A.  B.  R.  260,  97  Fed-  757  (D.  C. 
N.  Y.);  Dodge  v.  Kaufman,  15  A.   B.   R.   542   (Sup.   Ct.  N.  Y.). 

Compare  apparently  to  same  effect  under  the  law  of  1867:  Amsinck  v.  Bean, 
22  Wall  405;  In  re  Winkens,  2  N.  B.  Reg.  349,  Fed.  Cases  17,875;  In  re  Shepard, 
3  X.  B.  Reg.  172  Fed.  Cases  12,754;  Crompton  z:  Conklin,  15  X.  B.  Reg.  417, 
Fed.  Cases,  3,407,  3,408. 

181.  See  also,  under  act  of  1867,  In  re  Downing,  3  X.  B.  Reg.  748,  Fed.  Cases 
No.  4,044. 

182.  Berry  Bros.  v.  Sheehan,  17  A.  B.  R.  325  (X.  Y.  Sup.  Ct.  App.  Div.). 


§  2795  EFFKCT  o?  discharge;.  1635 

Still  other  courts  hold  that  the  operation  of  the  discharge  can  be  reg- 
ulated by  the  decree  of  discharge  itself. 

As  noted,  ante,  §  2664,  the  effect  of  the  discharge  upon  a  particular  debt 
is  in  general  to  be  determined  at  the  time  it  is  sought  to  enforce  the  debt, 
and  is  not  to  be  regulated  in  the  discharge  decree  itself;  and  the  sole  func- 
tion of  the  court  is  to  grant  or  refuse  the  discharge,  leaving  the  effect  of  its 
decree  to  be  thus  determined  later ;  there  being  the  single  a,pparent  excep- 
tion of  those  cases  where  there  has  been  a  former  decree  refusing  a  dis- 
charge, which,  being  res  judicata  as  to  the  right  to  discharge  rather  than 
as  to  its  effect,  should  be  pleaded  in  opposition  to  the  discharge  itself  and 
the  discharge  decree,  in  that  instance,  be  so  modified  as  to  except  the 
former  debts. ^^-^ 

Still  other  courts  hold  that,  unless  the  individual  bankrupt  sched- 
ules all  firm  debts  and  makes  his  partner  a  party,  the  discharge  will  be 
granted  only  with  the  limitation  that  it  shall  not  affect  firm  debts. ^^^ 

And  still  other  courts  have  held,  that  in  no  event  can  a  partner  in  his 
individual  bankruptcy  proceedings  obtain  a  discharge  from  debts  of  a 
partnership  of  which  he  was  a  member,  unless  his  partner  be  "made  a 
party."i85 

Compare,  query,  obiter,  Jarecki  Mfg.  Co.  v.  McElwaine,  5  A.  B.  R.  751,  754,  107 
Fed.  249  (C.  C.  Ind.):  "It  is  not  necessary  to  determine  whether,  as  intimated 
•  in  a  number  of  cases  cited  by  counsel  for  the  plaintiff,  if  objection  had  been 
made  pending  the  ban'kruptcy  proceeding  on  the  ground  that  the  other  partner 
had  not  been  made  a  party,  the  court  would  have  ordered  that  to  be  done,  and 
upon  a  failure  to  comply  with  such  order,  would  have  dismissed  the  proceed- 
ing or  refused  a  discharge." 

And  unless  the  partnership  itself  also  be  adjudicated  bankrupt. ^^'^  But 
it  was  held,  he  might  amend  to  bring  in  the  partner. ^■'^' 

Still  other  courts  have  held  that  where  an  individual's  bankruptcy 
petition  is  silent  as  to  the  existence  of  firm  creditors,  and  so  also  are  the 
notices  to  creditors,  the  discharge  will  be  granted,  but  it  will  be  at  the  risk 
of  its  being  ineffectual  to  bar  firm  debts.  This  states  the  correct  rule  as  to 
the  granting  or  withholding  of  the  discharge  itself. ^^^ 

§  2795.  Individual  Liability  for  Firm  Debts,  Discharged  if  Firm 
Debts  "Duly"  Scheduled  in  Individual  Bankruptcy,  Irrespective  of 
"Firm  Assets,"  etc. — The  true  doctrine,  however,  seems  to  be  that  part- 

183.  See  ante,  §§  2664,  2665,  2666. 

184.  In  re  Morrison,  11  A.  B.  R.  498,  127  Fed.  186  (D.  C.  Tex.).  Apparently, 
also,  see  In  re  Carmichael,  2  A.  B.  R.  815,  96  Fed.  594  (D.  C.  Iowa).  Also,  In 
re  Laughlin.  3  A.  B.  R.  1,  96  Fed.  589  (D.  C.  Iowa).  Compare,  In  re  Hartman, 
3  A.  B.  R.  65,  96  Fed.  593  (D.  C.  Iowa).  But  note  In  re  McFaun  3  A.  B.  R. 
66,  96  Fed.  592  (D.  C.  Iowa).     Stating  the  truer  rule. 

185.  In  re  Freund,  1  A.  B.  R.  25  (Ref.  Iowa):  This  was  a  case  where  neither 
the  bankrupt  nor  the  partnership  had  any  assets. 

186.  Query,  obiter.  In  re  Levy,  2  A.  B.  R.  27,  95  Fed.  812  (Ref.  N.  Y.) ;  In  re 
Ottoman,  2  A.  B.  R.  407,  95  Fed.  263  (D.  C.  N.  Y.). 

187.  In  re  Freund,  1  A.  B.  R.  25   (Ref.  Iowa). 

188.  In  re  McFaun  3  A.  B.  R.  66,  96  Fed.  592  (D.  C.  Iowa). 


1636  REMINGTON   ON    BANKRUPTCY.  §    2795 

nership  debts  are  discharged  by  the  individual  bankruptcy,  provided  they 
have  been  duly  scheduled — that  is  to  say,  properly  described^and' provided 
they  have  been  so  scheduled  in  time  for  proof  and  allowance,  and  with  the 
name  of  the  creditor,  if  known,  etc.,  or  if  the  firm  creditors  have  had  ac- 
tual knowledge  of  the  bankruptcy;  that  the  limits  of  the  discharge  as  to 
its  effect  upon  particular  debts  may  not  be  determined  in  advance  by  qual- 
ifying the  decree  (save  and  except  as  to  debts  in  -existence  when  any 
former  discharge  was  refused)  :  that  its  limits  must  be  left  to  the  deter- 
mination of  the  court  wherein  it  is  sought  to  enforce  the  old  debt;  that 
the  bankruptcy  court  has  ample  power  to  require  the  firm  debts  and  assets 
to  be  "duly  scheduled"  to  the  end  that  partnership  creditors  may  have  full 
notice;  and  that  all  this  is  irrespective  of  the  question  as  to  whether  there 
are  or  are  not  firm  assets,  the  firm  assets  being  subject  to  such  administra- 
tion as  is  granted  by  §  5  and  being  properly  regarded  in  much  the  same 
light  as  any  other  assets  in  which  the  bankrupt  may  have  a  joint  interest 
with  others. 

Deaf  &  Dumb  Institute  v.  Crocket,  17  A.  B.  R.  240  (N.  Y.  Sup.  Ct.  App.  Div.): 
"It  is  evident  that  an  individual  may  be  a  member  of  a  solvent  firm  and  at  the 
same  time  be  insolvent  himself. 

"This  rule  shows  quite  clearly  that  the  firm  cannot  be  declared  insolvent  unless 
it  is  such  in  fact.  In  such  circumstances,  unless,  therefore,  the  individual  may 
by  his  own  petition  obtain  a  discharge  in  bankruptcy,  even  though  insolvent,  he 
could  obtain  no  relief  under  the  Bankruptcy  Act. 

"Where  a  firm  is  solvent  and  an  individual  member  thereof  is  insolvent  and 
desires  to  be  discharged  in  bankruptcy,  it  is  manifest  that  he  is  entitled  to  such 
discharge  and  that  the  business  of  the  firm  should  be  wound  up  and  his  surplus 
interest  applied  in  liquidation  of  his  individual  debts.    *    *   * 

"It  would  therefore  seem  clear  that  an  individual  member  of  a  firm  may,,  on 
his  own  independent  application,  made  in  his  own  right,  obtain  a  discharge  not 
only  from  his  individual  debts  but  from  his  firm  liabilities,  and  that  the  exist- 
ence or  nonexistence  of  firm  assets  is  immaterial  to  the  decision  of  this  ques- 
tion. This  view  was  expressed  by  the  Supreme  Court  of  Wisconsin  in  Curtiss 
V.  Woodward  (supra);  but  it  is  opposed  by  many  easels  in  the  Federal  District 
Courts  and  some  in  this  district  which  appear  to  be  to  the  effect  that  the  dis- 
charge may  he  complete  or  only  partial,  and  that  it  is  complete  against  all 
creditors  when  the  firm  is  adjudged  bankrupt  or  there  are  no  firm  assets  and 
the  firm  debts  have  been  scheduled  as  such,  but  partial  only  and  limited  to  the 
individual  creditors  when  the  individual  alone  is  adjudged  bankrupt, 
and  especially  if  there  are  firm  assets.  (In  re  Kaufman,  14  A.  B.  R. 
393,  136  Fed.  262;  In  re  Awe,  2  N.  B.  R.  75;  In  re  Knight,  8  N.  B.  R. 
436;  Hudgins  v.  Lane,  et  al.,  No.  6,827,  vol.  12,  Fed.  Cas.,  p.  800;  Matter  of 
Fergenbaum,  7  Am.  B.  R.  339;  In  re  Conkling,  et  al.,  No.  3,408,  vol.  6.  Fed. 
Cas.  p  850,  and  id.  No.  3407,  vol.  6.,  Fed  Cas.  848;  Trimble  v. 
More,  47  Supr.  Ct.  340;  In  re  Hirsch,  et  al.,  3  Am.  B.  R.  344,  97  Fed.  571;  Dodge 
V.  Kaufman,  15  Am.  B.  R.  542,  46  j\Iisc.  248,  following  In  re  Myers,  3  Am.  B.  R. 
260).  It  is  difficult  to  reconcile  this  view  if  it  relates  to  a  discharge  granted  in 
the  general  language  of  the  statute  with  the  plain  mandatory  language  of  §  17 
of  the  Bankruptcy  Act,  that  'a  discharge  in  bankruptcy  shall  release  a  bank- 
rupt from  all  r^f  his  provable  debts'  with  certain  exceptions  not  here  involved. 
Since   partnership   debts   arc   provable   against   a   bankrupt's   individual   estate   it 


§    2796  EFFECT  OF  DISCHARGE.  1637 

is  difficult  to  see  why  they  are  not  discharged  by  a  discharge  which  follows  the 
language  of  the  statute.  It  appears  to  me  to  be  a  question  of  jurisdiction,  and 
that  where,  as  in  this  case,  the  bankruptcy  court  acquired  jurisdiction  and 
granted  a  complete  discharge  under  the  statute,  without  attempting  to  make 
any  reservation,  that  it  slfbuld  be  given  effect  as  such.  It  may  well  be  that  if 
the  adjudication  and  discharge  in  bankruptcy  are  expressly  limited  to  the  in- 
dividual debts  that  the  discharge  would  not  relieve  the  bankrupt  from  liability 
on  firm  obligations,  and  if  that  is  what  is  meant  by  the  decisions  on  tha't  sub- 
ject, to  which  reference  has  been  made,  they  are  doubtless  sound.  *  *  *  it 
was  doubtless  competent  for  the  Supreme  Court  of  the  United  States  by 
virtue  of  the  authority  conferred  by  §  16  of  the  Bankruptcy  Act,  to  prescribe 
that  a  petitioner  should  state  in  his  petition  whether  or  not  he  is  a  member  of 
a  copartnership  the  business  of  which  has  not  been  finally  settled,  and  if  so, 
his  interest  therein,  and  whether  there  are  firm  creditors  from  whom  he  seeks 
a  discharge,  and  firm  assets  unadministered  which  could  then  be  reached  under 
subdivision  'h'  of  §  5;  and  doubtless  the  bankruptcy  court  could  adopt  rules  on 
the  same  subject  not  inconsistent  with  those  adopted  by  the  Supreme  Court. 
The  Supreme  Court  has  prescribed  forms  for  petitions  by  individuals  and  for 
petitions  by  copartnership  firms,  but  I  find  no  provision  in  these  forms  requir- 
ing that  in  an  individual  petition  it  must  be  set  forth  whether  the  applicant  is 
a  member  of  a  copartnership  firm,  and  I  find  nothing  in  the  rules  prescribed 
by  the  Supren.e  Court  on  the  subject,  or  dealing  with  the  subject  of  whether 
in  any  circumstances  the  discharge  may  be  partial  and  not  complete.  I  am  of 
opinion,  therefore,  that  no  question  of  jurisdiction  is  presented,  and  that,  at 
most  a  suspicion  is  cast  on  the  regularity  of  the  petitioner's  bankruptcy  pro- 
ceedings according  to  some  of  the  Federal  decisions;  but  even  that  depends 
upon  there  being  a  partnership  business  which  has  not  been  finally  settled  and 
on  this  judgment  being  a  partnership  obligation.  In  these  circumstances  I 
think  the  true  rule  is,  and  that  the  tendency  of  the  decisions  in  the  State  courts, 
at  least,  is  toward  holding  that  where  the  court  acquires  jurisdiction  and  grants 
a  full  discharge  in  the  language  of  the  statute  from  all  provable  debts  properly 
scheduled,  not  specially  excepted,  that  joint  as  well  as  individual  debts  are 
discharged." 

§  2796.  Firm  Debts  Provable  Debts  of  Each  Member,  and  So  Far 
as  Affect  Individual,  Are  Discharged  by  Individual's  Discharge. — 

Firm  debts  are  provable  debts  also  of  each  member  as  an  individual  bank- 
rupt, and  the  creditors  of  a  partnership  are  also  creditors  of  each  partner ; 
and  the  partnership  debts  are  discharged,  so  far  as  they  are  individual  lia- 
bilities, by  that  partner's  discharge  in  individual  bankruptcy  proceedings. 
It  is  now  beyond  question  that  firm  debts  are  provable  against  a  part- 
ner in  individual  proceedings,  and  consequently  dischargeable  therein, ^^^ 

Jarecki  Mfg.  Co.  v.  McElwaine,  107  Fed.  249,-5  A.  B.  R.  751  (C.  C.  Ind.): 
'There  is   some   disagreement  in   the   authorities  as   to   whether  a  discharge   of 

189.  See  ante,  "Distribution  in  Partnership  Cases,"  §  2230.  et  seq.  Impliedly, 
In  re  Hartman,  3  A.  B.  R.  65,  96  Fed.  593  (D.  C.  Iowa") ;  impliedly,  In  re 
McFaun,  3  A.  B.  R.  66,  96  Fed.  592  (D.  C.  Iowa);  Deaf  &  Dumb  Inst.  v. 
Crockett,  17  A.  B.  R.  240  (N.  Y.  Sup.  Ct.  App.  Div.) ;  compare,  analogously, 
In  re  Bates,  4  A.  B.  R.  56,  100  Fed.  263  (D.  C.  Vt.) ;  [1867]  In  re  Downing,  3 
B.  Reg.  784.  Fed.  Cases  4,044;  [1867]  In  re  Stevens.  5  B.  Reg.  112.  Fed.  Cases 
13.393;  [1867]  In  re  Frear,  1  B.  Reg.  663,  Fed.  Cases  5.074;  [1867]  In  re  Grady, 
3  B.  Reg.  227,- Fed.  Cases  5,654;  [1867]  In  re  Abbe,  2  B.  Reg.  75,  Fed.  Cases  4; 
[1867]  In  re  Leland,  5  B.  Reg.  222. 


1638  REMINGTON    ON   BANKRUPTCY.  §    2796 

an  individual  partner  releases  him  from  liability  upon  partnership  debts.     The 
great  weight  of  authority  is  in  favor  of  the  doctrine   that  the  discharge   of  a 
partner  on  his  individual  petition  operates  as  a  release  alike  from  his  individual 
and  his  partnership  indebtedness.     The  cases  which  hold  to  the  contrary  seem 
to  be  based  upon  a  misconception  of  the  extent  of  the  rights  of  a  trustee  over 
the  bankrupt's  estate,  and  as  to  the  effect  upon  the  firm  of  the  bankruptcy  of 
one  of  its  members.    The  cases  holding  that  a  discharge  granted  *to  one  member 
of  a  firm  does  not  release  him  from  partnership  indebtedness,  where  he  alone 
is  adjudged   a   bankrupt,   proceed   on   the   principle   that   the  trustee   could   not 
acquire  possession  of  and  administer  the  assets  of  the  firm.     In  so  holding  it 
si^ems   to   have   been   overlooked    that   the  .bankruptcy   of   one   member   is    ipso 
facto  a  dissolution  of  the  firm,  and  that,  while  the  solvent  partner  would  be  al- 
lowed to  administer  the  partnership  assets,  yet  the  trustee  in  bankruptcy  is  en- 
titled to  the  bankrupt's  share  of  the  partnership  assets  after  the  payment  of  the 
partnership  debts.     The  separate  estate  of  the  bankrupt  partner,  and  his  bene- 
ficial interest  in  the  firm  after  the  payment  of  firm  debts,  is  to  be  administered 
by  the  trustee  for  the  payment  of  the  bankrupt's  individual  debts.     The  adjudi- 
cation of  one  partner  as  a  bankrupt  brings  within  the  jurisdiction  of  the  court 
his  entire  estate  for  administration,  and  if,  after  the  payment  of  his  individual 
j^lebts  out  of  his  individual  estate,  any  surplus  remains,  it  will  be  applicable  to 
the    payment    of   firm    indebtedness.      For    the    purpose    of   reaching    any    such 
surplus,   firm   creditors  may  prove  against  the   estate   of  the   bankrupt  partner 
•i=    *    *    ^ir.d,    *    *    *    the  discharge  of  one  partner  releases  him  from  all  partner- 
ship indebtedness.     The  provision  of  §  5,  par.  'h',  of  the  Act  of  1898,  that  where 
one  member  of  a  firm,  but  not  all,  becomes  bankrupt,  the  partners  not  adjudged 
bankrupt  shall  wind  up  the  business  and  account  to  the  trustee  for  the  bank- 
rupt's share  in  the  firm,  although  it  introduces  no  new  rule  of  law,  does,  how- 
ever,   clearly   show   that   all   the   bankrupt's    property — his    individual    assets    as 
well  as  his  beneficial  interest  in  the  partnership  assets — passes  to  the  trustee. 
As   that   section   provides    a   means    for    reaching   this   beneficial   interest,    there 
would  seem  to  be  no  reason  for  refusing  a  bankrupt  a  discharge  which  will  re- 
lease   him   from    his    partnership    liability    on    the    ground    that    his    partnership 
assets  are  not  £.ssigned  to  and  controlled  by  his  tru'stee,  to  be  used  for  the  bene- 
fit of  the  partnership  creditor*,  because  the  trustee  having  a  right  to  his  bene- 
ficial interest  in  the  partnership'assets,  and  the  bankrupt  law  providing  a  means 
for  the  collection  of  that  interest,  everything  in  which  the  partnership  creditors 
might  have  a  pecuniary  interest  passes  to  the  trustee  by  virtue  of  the  adjudica- 
tion of  the  partner  as  a  bankrupt.     It  would  seem  to  be  impossible  to  consider 
the   provisions   of  §   5,   par.   'h',   with   the    general   intent   of   the   law   to    release 
a  bankrupt  from  all  his  indebtedness  existing  at  the  time  of  the  commencement 
of  the  proceedings  in  bankruptcy,   and   especially   with   the   provisions   of   §   16, 
providing  thft  the  release  of  the  bankrupt  by  a  discharge  shall  not  alter  the 
liability   of   a   partner   of   the   bankrupt,   without   reaching   the    conclusion'  that 
one  member  of  a  firm  may  be  adjudged  a  bankrupt,  that  the  partnership  cred- 
itors may  prove  their  claims  against  his  estate,  and  that  a  discharge  granted  to 
one  member  of  a  firni  releases  him  from  all  partnership  as  well  as  individual 
indebtedness.     And  this  result  seems  to  be  fortified. by  §  5,  par.  'g',  providing 
that  the   court   may  permit  the   proof  of  the   claims  of  the  partnership   estate 
aaainst  the  individual  estate,  and  vice  versa,  and  may  marshal  the  assets  of  the 
partnership  estate  and  the  individual  estates  so  as   to  prevent  preferences  and 
secure  an  equitable  distribution  of  the  property  of  the  several  estates. 

Loomis  V.  Wallblom,  13  A.  B.  R.  687  (Sup.  Ct.  Minn.):  "The  discharge  did 
not  purport  to  forever  release  the  bankrupt  from  all  his  debts -and  liabilities, 
but  only  from  all  such  'debts  and  claims'  as  were  by  said  Bankruptcy  Act  'm.Tie 


§  2796  EFP'ECT  OF  discharge;.  1639 

provable  against  his  estate!'  That  the  debt  was  one  which  might  have  been 
proved  in  bankruptcy  proceedings  against  the  estate  of  the  individual  partner 
is  evidenc  from  the  whole  tenor  of  the  law,  and  especially  from  chapters  1,  3, 
§§  1,  4,  30  Stat.  544,  547,  *  *  *  chapter  3,  §§  4,  5,  of  that  law,  30  Stat.  547. 
*  *  *  See,  also,  §  16,  30  Stat.  *  *  *  Indeed,  subdivision  'g'  of  said  §  5  expressly 
provides  that  the  court  may  'permit'  the  proof  of  the  claim  against  the  in- 
dividual estates  and  vice  versa  and  may  marshal  the  assets  of  the  partnership 
estates  and  the  individual  estates  so  as  to  prevent  preferences  and  secure  the 
equitable  distribution  of  the  property  of  the  several  estates.'    *    *   * 

"Such  a  judgment  as  the  one  here  sought  to  be  extended,  filed  in  the  bank- 
ruptcy proceedings,  might  under  appropriate  conditions,  have  been  paid  in  full 
or  in  part  by  the  application  thereto  of  the  whole  or  a  proper  part  of  the  funds 
in  the  hands  of  the  respondent's  trustee  in  separate  bankruptcy  proceedings. 
Its  full  discharge  as  an  individual  liability  on  a  firm  debt  may  accordingly  be 
had  in  bankruptcy  proceedings." 

In  re  Kaufman,  14  A.  B.  R.  393,  136  Fed.  262  (D.  C.  N.  Y.)  :  "The  judgment 
obtained  against  him  was  a  personal  judgment  against  himself  and  his  partner 
on  account  of  the  indebtedness  contracted  by  him  and  his  partner  in  the  course 
of  partnership  business.  Both  the  indebtedness  and  the  judgment  subjected 
to  its  payment  tha  assets  of  the  firm,  and  the  individual  property  of  each  debtor 
against  whom  the  judgment  was  recovered.  Therefore  Kaufman  was  a  judg- 
ment debtor,  first,  as  a  partner  of  the  firm;  second,  as  an  individual.  The  peti- 
tion in  bankruptcy  was  not  for  the  purpose  of  procuring  the  administration  of 
the  assets  of  the  firm,  as  a  distinct  entity,  nor  for  the  purpose  of  procuring  the 
discharge  of  the  firm  as  such;  but  it  was  for  the  purpose  of  administering  the 
personal  assets  of  a  person,  who  was  a  partner,  and  for  the  discharge  of  such 
persons  from  all  debts  against  him  as  an  individual,  however  such  debts  were 
created.  *  *  *  The  order  of  discharge  would  provide  for  his  discharge,  as  an 
individual,  from  any  individual  responsibility  growing  out  of  the  partnership 
liability." 

[1867]  Wilkms  z'.  Davis,  15  B.  Reg.  60,  Fed.  Cas.  17,664:  "It  has  been  an- 
nounced of  late,  chiefly  in  dicta,  that  all  the  members  of  a  firm  must  become 
bankrupt  in  order  that  the  assignees  should  be  able  to  deal  with  the  joint  stock, 
or  that  a  discharge  should  be  obtained  from  joint  debts.  In  re  Little,  1  B.  R. 
341;  2  Ben.  186;  Fed.  Cas.  No.  8390;  In  re  Winkins,  2  id.  349;  S.  C,  Fed. 'Cas. 
17,875;  Hudgins  v.  Lane,  11  id.  462;  12  Hughes  361;  S.  C,  Fed.  Cas.  6,827.  Such, 
however,  is  not  the  law,  as  I  understand  it.  First.  It  has  been  settled  for  more 
than  a  century  and  a  half,  that  if  one  member  of  a  firm  becomes  bankrupt  and 
obtains  his  discharge,  he  is  released  from  all  his  debts  joint  and  separate.  Ex 
p.  Yale,  3  P.  Wms.  24  note  A.  This  leading  case  is  the  law  of  England  today; 
it  has  not  been  necessary  to  reaffirm  it;  but  the  doctrine  has.  been  acted  on  and 
applied  in  various  ways.  Where  the  bankrupt  was  a  member  of  a  company 
which  was  for  some  purpose  a  partnership,  the  court  extended  the  rule  to  him. 
Thomas  v.  Harding,  3  C.  B.  (N.  S.)  254.  So  the  proceedings  and  pleadings  in 
such  cases  have  repeatedly  recognized  the  law  that  one  partner  is  discharged 
by  his  separate  certificate;  such  as  Bovill  v.  Wood,  2  Maule  &  S.  23;  Noke  v. 
Ingham,  1  Wils.  89;  Booth  v.  Middlecoat,  6  Bing.  445.  In  this  last  case,  it 
does  not  distinctly  appear  whether  the  bankrupt  was  a  partner  or  a  joint  con- 
tractor, but  the  very  absence  of  information  shows  the  point  to  be  immaterial. 
See  Lindley,  Partnership;  Collyer,  Part.  (5th  Am.  Ed.),  §  858;  Mont.  &  Ayr. 
Bankrupt  Law  (^d  Ed.),  748;  1  Deacon,  id.  797;  Robson,  id.  (2d  Ed.)  554.  If 
a  creditor  who  had  proved  his  debt  against  a  bankrupt  partner,  brought  an 
action  at  law  against  the  solvent  members  of  the  firm,  and  joined  the  bank- 
rupt as  a  defendant,  which  at  law  he  was  bound  to  do,  for  reasons  not  now 


1640  REMINGTON    ON    BANKRUPTCY.  ^    2797 

necessary  to  be  stated,  yet  the  Lord  Chancellor  would  require  him  to  give 
security  to  the  bankrupt  against  all  damages  and  costs.  Ex  p.  Read,  1  Rose, 
460;  Ex  p.  Stanton,  1  M.  D.  &  De  G.  273.  Not  only  will  the  joint  creditors  be 
bound,  but  the  bankrupt's  co-partners  equally;  because  they  may  pay  the  joint 
debts  and  prove  against  the  bankrupt's  estate  the  equitable  debt  arising  from 
any  deficiency  in  his  accounts.  Wood  v.  Dodgson,  2  Maule  &  S.  195;  Afflalo  v. 
Foudrinier,  6  Bing.  306;  Butcher  v.  Forman,  6  Hill  583.  Second,  It  is  equally 
well  settled,  and. is  a  necessary  part  of  the  theory,  that  the  bankruptcy  of  one 
partner  dissolves  the  partnership,  except  for  the  purpose  of  closing  their  af- 
fairs, and  that  the  assignee  is  tenant  in  common  with  the  solvent  partner  of  the 
joint  stock.  It  usually  happens  that  the  latter  will  be  in  possession  of  the 
stock,  and  his  possession  will  not  be  disturbed  excepting  for  good  reason;  and, 
on  the  other  hand,  if,  in  this  case,  the  assignee  is  in  possession,  he  will  not 
be  disturbed  wilhout  good  cause.  A  court  of  equity  has  undoubted  power  to 
intrust  either  the  solvent  partner  or  the  assignee  with  the  exclusive  control 
of  the  settlement;  but  if  no  order  is  made,  the  assignee,  having  possession,  will 
go  on  and  collect  the  joint  assets,  and  pay  the  joint  debts,  by  way  of  dividends 
to  those  joint  creditors  who  come  in  and  prove.  See  West  v.  Skip,  1  Ves. 
(Sen.)  239;  Button  v.  Morrison,  17  Ves.  193;  Murray  v.  Murray,  5  Johns.  Ch. 
60;  Parker  v.  INIuggridge,  2  Story  334;  Ayer  v.  Brastow,  5  Law  Rep.  498; 
Amsinck  v.  Bean,  11  N.  B.  R.  495;  22  Wall  395;  S.  C,  10  Blatch  361. 

"It  is  argued  that  the  assignee  of  one  partner  cannot  interfere  with  the 
affairs  of  the  firm,  unless  the  decree  in  bankruptcy  or  the  assignment  expressly 
confers  upon  him  such  right  or  conveys  to  him  such  a  title.  But  no  point  of 
the  sort  was  taken  in  any  of  the  cases  above  mentioned.  On  the  contrary,  the 
facts  in  all  of  them  simpl}^  show  that  one  partner  was  bankrupt.  This,  of 
necessity,  disposes  of  all  his  property,  and  one  part  of  that  is  his  interest  in 
anj^  firm  or  any  number  of  firms  of  which  he  was  a  member.  It  seems  to  be 
thought  that  one  may  be  bankrupt  and  not  bankrupt  at  the  same  time;  bankrupt 
as  an  individual  and  not  so  as  a  member  ©f  a  firm.  This  is  impossible.  A 
man  may  be  bankrupt  when  the  other  members  of  his  firm  are  solvent,  and 
when  the  joint  assets  are  in  excess  of  the  joint  debts,  because  he  may  owe 
separate  debts  beyond  the  amount  of  his  separate  property  added  to  his  share 
in  a  solvent  joint  business.  In  such  a  case,  the  assignee  may  properly  make  a 
settlfement  with  the  solvent  partner,  by  which  the  joint  debts  are  paid  by  the 
latter,  and  the  value  of  the  bankrupt's  interest  in  the  firm  is  paid  over  to  the 
assignee  for  distribution  among  his  separate  creditors.  If  the  balance  is  against 
the  bankrupt,  the  solvent  partner,  upon  paying  the  joint  debts,  could  have 
proved  for  it,  and  have  received  a  dividend  from  the  separate  estate,  as  I  have 
already  shown.  But  the  partner  would  be  no  less  bankrupt  in  either  case,  and 
his  assignee  would  have  no  other  or  different  title,  so  far  as  his  estate  was  con- 
cerned, than  if  all  the  members  of  the  firm  were  bankrupt." 

§  2797.  But  Partnership  Debts  to  Be  "Duly  Scheduled,"  Else  Not 
Affected  by  Individual  Discharge. — But  partnership  debts  are  not  dis- 
charged by  the  discharge  granted  in  the  individual  proceedings  of  one  part- 
ner, unless  the  partnership  debts  have  been  "duly"  scheduled ;  that  is  to 
say,  aptly  described  with  addresses  duly  given,  under  the  limitations  here- 
tofore laid  down.^^*^ 

190.  Impliedly,  In  re  Meyers,  3  A.  B.  R.  260,  2  N.  B.  N.  &  k.  Ill  (D.  C.  N. 
Y.):  compare,  In  re  Kaufman,  14  A.  B.  R.  393,  1136  Fed.  262  (D.  C.  N.  Y.); 
impliedly.  Deaf  &  Dumb  Inst.  v.  Crockett,  17  A.  B.  R.  240  (N.  Y.  Sup.  Ct.  Apr-. 
Div.). 


§  2798  EFFECT  OF  DISCHARGE.  1641 

And  the  question  as  to  whether  firm  debts  will  be  discharged  in  individ- 
ual bankruptcies  is  really  more  one  of  "due"  scheduling  than  anything  else. 

Impliedly,  In  re  Laughlin,  3  A.  B.  R.  1,  96  Fed.  591,  592  (D.  C.  Iowa):  "To 
avoid  this  result,  provision  is  made  in  the  last  clause  of  §  5  for  adjudging  a 
part  only  of  the  members  of  a  firm  to  be  bankrupt,  and  a  mode  is  provided  for 
reaching  their  mterest  in  the  partnership  property  and  subjecting  it  to  admin- 
istration by  the  Bankruptcy  Court;  and,  as  the  act  has  thus  made  provision  for 
giving  to  the  creditors  the  benefit  of  the  bankrupt's  interest  in  the  firm  prop- 
erty and  business,  the  bankrupt  partners  will  be  entitled  to  a  discharge  effectual 
against  the  firm  creditors.  To  become  entitled,  however  to  a  discharge  barring 
the  firm  creditors,  under  such  circumstances,  the  proper  foundation  must  be 
laid  in  the  proceedings  instituted  on  behalf  of  the  bankrupt  partner.  In  the  pe- 
tition originally  filed  it  should  be  averred  that  the  petitioner  is  indebted  in  his 
individual  capacity,  if  such  be  the  fact,  and  also  as  a  member  of  a  firm,  naming 
it,  and  giving  the  names  of  the  several  partners;  and  the  petition  should  pray 
for  a  discharge  from  the  firm  as  well  as  his  individual  debts.  To  this  petition 
should  be  attached  the  proper  schedules,  setting  forth  the  firm  debts,  the  firm 
property,  if  any,  and  all  other  matters,  the  same  as  is  required  in  the  case  of 
a  proceeding  brought  by  all  the  partners.  Schedules  of  the  individual  prop- 
erty and  debts  should  also  be  attached  to  the  petition.  In  the  notice  to  the 
creditors  to  attend  the  first  meeting,  it  should  be  stated  that  the  firm,  as  well 
as  the  individual  creditors,  are  notified  to  attend,  as  the  bankrupt  is  seeking  a 
discharge  from  both  classes  of  claims;  and  also  in  the  petition  for  a  discharge 
a  release  from  the  firm  as  well  as  the  individual  debts  should  be  asked;  and  in 
the  notice  to  creditors  of  the  filing  and  hearing  upon  the  petition  for  discharge 
the  fact  that  a  release  from  the  firm  debts  is  prayed  for  should  be  specifically 
set  forth.  Notice  of  the  filing  of  the  petition  and  of  the  creditors'  meetings 
should  be  sent  to  the  nonjoining  partner  or  partners,  in  order  that,  if  necessary, 
they  may  appear  and  protect  their  rights  and  interests  in  the  proceedings.  The 
attention  of  the  referees  in  this  district  is  called  to  this  matter,  and  they  are 
instructed  that  it  is  their  duty  to  examine  all  petitions  referred  to  them,  and,  if 
it  appears  that  the  bankrupt  is  seeking  a  discharge  from  firm  as  well  as  in- 
dividual debts,  then,  if  necessary,  the  petition  arid  schedules  must  be  amended 
so. as  to  comply  with  the  foregoing  requirements  before  the  adjudication  is 
entered  thereon;  and  care  must  be  taken,  in  framing  the  notices  to  creditors, 
that  they  conform  to  the  views  herein  expressed." 

Inferentially,  In  re  Morrison,  127  Fed.  186,  11  A.  B.  R.  498  (D.  C.  Tex.): 
"Under  §  5,  clause  'h,'  of  the  Bankrupt  Act  of  July  1,  1898,  a  part  only  of  the 
members  of  a  firm  may  be  adjudged  bankrupt;  but  such  a  proceeding  should 
be  predicated  upon  appropriate  pleadings,  with  proper  parties,  and  creditors 
should  have  due  notice  that  partnership  effects  are  being  administered,  and  that 
3  discharge  i"?  sought  from  partnership  indebtedness." 

§  2798.  And  Notices  to  Creditors  Must  Give  Notice  of  Firm  Debts 
and  That  Discharge  Therefrom  Sought.— Unless  the  notices  to  cred- 
itors give  notice  of  the  firm  debts,  and  that  discharge  therefrom  is  sought, 
firm  debts  will  not  be  discharged. ^^^ 

191.    In  re  Russell.  3  A.  B.  R.  91,  97  Fed.  32  (D.  C.  Iowa).     But  compare.  In 
re  Kaufman,  14  A.   B.   R.  393,  136   Fed.  262    (D.   C.  N.  Y.) ;   In  re   Hartman,   3 
A.  B.  R.  65,  96  Fed.  593   (D.  C.  Iowa);  In  re  McFaun,  3  A.  B.   R.  66,  96  Fed." 
592  (D.  C.  Iowa). 


1642  REMINGTON   ON   BANKRUPTCY.  §    2804 

In  re  ^Morrison,  11  A.  B.  R.  499,  127  Fed.  186  (D.  C.  Tex.):  "*  *  *  and 
creditors  should  have  due  notice  that  partnership  effects  are  being  administered 
and  that  a  discharge  is  sought  from  partnership  debts." 

But  it  is  a  qtiestion  whether  it  is  necessary  to  mention  that  they  are  firm 
debts  and  specifically  to  name  the  firm.^^^ 

§  2799.  Petitions  for  Adjudication  and  Discharge  Each  to  Men- 
tion Firm  Debts  and  Pray  for  Discharge  Therefrom. — The  petition 
for  adjudication,  and  the  petition  for  discharge  also,  should  mention  the 
firm  debts  and  pray  for  their  discharge. ^^^ 

§  2800.  And  Firm  Property  to  Be  Described. — And  the  firm  prop- 
erty must  also  be  described.  It  is  like  other  property  in  which  the  individ- 
ual bankrupt  may  have  a  joint  interest. ^^i 

§  2801.  Amendment  to  Include  Discharge  from  Firm  Debts, 
Where  Already  Duly  Scheduled. — But  if,  in  an  individual  bankruptcy, 
firm  debts  have  been  duly  scheduled,  the  discharge  decree  may  be  so 
amended  as  to  show  that  the  bankrupt  is  discharged  as  an  individual  from 
any  individual  liability  on  account  of  the  debts  of  the  firm.^^^ 

§  2802.  Even  after  Term  at  Which  Discharge  Granted. — And  such 
amendment  may  be  made  after  the  term  at  which  the  discharge  was 
granted. ^^*^ 


Discharge  of  Individual  Debts  in  Partnership  Bankruptcies. 

§  2803.  Where  Individuals  Adjudged  Bankrupt  with  Partnership, 
Individual  Debts  Discharged. — Where  the  individual  members  of  the 
partnership  have  been  adjudged  bankrupt  along  widi  the  partnership  itself, 
they  may  be  discharged  from  their  debts  as  individuals. 

§  2804.  Where  Not  So  Adjudged,  Individual  Debts  Not  Dis- 
charged.— Where   the   individual  members  of   the  partnership  have  not 

192.  Compare,  apparently  to  same  effect  that  it  is  not,  Deaf  &  Dumb  Inst. 
V.  Crockett,  17  A.  B.  R.  240  (X.  Y.  Sup.  Ct.  App.  Div.). 

193.  In  re  McFaun,  3  A.  B.  R.  66.  96  Fed.  592  (D.  C.  Iowa);  In  re  Russell,  3 
A.  B.  R.  91.  97  Fed.  ?>2  (D.  C.  Iowa);  In  re  Meyers.  3  A.  B.  R.  260,  2  N.  B.  N. 
&  R.  Ill  (D.  C.  N.  Y.);  In  re  Morrison,  11  A.  B.  R.  499,  127  Fed.  186  (D.  C. 
Tex.).  But  compare,  In  re  Kaufman,  14  A.  B.  R.  393,  136 'Fed.  262  (D.  C.  X. 
Y.).  But  compare,  that  no  such  rule  prescribed,  Deaf  &  Dumb  Inst.  v.  Crockett, 
17  A.  B.  R.  240  (X.  Y.  Sup.  Ct.  App.  Div.). 

194.  In  re  Hartman,  3  A.  B.   R.  65,  96   Fed.   593   (D.   C.   Iowa). 

195.  In  re  Kaufman,  14  A.  B.  R.  393,  136  Fed.  262  (D.  C.  N.  Y.). 

196.  In  re  Kaufman,  14  A.  B.  R.  393,  136  Fed.  262  (D.  C.'X.  Y.) ;  In  re 
Diamond,  17  A.  B.  R.  563  (C.  C.  A.  N.  Y.). 


§  2805  EFFECT  OF  DISCHARGE.  1643 

been  adjudicated  bankrupt  along  with  the  partnership  itself,  the  partner- 
ship discharge  will  not  effect  a  discharge  from  their  debts  as  individ- 
uals.i»" 

SUBDIVISION  "d." 

Discharge  of  Individual  Partner  Where  Partnership  and  Remain- 
ing Partners  Not  Discharged. 

§  2805.  Individual  Partner  May  Be  Discharged,  Where  Firm  and 
Other  Partners  Not. — An  individual  partner  may  receive  his  discharge, 
although-  the  partnership  and  remaining  partners  are  not  discharged. 

In  re  Meyers,  3  A.  B.  R.  260,  2  N.  B.  N.  &  R.  112  (D.  C.  N.  Y.) :  "It  is 
argued  that  under  §  5  of  the  present  act,  an  individual  petition  for  a  separate 
discharge  after  an  adjudication  of  the  firm,  cannot  be  maintained.  I  do  not 
appreciate  the  force  of  this  contention,  and  must  overrule  it.  If  it  were  sound. 
It  would  follow  that  in  no  case  of  a  firm  adjudication  could  an  honest  partner 
be  discharged,  if  a  discharge  was  denied  to  his  copartner  on  account  of  the 
latter's  wf-ong,  though  the  former  was  in  no  way  privy  to  it.  This  would  be 
plainly  contrary  to  the  evident  purpose  of  the  sections  of  the  act  relating  to 
discharges,  and  no  such  construction  of  section  5  seems  in  the  least  necessary." 

197.    In  re  Hale,  6  A.  B.  R.  35,  107  Fed.  432  (D.  C.  N.  Car.). 


CHAPTER  LV. 

Re;vocation  of  Discharge. 
Synopsis  of  Chapter. 
§  2806.  Revocation  of  Discharge. 

DIVISION    1. 

§  2807.  "Parties  in  Interest,"  Alone,  May  Move  to  Revoke. 

§  2808.  Includes  Creditor  Who  Has  Failed  to  Prove  Claim  within  Year. 

§  2809.  Must  Have  Been  Creditor  at  Time  of  Bankruptcy. 

§  2810.   Purchaser  of  Discharged  Claim,  Not  Party  in  Interest. 

§  2811.  Whether   Court,   Sua    Sponte,   May  within   Year   Vacate   Discharge   Not 

on  Merits. 
§  2812.  Whether  Bankrupt  May  Move  to  Vacate   Discharge. 

DIVISION  2. 

§  2813.  Fraud  in  Procuring  Discharge,  Accompanied  by  Grounds  for  Barring 
It,  Sole  Ground. 

§  2814.   Buying  Ofif  Opposition,  Sufficient. 

§  2815.  Applicant's  Knowledge  of  Fraud  at  Time  Discharge  Granted,  or  Laches, 
Fatal  to  Revocation. 

§  2816.  Ground  for  Barring  Discharge  Itself    Must  Also  Exist. 

§  2817.  Creditor  Defeated  in  Opposition  to  Discharge  May  Not  Move  for  Revo- 
cation on  Same   Grounds. 

§  2818.  Vacating  for  Irregularities  Not  Going  to  Merits. 

DIVISION  3. 

§  2819.  Trial   on    Application    for    Revocation. 

§  2820.  Before  Judge,  Not  before  Referee. 

§  2821.  But  May  Be  Referred  to  Special  Master. 

§  2822.  Petition  to  Set  Forth  Facts  Showing  Grounds  for  Revocation,  but  Need 

Not  Allege  Discharge  Not  Warranted. 
§  2823.  Amendment. 
§  2824.  Revocation  to  Be  Applied  for  within  Year  after  Discharge  Granted. 

§  2806.  Revocation  of  Discharge. — The  discharge  may  be  revoked 
upon  the  appHcation  of  parties  in  interest,  who  have  not  been  guiUy  of 
undue  laches,  filed  within  a  year  after  the  discharge  was  granted,  upon 
trial,  if  it  shall  be  made  to  appear  that  it  was  obtained  through  the  fraud 
of  the  bankrupt,  and  that  the  knowledge  of  the  fraud  has  come  to  the  pe- 
titioners since  the  granting  of  the  discharge,  and  that  the  actual  facts  did 
not  warrant  the  discharge.^ 

1.  Bankr.  Act,  §  15;  In  re  Meyers,  3  A.  B.  R.  722.  100  Fed.  775  (D.  C.  N. 
Y.);  In  re  Oleson,  7  A.  B.  R.  22,  110  Fed.  796  (D.  C.  Iowa),  quoted  post,  § 
2815;  In  re  Oliver,  13  A.  B.  R.  582,  133  Fed.  832  (D.  C.  N.  J.),  quoted  post,  § 
2816;  In  re  Upson,  10  A.  B.  R.  758,  124  Fed.  980  (D.  C.  N.  Y.),  quoted  post,  § 
2815. 


§  2811  rp.vocation  of  discharge.  1645 

Division   1. 

Who  May  Move  to  Revoke  Discharge. 

§  2807.  "Parties  in  Interest,"  Alone,  May  Move  to  Revoke.— 'Tar- 
ties  in  interest,"  and  only  they,  may  move  to  revoke  a  bankrupt's  dis- 
charge.2 

§  2808.  Includes  Creditor  Who  Has  Failed  to  Prove  Claim  within 
Year. — A  creditor  who  did  not  prove  his  claim  within  the  year  from  the 
adjudication  of  bankruptcy,  and  therefore  could  not  share  in  dividends, 
nevertheless  is  a  party  in  interest,  and  may  maintain  a  motion  to  revoke  a 
discharge.^ 

§  2809.   Must  Have  Been  Creditor  at  Time  of  Bankruptcy.— The 

applicant  must  have  been  a  creditor  at  the  time  of  the  bankruptcy,  not  the 
assignee  of  a  discharged  claim,  nor  a  subsequent  creditor. 

In  re  Chandler,  14  A.  B.  R.  512,  138  Fed.  637  (C.  C.  A.  Ills.):  "The  averment 
in  the  petition  that  the  objectors  are  creditors  is  not  such  a  statement  as  shows 
to  the  court  that  the  petitioners  are  'parties  in  interest,'  within  the  meaning  of 
the  law.  The  petition  does  not  make  such  a  showing  that  the  court  can  say- 
that  the  rights  of  the  petitioners  were  affected  by  the  discharge.  No  facts  were 
averred  which  would  justify  the  legal  conclusion  that  the  petitioners  are  'parties 
in  interest.'  It  is  not  averred  that  they  were  creditors  at  the  time  of  the  bank- 
ruptcy. The  character  of  their  debt  is  not  shown.  It  is  not  averred  that  their 
debt  was  provable  in  bankruptcy  or  was  proved  in  the  proceedings.  The  debt 
or  debts  they  represent,  from  all  that  appears  from  the  petition,  may  have  been 
created  since  discharge,  or  they  may  have  become  purchasers  of  the  debts 
which  were  discharged,  without  right  to  attack  the  discharge.  We  are  of 
opinion  that  the  petition  should  have  shown  that  the  petitioners  had  at  the  time 
provable  debts  against  the  bankrupt,  which  were  affected  by  the  discharge  of 
the  bankrupt.  Otherwise  they  are  not  'parties  in  interest,'  within  the  meaning 
of  the  statute." 

§  2810.    Purchaser  of  Discharged  Claim,  Not  Party  in  Interest. 

— The  assignee  of  a  discharged  claim  is  not  such  party  in  interest.-^ 

§  2811.  Whether  Court  Sua  Sponte  May  within  Year  Vacate  Dis- 
charge Not  on  Merits. — It  has  been  held,  that  the  court  sua  sponte  may 
vacate  within  a  year, its  decree  of  discharge  in  order  to  let  in  parties  to 
oppose  the  discharge.^ 

Obiter,  In  re  Bimberg,  9  A.  B.  R.  601,  121  Ked.  942  (D.  C.  N.  Y.) :  "Moreover, 
a  court  of  bankruptcy  has  generally  power,  like  any  other  court,  to  amend  its 

2.  Bankr.  Act,  ante,  §  15. 

3.  In  re  Bimberg,  9  A.  B.  R.  601,  121  Fed.  942  (D.  C.  N.  Y.);  [1867]  In  re 
Douglas,  11  Fed.  403. 

4.  In  re  Chandler,  14  A.  B.  R.  512,  138  Fed.  637  (C.  C.  A.  Ills.),  quoted  in  pre- 
ceding paragraph. 

5.  [1867]  In  re  Dupree,  Fed.  Cases  No.  4,183.  Compare,  analogously,  practice 
in  vacating  compositions,  obiter,  Bank  v.  Doolittle,  5  A.  B.  R.  743  (C.  C.  A. 
Tex.). 


1646  KEMIXGTOX    OX   BANKRUPTCY.  §    2813 

decrees,  in  its  discretion  at  any  time,  in  the  furtherance  of  justice,  in  the  absence 
of  any  statutory  prohibition.  *  *  *  Undoubtedly  a  discharge  cannot  be  vacated 
after  a  year  has  passed,  but  before  a  year  has  passed,  the  court,  on  its  own  mo- 
tion, in  my  opinion,  could  vacate  a  discharge,  if  justice  required  it." 

But  this  is  different  from  revoking  the  discharge ;  for  the  revoking  of 
a  discharge  is  a  direct  finding  that  the  discharge  ought  not  to  be  granted  at 
all,  while  the  vacating  of  a  discharge  decree  may  be  based  solely  upon 
grounds  not  going  to  the  merits,  and  still  leave  the  discharge  ultimately, 
to  be  granted. 

§  2812.   Whether  Bankrupt  May  Move  to  Vacate  Discharge. — It 

is  also  a  question  whether  the  bankrupt,  on  good  cause  shown,  may  also 
be  permitted  to  move  for  the  vacating  of  his  own  discharge  decree.  It 
has  been  held  that  he  may  do  so,  if  proper  notice  be  given  and  third 
persons  be  not  injured.*^ 

But  he  may  not  do  so,  at  any  rate,  for  the  pi:rpose  of  permitting  him  to 
amend  his  schedules  to  include  an  omitted  creditor  after  the  expiration  of 
the  year  in  which  the  creditor  might  have  filed  his  claim  for  allowance ;' 
nor  without  notice  to  the  creditor.'^ 

Divisiox  2. 

Grouxds  for  Rkvokixg  Discharge. 

§  2813.  Fraud  in  Procuring  Discharge,  Accompanied  by  Grounds 
for  Barring  It,  Sole  Ground. — Fraud  in  the  procuring  of  the  discharge 
(accompanied  with  the  existence  of  some  one  of  the  original  grounds  for 
barring  discharge)  is  the  only  ground  of  revocation. ^ 

In  re  Hoover,  5  A.  B.  R.  347,  105  Fed.  354  (D.  C.  Pa.):  "This  is  an  applica- 
tion, under  section  15  of  the  act,  to  revoke  the  discharge  of  a  bankrupt;  but 
there  is  this  fatal  defect  in  the  proceeding:  Neither  by  averment  in  the  petition, 
nor  by  proof  in  the  testimony  that  has  been  laid  before  me,  does  it  appear  that 
the  discharge  was  'obtained  through  fraud  of  the  bankrupt,'  and  that  'the  knowl- 
edge of  the  fraud  has  come  to  the  petitioners  since  the  granting  of  the  dis- 
charge.' The  averments  of  fraud  contained  in  the  petition  relate  to  events  oc- 
curring several  years  before  the  adjudication,  and  could  properly  be  considered,  if 
at  all,  only  upon  objection  to  the  granting  of  the  discharge.    No  doubt  the  peti- 

6.  In  re  Shaflfer,  4  A.  B.  R.  728  (D.  C.  X.  Car.).  Impliedly,  In  re  Hawk,  8 
A.  B.  R.  71,  114  Fed.  916  (C.  C.  A.). 

7.  In  re  Hawk,  8  A.  B.  R.  71,  fl4  Fed.  916  (G.  C.  A.,  distinguished  in  In  re 
Kaufman,  14  A.  B.  R. -397,  136  Fed.  262,  D.  C.  Pa.). 

8.  In  re  Hawk,  8  A.  B.  R.  71,  114  Fed.  916  (C.  C.  A.). 

9.  In  re  Hasen,  5  A.  B.  R.  747,  107  Fed.  252  (D.  C.  Ore.).  Compare,  In  re 
Mej-ers,  3  A.  B.  R.  260,  2.N.  B.  N.  &  R.  Ill  (D.  C.  X.  Y.). 

Instance  held  insufficient:  Failure  to  schedule  certain  lands  of  which  bank- 
rupt had  been  dispossessed  by  order  of  the  U.  S.  Land  Office,  which  order, 
after  his  discharge,  had  been  reversed.  In  re  Hansen,  5  A.  B.  R.  747,  107  Fed. 
252  (D.  C.  Ore.). 

Instance  held  insufficient:  Conditional  and  personal  right  of  purchase  not 
an  asset  of  the  estate.  In  re  Hansen,  5  A.  B.  R..747,  107  Fed.  252  (D.  C.  Ore.), 


§    2815  RnOCATlOX   OF  DISCHARGE.  1647 

tioners  intended  to  oppose  such  objections  at  the  proper  time,  namely,  within 
ten  days  after  the  time  fixed  for  hearing  the  bankrupt's  application  to  be  dis- 
charged; but  for  some  reason  no  objections  were  filed,  and  the  discharge  was 
granted  in  due  course.  But  it  was  not  obtained  by  the  bankrupt's  'fraud,'  in 
any  sense  of  that  word,  and  there  is  not  subject  to  be  revoked  under  the  section 
now  being  considered." 

The  willfully  giving  of  a  wrong  address  of  a  creditor,  in  order 
to  get  a  discharge  without  the  creditor's  knowledge,  is  such  a  fraud. i'^ 

By  this  is  not  meant  that  the  court  may  not  set  aside  the  order  granting 
the  discharge  for  irregularity,  or  for  noncompliance  with  the  rules  of 
practice. 

§  2814.  Buying-  Off  Opposition,  Sufficient. — The  buying  off  of  op- 
position is  clearly  sufficient.^ ^ 

In  re  Dietz,  3  A.  B.  R.  316,  97  Fed.  563  (D.  C.  N.  Y.)  :  "There  is  no  doubt 
that  if  the  opposition  of  the  creditor  is  bought  ofif  through  the  procurement  or 
privity  of  the  bankrupt,  it  is  such  fraud  upon  the  act  as  would  warrant  vacating 
the  discharge,  the  fact  itself  being  prima  facie  evidence  that  the  bankrupt  was 
not  entitled  to  it." 

§  2815.  Applicant's  Knowledge  of  Fraud  at  Time  Discharge 
Granted,  or  Laches,  Fatal  to  Revocation. — The  applicant  for  revoca- 
tion must  not  have  had  knowledge  of  the  fraud  in  obtaining  the  discharge 
at  the  time  the  discharge  was  granted,  nor  must  he  have  been  otherwise 
guilty  of  laches. ^2 

In  re  Upson,  10  A.  B.  R.  758,  124  Fed.  980  (D.  C.  N.  Y.) :  "Again,  it  is  not 
shown,  assuming  that  the  bankrupt  was  guilty  of  fraud  in  concealing  facts,  that 
the  knowledge  of  such  fraud  has  come  to  the  petitioner  since  the  granting  of 
the  discharge.  It  is  true  that  certain  officers  of  the  bank  have  testified  that  they 
had  no  knowledge  of  certain  facts  proved  before  the  referee;  but  it  does  not 
appear  that  other  officers  or  that  the  board  of  directors  did  not  have  full 
knowledge,  and  in  truth  it  would  seem  that  the  bank  did  have  all  the  knowl- 
edge on  the  subject  it  cared  for  at  the  time.  Having  appeared  to  oppose  the 
discharge,  and  having  been  given  twenty  days  in  which  to  file  specifications  in 
opposition,  the  bank  was  certainly  guilty  of  undue  laches  in  not  filing  its  specifi- 
cations and  proceeding  to  produce  evidence  on  the  subject." 

In  re  Oleson,  7  A.  B.  R.  22,.  110  Fed.  796  (D.  C.  Iowa):  "It  is  apparent  that 
if  the  court   should  approve  of  the  practice   of  allowing  a  creditor  to  attack  a 

10.  In  re  Roosa,  9  A.  B.  R.  531,  119  Fed.  542   (D.  C.  Iowa). 

11.  Analogously.  In  re  Steindler  &  Hahn,  5  A.  B.  R.  63  (Ref.  N.  Y.)  ;  [1867] 
In  re  Douglass.  11  Fed.  403,  406;  [1867]  In  re  Palmer,  14  N.  B.  Reg.  437,  Fed. 
Cas.  No.  10,678;  Tuxbury  7'.  Miller,  19  Johns  311;  Blasdel  v.  Fowle,  120  Mass. 
447;  Bell  v.  Leggett,  7  X.  Y.  176;  obiter.  In  re  Luftig,  15  A.  B.  R.  778  (D.  C. 
Mass.). 

12.  Bankr.  Act,  §  15;  Impliedly,  In  re  Oliver,  13  A.  B.  R.  582.  133  Fed.  832 
CD.  C.  N.  J.);  In  re  Meyers,  3  A.  B.  R.  722,  100  Fed.  775  (D.  C.  N.  Y.);  obiter, 
In  re  Shaffer,  4  A.  B.  R.  730,  104  Fed.  982  (D.  C.  N.  Car.). 

Denial  of  laches  in  general  terms  on  general  averments  of  legal  conclusions 
will  not  suffice;    In  re  Oleson,  7  A.  B.  R.'  22,  110  Fed.  796  (D.  C.  Iowa). 


1648  REMINGTON   ON   BANKRUPTCY.  §    2817 

discharge  months  after  its  date,  without  making  any  substantial  showing  of 
facts  to  prove  the  absence  of  undue  laches,  it  would  open  the  door  to  unfair 
attacks  upon  the  bankrupt  on  the  part  of  single  creditors,  who  would  hope  to 
force  payment  to  the'^ii,  in  order  to  avoid  the  cost  and  possible  injury  to  the 
bankrupt  who  may  have  entered  into  new  business  pursuits,  which  would  be 
seriously  affected  if  the  question  of  his  liability  on  the  debts  barred  by  the 
discharge  were  to  be  reopened.  When,  as  in  this  case,  the  existence  of  the 
mortgage  now  claimed  to  be  fraudulent  was  shown  in  the  original  schedules  and 
the  creditors  do  not  question  its  validity  during  the  pendency  of  the  case  and 
the  discharge  is  granted,  the  court  will  not  be  justified  in  entertaining  a  peti- 
tion for  the  revocation  of  the  discharge,  unless  it  is  made  clear  that  the  creditor 
has  not  been  guilty  of  laches;  and  that  cannot  be  done  by  general  averments 
of  mere  conclusions  to  the  eft'ect  that  the  party  has  not  been  guilty  of  negli- 
gence, or  has  acted  with  due  diligence.  *  *  *  No  showing  of  facts  is  made 
explaining  why  the  validity  of  this  mortgage  was  not  inquired  into  during  the 
pendency  of  the  proceedings.  The  evil  that  may  result  from  allowing  attacks 
upon  the  validity  of  a  discharge  months  after  it  has  been  granted  is  apparent. 
The  bankrupt,  having  received  his  discharge,  will  ordinarily  engage  in  new  busi- 
ness enterprises,  and  may  become  indebted  to  many  persons,  who,  in  good 
faith,  extend  credit  to  him  in  the  belief  that  the  discharge  granted  bars  the 
pre-existing  indebtedness,  and  their  rights  will  be  seriously  affected  if  the  dis- 
charge is  revoked  and  held  for  naught." 

Thus,  failure  without  good  cause  to  file  specifications  within  the  time 
limited  will  be  such  laches  as  will  bar  the  right  to  revocation. ^^  And  it 
has  been  held,  that  notice  of  the  fraud  to  the  trustee  is  notice  to  each  and 
all  creditors.^'* 

§  2816.    Ground  for  Barring  Discharge  Itself,  Must  Also  Exist. 

— But  the  fraud  of  the  bankrupt  in  obtaining  his  discharge  must  have  been 
accompanied  with  the  existence  of  grounds  themselves  sufficient  to  have 
forbidden  discharge  in  the  first  instance. ^'^ 

In  re  Oliver,  13  A.  B.  R.  582,  133  Fed.  832  (D.  C.  N.  J.):  "But  *  *  *  it 
must  further  appear,  in  order  to  justify  the  court  in  vacating  tlie  order  of  dis- 
charge, that  the  actual  facts  did  not  warrant  the  discharge." 

Thus,  the  bankrupt's  omission  to  schedule  property  conveyed  to  his  wife 
in  fraud  of  creditors,  although  so  conveyed  to  her  more  than  four  months 
before  the  bankruptcy,  is  such  concealment  of  assets^^  as  will  warrant 
revocation  of  the  discharge. 

§  2817.  Creditor  Defeated  in  Opposition  to  Discharge  May  Not 
Move  for  Revocation  on  Same  Grounds. ^ — A  creditor  who  has  been 

13.  In  re  Hoover,  5  A.  B.  R.  247,  105  Fed.  354  (D.  C.  Pa.);  In  re  Upson,  10 
A.  B.  R.  758,  124  Fed.  980  (D.  C.  N.  Y.) ;  inferentially,  In  re  Oleson,  7  A.  B.  R. 
22,  110  Fed.  796  (D.  C.  Iowa). 

14.  In  re   Hansen,  5  A.   B.   R.  747,  107   Fed.  252   (D.   C.   Ore.). 

15.  Bankr.  Act,  §  15;  In  re  Meyers,  3  A.  B.  R.  722,  100  Fed.  775  (D.  C.  N. 
Y.);  In  re  Roosa,  9  A.  B.  R.  531,  119  Fed.  542  (D.  C.  Iowa). 

Compare,  for  case  where  the  court  evidently  considered  fraud  alone  sufficient, 
obiter,   In  re  Luftig,  15  A.  B.  R.  778   (D.  C.  Mass.). 

16.  In  re  Toothaker  Bros.,  12  A.  B.  R.  99,  128  Fed.  187   (D.   C.  Conn.). 


§  2822  re;vocation  of  discharge:.  1649 

"defeated  in  his  opposition  to  the  discharge,  may  not  move  for  a  revocation 
of  it  on  the  same  grounds,  but  may  impeach  it  for  other  and  further  in- 
stances of  fraud  newly  discovered ,  the  estoppel  of  the  former  decree 
being  limited  in  this  particular  to  the  specifications  that  were  passed 
upon.^" 

§  2818.    Vacating  for  Irregularities  Not  Going  to  Merits. ^The 

discharge  decree  may  be  vacated  on  other  grounds  also.  Thus,  courts  will 
always,  in  proper  cases,  vacate  their  decrees  if  there  is  a  sufficient  viola- 
tion of  the  rules  of  practice. ^^  For  instance,  where  separate  findings  of 
fact  and  law  were  rec[uested  by  the  opposing  creditors,  but  not  made,  the 
discharge  should  be  vacated  for  that  purpose. ^^  But  such  vacating  merely 
puts  the  discharge  petition  back  for  a  rehearing  and  is  different  from  the 
revocation  of  the  discharge. 

Division  3. 

Practice;. 

§  2819.  Trial  on  Application  for  Revocation. — Trial  must  be  had 
upon  the  application  for  revocation  of  the  discharge.-*^ 

§  2820.  Before  Judge,  Not  before  Referee. — The  trial  must  be  had 
before  the  judge,  not  before  the  referee  or  special  master.-^ 

§  2821.  But  May  Be  Referred  to  Special  Master.— The  matter  of 
the  revocation  may  be  referred  to  the  referee  as  special  master. ^2 

§  2822.  Petition  to  Set  Forth  Facts  Showing  Grounds  for  Revo- 
cation but  Need  Not  Allege  Discharge  "Not  Warranted." — The  pe- 
tition for  revocation  need  not  allege  the  discharge  was  not  w^arranted ;  such 
allegation  would  be  merely  a  legal  conclusion.  It  is  sufficient  for  it  to 
set  forth  the  facts. ^3  But  it  must  nevertheless  appear  therefrom  that  the 
discharge  was  not  warranted. ^^  Merely  to  state  that  the  party  "is  a  cred- 
itor" is  insufficient.  It  must  appear  that  he  was  a  creditor  at  the  time 
of  the  bankruptcy,  and  not  the  assignee  of  a  discharged  debt  nor  a  subse- 
ciuent  creditor. 25 


17.  [18671   Dowder  v.  Rowell,  25  Vt.  336. 

18.  Compare,    analogously    the    withholding    of    discharges    and    confarinatiou 
o:  compositions  until  rules  are  complied  with,  ante,  §§  2376,  2382,  2457. 

19.  In  re  Rauchenplat,  9  A.  B.  R.  763,  1  P.  R.  471,  (D.  C.  Porto  Rico). 

20.  Bankr.  Act,  §  15. 

21.  Bankr.  Act,  §  15;  Bankr.  Act,  §  38  (a)   (4). 

22.  In  re  Meyers,  3  A.  B.  R,  722,  100  Fed.  775  (D.  C.  N.  Y.). 

23.  In  re  Toothaker  Bros.,  12  A.  B.  R.  99,  128  Fed.  187   (D.  C.   Conn.). 

24.  In  re  Oliver,  13  A.  B.  R.  582,  133  Fed.  832   (D.  C.  N.  J.). 

25.  In  re  Chandler,  14  A.   B.   R.   512,   138  Fed.  637   (C.  A.   Ills.). 

2  Rem  B— 29 


1650  REMINGTON   ON    BANKRUPTCY,  §    2824 

§  2823.   Amendment. — The  petition  for  revocation  may  be  amended. ^^ 

§  2824.  Revocation  to  Be  Applied  for  within  Year  after  Dis- 
charge Granted. — The  application  must  be  made  within  the  year  after 
the  granting  of  the  discharge. ^'^ 

Obiter,  In  re  Shaffer,  4  A.  B.  R.  730,  104  Fed.  982  (D.  C.  N.  Car.):     "Where 
the  petition  is  not  filed  within  one  year,  it  is  absolutely  barred  by  the  statute." 

26.  In  re  Oliver,  13  A.  B.  R.  582,  133  Fed.  832  (D.  C.  N.  J.). 

27.  In  re  Meyers,  3  A.  B.  R.  722,  100  Fed.  775   (D.   C.  N.   Y.) ;  obiter,   In  re 
Oleson,  7  A.  B.  R.  22,  110  Fed.  796  (D.  C.  Iowa). 


PART  XI. 

Appeals  and  Error. 


CHAPTER  LVI. 
Parties  ox  AppeaIv  and  Error. 

Synopsis  of  Chapter. 

§  2825.  Proper  Parties  on  Appeal  and  Error,  in  General. 

§  2826.  Must  Have  Substantial  Interest  in  Controvers}-. 

§  2827.  Must  Be  in  Trustee's  Xame,  if  in  Behalf  of  Estate  and  after  Election  of 
Trustee. 

§  2828.  Except  When  Controversy  About  Trustee's  Own  Compensation  or 
Expenses  or  Report  on  Exemptions. 

§  2829.  Or,  When  About  Own  Conduct,  or  Administration. 

§  2830.  Trustee  Refusing  May  Be  Ordered,  or  Creditor  Be  Authorized  to  Use 
Trustee's   Name. 

§  2831.  Court  IMay  Require  Creditor  to  Indemnify  Trustee. 

§  2832.  Laches  May  Bar  Right  to  Object  to  Other  than  Trustee  Appealing. 

§  2833.  Before  Election  of  Trustee  Appeal  or  Error  May  Be  by  Creditor. 

§  2834.  Appeal  by  One  Party  Does  Not  Nesessarily  Bring  Up  Case  as  to  All. 

§  2825.  Appeal  Not  Dismissed  for  Lack  of  Necessary  Parties  Where  Not  Par- 
ties below  but  Represented  by  Trustee. 

§  2836.  Joint  Appeal. 

§  2837.  Omitted  Parties  Made  Parties  on  Appeal. 

§  2838.  Creditors  Assenting  to  Composition,  Necessary  Parties  on  Appeal  from 
Confirmation. 

§  2825.    Proper  Parties  on  Appeal  and  Error  in  General. — The 

rules  as  to  who  are  and  who  are  not  proper  parties  on  appeal  and  error 
proceedings  in  bankruptcy  follow  in  general  the  usual  rules  of  federal 
procedure. 

§  2826.  Must  Have  Substantial  Interest  in  Controversy. — Parties 
on  appeal  must  have  a  substantial  interest  in  the  controversy;^  and  where 
the  appellant  loses  such  interest  pending  the  appeal,  as  by  payment  or 
otherwise,  the  petition  will  be  dismissed.-  But  a  creditor's  claim  need 
not  necessarily  have  been  allowed.^ 

§  2827.  Must  Be  in  Trustee's  Name,  if  in  Behalf  of  Estate  and 
after  Election  of  Trustee. — All  action  and  defense,  as  well  on  appeal 
and  in  error  proceedings  as  elsewhere,  in  behalf  of  the  estate,  after  the 
election  of  the  trustee,  must  be  taken  in  the  name  of  the  trustee.'^ 

1.  In  re  Baker,  4  A.  B.  R.  778,  104  Fed.  287  fC.  C.  A.  Mass.). 

2.  In  re  Baker,  4  A.  B.  R.  778,  104  Fed.  287  (C.  C.  A.  Mass.). 

3.  Allgair  v.  Fisher,  16  A.  B.  R.  278,  143  Fed.  962  (C.  C.  A.  N.  J.). 

4.  Foreman  v.  Burleigh,  6  A.  B.  R.  230,  109  Fed.  313  (C.  C.  A.  Mass.).  Dissent- 
ing opinion  of  Sanburn,  J.,  in  Ayres  v.  Cone,  14  A.  B.  R.  747,  138  Fed.  783 
(C.  C.  A.  S.  Dak.);  [1867]  In  re  Troy  Woolen  Co.,  Fed.  Cases  No.  14,202; 
[1867]  In  re  Joseph,  Fed.  Cases  No.  7,532;  [1867]  In  re  Place,  Fed.  Cases  No. 
11,200;    [1867]    In  re  Randall,  20  Fed.  Cases  226,  228,   1  Sawy.  56;   In  re  Lewen- 


1654  REMIXGTOX    OX    BAXKRUPTCY.  J?   2827 

Chatfield  v.  O'Dwyer,  4  A.  B.  R.  313,  101  Fed.  797  (C.  C.  A.  Ark.):  "The 
obvious  purpose  of  these  provisions  of  the  act  is  to  enable  the  trustee  of  a 
bankrupt's  estate  to  take  the  proper  and  necessary  steps  to  object  to  the  allow- 
ance of  a  false  or  fictitious  claim,  and  to  take  the  proper  steps  to  vacate  the 
allowance  of  any  such  claims  when  thej^  have  been  allowed,  and  the  fact  of 
their  invalidity  comes  to  his  knowledge.  The  office  of  a  trustee  under  the 
present  Bankrupt  Act  is  entirely  analogous  to  that  of  assignee  under  the  bank- 
rupt law  of  18G7.  The  trustee  is  elected  by,  and  is  the  representative  of,  the 
creditor;  and,  following  the  general  analogies  of  the  law,  he  is  the  appropriate 
person  to  see  that  no  unjust  or  fictitious  claims  are'  allowed  to  be  paid  out  of 
the  assets  in  his  hands.  His  duties  are  very  similar  to  those  of  an  administrator 
or  executor.  Tt  is  his  duty  to  ascertain  that  all  claims  presented  for  allowance, 
or  that  may  have  been  allowed,  are  genuine;  and  under  subdivision  6,  rule  21, 
of  the  rules  in  bankruptcy  formulated  by  the  Supreme  Court  of  the  United 
States,  the  trustee  has  been  empowered  to  file  a  petition  with  the  referee  to 
have  any  claim  further  investigated,  when  for  any  reason  he  may  desire  a  re- 
examination of  the  same.  Furthermore,  if  one  creditor  of  a  bankrupt  may 
prosecute  an  appeal,  under  §  25  of  the  bankrupt  law,  from  the  allowance 
of  a  claim,  then  any  other  creditor  may  take  a  like  appeal  upon  the  same  or 
different  grounds,  and  this  court  may  be  required  to  entertain  a  number  of 
appeals,  all  of  which  are  brought  to  test  the  validity  of  the  same  demand." 

Compare,  obiter,  Gray  v.  Mercantile  Co.,  14  A.  B.  R.  780,  138  Fed.  344  (C.  C. 
A.  X.  Dak.) :  "But  one  may  be  before  a  court  so  as  to  enable  it  to  adjudicate 
his  rights,  and  yet  not  be  an  actual  party  to  the  proceeding;  as  when  he  is 
represented  by  a  receiver  or  trustee  who  is  an  actual  party,  and  whose  duty 
it  is  to  protect  his  interests.  *  *  *  gy  ^j^g  decree  challenged  by  this  appeal 
it  was  adjudged  that  the  claims  of  IMurphy,  McXamara,  Blair  and  Lynch  rep- 
resent legitimate  expenses  and  costs  of  administration;  that  the  claim  of 
Carroll,  while  not  of-this  character,  is  yet  a  lawful  one,  and  entitled  to  priority; 
and  that  each  of  these  claims  is  properly  payable  out  of  the  bankrupt's  estate. 
The  question  whether  the  decree  shall  stand  or  be  reversed  is  obviously  of 
direct  interest  to  the  claimants  whose  claims  are  sustained  by  it,  and  because 
of  this  interest  the  question  cannot  be  determined  without  affording  these  claim- 
ants an  opportunity  to  be  heard  in  defense  of  the  decree.  *  *  *  'j'j^g  only  par- 
ties respondent  to  this  appeal  are  two  general  creditors.  The  citation  is  di- 
rected to  them  only.  The  reason  for  their  presence  lies  in  the  fact  that  it  was 
upon  their  objections  that  the  claims  of  Porter  and  the  trustee  were  partially  dis- 
allowed. Murphy,  McNamara,  Blair,  Lynch  and  Carroll  are  not  before  this 
court  as  actual  parties,  and  are  not  represented  by  any  one  who  is  an  actual 
party.  The  trustee  is  not  their  representative.  He  is  seeking  to  strike  down 
the  allowance  of  their  claims,  and  in  this  is  the  representative  of  the  general 
creditors  of  the  estate.  Chatfield  v.  O'Dwyer,  supra.  Of  course  he  cannot 
represent  or  speak  for  both  sides  to  the  controversy." 

sohn,  9  A.  B.  R.  368,  121  Fed.  538  (C.  C.  A.,  referred  to  In  re  Koenig  &  Von 
Hoogenhuyze,  11  A.  B.  R.  619,  127  Fed.  891);  In  re  Levy,  7  A.  B.  R.  56  (Ref. 
N.  Y.). 

Compare,  to  same  effect,  Viquesnaj^  v.  Allen,  12  A.  B.  R.  402,  131  Fed.  21. 
(C.  C.  .\.  W.  Va.);  compare,  to  effect,  that  trustee  represents  all  creditors  o\ 
appeal,  In  re  Utt,  5  A.  B.  R.  383,  105  Fed.  754  (C.  C.  A.  Ills.). 

Contra,  and  that  any  person  aggrieved  may  appeal,  and  that  one  creditor 
may   appeal    from   allowance   of   another   creditor's   claim,    obiter.    In   re    Roche, 

4  A.  B.  R.  360,  101  Fed.  958  (C.  C.  A.  Tex.,  distinguished  in  Foreman  v.  Bur- 
leigh. 6  A.  B.  R.  230.  109  Fed.  313.  C.  C.  A.  Mass.).     Contra,  McDaniel  v.  Stroud, 

5  A.  B.  R.  685,  106  Fed.  486  (C.  C.  A.  S.  C). 


§  2832  PARTIES  ON  APPEAL  AND  ERROR.  1655 

§  2828.  Except  When  Controversy  About  Trustees's  Own  Compen- 
sation or  Expenses  or  Report  on  Exemptions. — All  such  action  must 
be  taken  by  the  trustee  or  in  his  name,  except,  of  course,  when  the  matter 
in  controversy  is  the  trustee's  own  compensation  or  expenses,  or  his  report 
of  exempted  property.  But  even  in  such  cases  it  has  apparently  been  held, 
obiter,  that  he  must  be  taken  as  still  representing  general  creditors  f  al- 
though it  is  difficult  to  see  how  the  trustee  still  "represents"  general  cred- 
itors when  he  appeals  from  an  order  cutting  down  his  expenses.  It  would 
seem  the  fiction  should  give  way  to  the  reality  that  he  then  represents  him- 
self, in  opposition  to  creditors.  It  is  precisely  for  the  reason  that  he  did 
not,  in  the  matter  of  allowances  of  compensation  and  expenses  1o  himself, 
represent  creditors,  that  creditors  should  be  given  notice  of  the  filing  of  his 
final  account,  as  prescribed  by  the  act. 

§  2829.    Or  When  About  Own  Conduct,  or  Administration. — Or, 

also,  when  his  own  conduct,  or  administration  of  the  estate,  is  in  contro- 
versy ;  as,  for  instance,  where  his  sale  is  being  criticised.*^ 

§  2830.  Trustee  Refusing  May  Be  Ordered,  or  Creditor  Be  Au- 
thorized to  Use  Trustee's  Name. — Where  the  trustee  refuses  to  act, 
he  may  be  ordered  so  to  do ;  or  a  creditor,  or  other  interested  party,  may, 
on  application,  be  authorized  by  the  court  to  act  for  the  estate  in  the 
trustee's  name." 

§  2831.    Court  May  Require  Creditor  to  Indemnify  Trustee. — And 

the   court,   in   such   instance,   may  require   the  creditor   to   indemnify  the 
trustee  against  costs ;  or  to  pay  the  costs,  if  unsuccessful.^ 

§  2832.  Laches  May  Bar  Right  to  Object  to  Other  than  Trustee 
Appealing. — Laches  in  objecting  to  other  parties  than  the  trustee  taking 
such  action,  may  be  a  waiver  of  the  objection.  Thus,  the  objection  may 
not  be  raised  for  the  first  time  on  review.^ 


5.  Gray  v.  Mercantile  Co.,  14  A.  B.  R.  780,  138  Fed.  344  (C.  C.  A.  N.  Dak.\ 

6.  Allegair  v.  Fisher,  16  A.  B.  R.  278.  143  Fed.  962   (C."  C.  A.  N.  J.). 

7.  Chatfield  v.  O'Dwyer,  4  A.  R  R.  313,  101  Fed.  797  (C.  C.  A.  Ark.),  in  which 
case  the  court  bases  its  holding  on  the  duty  of  the  bankrupt  to  inform  the 
"trustee"  of  iinproper  claims;  also  upon  the  theory  that  he  is  the  representative 
of  all  creditors,  that  all  creditors  are  interested  parties  and  must  be  parties  on 
appeal;  and  finally,  that  otherwise,  there  might  be  as  many  appeals  as  there 
were  creditors  to  institute  them. 

See  analogously,  Smith  v.  Belden,  6  A.  B.  R.  432  (N.  Y.  Sup.  Ct.). 

Compare,  In  re  Levy,  7  A.  B.  R.  56  (Ref.  N.  Y.),  where  the  court  held  a  cred- 
itor could  apgeal  in  his  own  name,  where  the  trustee  has  refused  for  insufificient 
reasons  and  has  delayed  until  time  for  appeal  has  almost  expired. 

[1867]   In  re  Randall,  1  Sawyer  56,  20  Fed.   Cases  226,  228. 

8.  Chatfield  v.  O'Dwyer,  4  A.  B.  R.  313,  101  Fed.  797  (C.  C.  A.  Ark.). 

9.  In  re  Koenig  &  Van  Hoogenhuyze,  11  A.  B.  R.  619,  127  Fed.  891  (D.  C. 
Tex.). 


1656  REMINGTON    ON   BANKRUPTCY.  §    2836 

§  2833.    Before  Election  of  Trustee  Appeal  or  Error  May  Be  by 

'Creditor.— Alanifestly,  before  a  trustee  is  elected  some  one  must  have 
the  right  to  prosecute  appeal  and  petitions  for  review ;  and  where  the  order 
complained  of  was  entered  on  an  application  made  before  the  election  of 
trustee,  the  original  applicant  is  a  competent  party. ^^ , 

§  2834.  Appeal  by  One  Party  Does  Not  Necessarily  Bring  Up 
Case  as  to  All. — Appeal  by  one  party  does  not  necessarily  bring  up  the 
case  as  to  all  parties. 

Thus,  an  appeal  by  a  creditor,  where  there  is  no  cross  appeal  by  the 
bankrupt,  from  an  order  overruling  part  and  sustaining  part  of  the  cred- 
itor's exceptions  to  the  trustee's  report  of  exempted  property,  does  not 
bring  up  the  bankrupt's  case,  and  the  bankrupt  may  not  move  to  dismiss 
the  creditor's  appeal  upon  the  ground  that  the  court  was  without  juris- 
diction.^^ 

§  2835.  Appeal  Not  Dismissed  for  Lack  of  Necessary  Parties 
Where  Not  Parties  Below  but  Represented  by  Trustee. — Appeal  will 
not  be  dismissed  for  lack  of  necessary  parties,  where  the  parties  alleged 
to  be  necessary  were  not  parties  below ;  and,  where  they  were  represented 
solely  by  the  trustee  below,  they  must  be  deemed  sufficiently  represented 
by  him  in  the  appellate  court. ^^ 

§  2836.  Joint  Appeal. — All  parties  aggrieved  by  a  final  decision, 
whereby  a  bill  in  equity  or  a  petition  in  bankruptcy  is  dismissed,  may  join 
in  an  appeal,  although  some  complain  of  one  alleged  error  and  some  of 
another ;  because,  on  such  an  appeal,  all  prior  rulings  are  reviewable. ^^ 

Where,  upon  the  determination  of  a  c[uestion  afifecting  the  distinct  in- 
terests of  several  claimants,  the  court  enters  a  single  judgment  and  allows 
a  joint  appeal,  a  motion  to  dismiss,  upon  the  ground  that  the  interests  of 
the  petitioner  are  not  joint,  will  be  denied.^* 

The  established  rule  of  the  federal  appellate  courts  requiring  all  parties 
against  whom  a  judgment  or  decree  is  rendered,  in  the  absence  of  sever- 
ance, to  join  in  suing  out  a  writ  of  error  or  prosecuting  an  appeal  there- 
Irom,  only  applies  to  a  joint  judgment  or  decree  against  such  parties;  it 

10.  Clark  V.  Pidcock^  12  A.  B.  R.  309,  129  Fed.  745  (C.  C.  A.  N.  J.) :  In  this 
case  the  assignee  of  a  creditor  had  applied  for  the  reopening  of  an  estate  as 
not  having  been  fully  administered.  At  the  same  time  he  procured  a  restrain- 
ing order.  On  the  hearing  of  the  restraining  order  it  was  dissolved  but  a  trus- 
tee was  appointed.  The  court  held  the  creditor's  assignee  was  a  competent 
party  on  review. 

11.  McGahan  v.  Anderson,  7  A.  B.  R.  641,  113  Fed.  115  (C.  C    A    S    C) 

12.  In  re  Utt,  5  A.  B.  R.  383,  105  Fed.  754  (C.  C.  A.  Ills.).  Compare,  to'same 
eflfect,  Love  v.  Export  Storage  Co.,  16  A.  B.  R.  171,  143  Fed.  1  (C.  C.  A.  Tenn.;. 
But  compare,  Ayres  v.  Cone,  14  A.  B.  R.  745,  138  Fed.  778  (C.  C.  A.  S.  Dak). 

13.  Stevens  v.  Nave-McCord  Co.,  17  A.  B.  R.  609,  150  Fed.  71  (C.  C   A    Colo  ) 

14.  Crim  v.  Woodford,  14  A.  B.  R.  302,  136  Fed.  34  (C.  C    A    W    Va  ) 


§  2838  PARTIES  ON  APPEAL  AND  ERROR.  1657 

has  no  application  to  separate  judgments  or  decrees  against  such  parties, 
though  rendered  at  the  same  time  and  contained  in  the  same  entry. 

Trustees  in  bankruptcy,  who,  as  individuals,  are,  by  agreement  of  the 
contending  parties,  mere  stakeholders  of  a  fund  in  controversy,  are  not 
necessary  parties  as  individuals  to  an  appeal  from  such  part  of  a  decree 
as  determines  that  one  of  the  parties  is  entitled  to  the  fund ;  nor  need  they 
be  made  respondents. ^^^ 

§  2837.  Omitted  Parties  Made  Parties  on  Appeal. — Omitted  parties 
may,  under  certain  circumstances,  be  made  parties  on  appeal  ;i*^  likewise, 
on  review.^"     But  laches  will  bar  the  right. ^^ 

§  2838.  Creditors  Assenting  to  Composition,  Necessary  Parties 
on  Appeal  from  Confirmation. — On  appeal  from  an  order  confirming 
a  composition,  creditors  who  have  assented  thereto  and  have  received  their 

money  are  necessary  parties. ^^ 

• 

15.  Love  V.  Export  Storage  Co.,  16  A.  B.  R.  171,  143  Fed.  1  (C.  C.  A.  Tenn.). 

16.  Impliedly,  Gray  v.  Mercantile  Co.,  14  A.  B.  R.'780,  138  Fed.  344  (C.  C. 
A.  N.  Dak.). 

17.  Allgair  v.  Fisher,  16  A.  B.  R.  278,  143  Fed.  962  (C.  C.  A.  N.  J.). 

18.  Gray  v.  Mercantile  Co.,  14  A.  B.  R.  780,  138  Fed.  344  (C.  C.  A.  N.  Dak.). 

19.  Marshall  Field  &  Co.  v.  Wolf  Bros.  Dry  Goods  Co.,  9  A.  B.  R.  693,  120 
Fed.  815  (C.  C.  A.  Ark.). 


1656  REMINGTON    ON   BANKRUPTCY.  §   2836 

§  2833.  Before  Election  of  Trustee  Appeal  or  Error  May  Be  by 
'Creditor. — ^Manifestly,  before  a  trustee  is  elected  some  one  must  have 
"the  right  to  prosecute  appeal  and  petitions  for  review ;  and  where  the  order 
■complained  of  was  entered  on  an  application  made  before  the  election  of 
trustee,  the  original  applicant  is  a  competent  party. ^°  , 

§  2834.  Appeal  by  One  Party  Does  Not  Necessarily  Bring  Up 
Case  as  to  All. — Appeal  by  one  party  does  not  necessarily  bring  up  the 
case  as  to  all  parties. 

Thus,  an  appeal  by  a  creditor,  where  there  is  no  cross  appeal  by  the 
bankrupt,  from  an  order  overruling  part  and  sustaining  part  of  the  cred- 
itor's exceptions  to  the  trustee's  report  of  exempted  property,  does  not 
bring  up  the  bankrupt's  case,  and  the  bankrupt  may  not  move  to  dismiss 
the  creditor's  appeal  upon  the  ground  that  the  court  was  without  juris- 
diction.^^ 

§  2835.  Appeal  Not  Dismissed  for  Lack  of  Necessary  Parties 
Where  Not  Parties  Below  but  Represented  by  Trustee. — Appeal  will 
not  be  dismissed  for  lack  of  necessary  parties,  where  the  parties  alleged 
to  be  necessary  were  not  parties  below ;  and,  where  they  were  represented 
solely  by  the  trustee  below,  they  must  be  deemed  sufficiently  represented 
by  him  in  the  appellate  court.^^ 

§  2836.  Joint  Appeal. — All  parties  aggrieved  by  a  final  decision, 
whereby  a  bill  in  equity  or  a  petition  in  bankruptcy  is  dismissed,  may  join 
in  an  appeal,  although  some  complain  of  one  alleged  error  and  some  of 
another;  because,  on  such  an  appeal,  all  prior  rulings  are  reviewable. ^^ 

Where,  upon  the  determination  of  a  question  affecting  the  distinct  in- 
terests of  several  claimants,  the  court  enters  a  single  judgment  and  allows 
a  joint  appeal,  a  motion  to  dismiss,  upon  the  ground  that  the  interests  of 
the  petitioner  are  not  joint,  will  be  denied. ^^ 

The  established  rule  of  the  federal  appellate  courts  requiring  all  parties 
against  whom  a  judgment  or  decree  is  rendered,  in  the  absence  of  sever- 
ance, to  join  in  suing  out  a  writ  of  error  or  prosecuting  an  appeal  there- 
trom,  only  applies  to  a  joint  judgment  or  decree  against  such  parties;  it 

10.  Clark  v.  Pidcock^  12  A.  B.  R.  309,  129  Fed.  745  (C.  C.  A.  N.  J.):  In  this 
case  the  assignee  of  a  creditor  had  applied  for  the  reopening  of  an  estate  as 
not  having  been  fully  administered.  At  the  same  time  he  procured  a  restrain- 
ing order.  On  the  hearing  of  the  restraining  order  it  was  dissolved  but  a  trus- 
tee was  appointed.  The  court  held  the  creditor's  assignee  was  a  competent 
party  on  review. 

11.  McGahan  v.  Anderson,  7  A.  B.  R.  641,  113  Fed.  115  (CCA    S    C) 

12.  In  re  Utt,  5  A.  B.  R.  383,  105  Fed.  754  (C.  C.  A.  Ills.).  Compare,  to  same 
effect,  Love  v.  Export  Storage  Co.,  16  A.  B.  R.  171,  143  Fed.  1  (C.  C.  A.  Tenn.;. 
But  compare,  Ayres  v.  Cone,  14  A.  B.  R.  745,  138  Fed.  778  (C.  C.  A.  S.  Dak). 

13.  Stevens  v.  Nave-McCord  Co.,  17  A.  B.  R.  609,  150  Fed.  71  (C    C   A    Colo  ) 

14.  Crim  v.  Woodford,  14  A.  B.  R.  302,  136  Fed.  34  (C.  C    A.  W    Va  ) 


§  2838  PARTIES  ON  APPEAI.  AND  ERROR.  1657 

has  no  application  to  separate  judgments  or  decrees  against  such  parties, 
though  rendered  at  the  same  time  and  contained  in  the  same  entry. 

Trustees  in  bankruptcy,  who,  as  individuals,  are,  by  agreement  of  the 
contending  parties,  mere  stakeholders  of  a  fund  in  controversy,  are  not 
necessary  parties  as  individuals  to  an  appeal  from  such  part  of  a  decree 
as  determines  that  one  of  the  parties  is  entitled  to  the  fund ;  nor  need  they 
be  made  respondents. ^^ 

§  2837.  Omitted  Parties  Made  Parties  on  Appeal. — Omitted  parties 
may,  under  certain  circumstances,  be  made  parties  on  appeal  ;^'^  likewise, 
on  review.^"     But  laches  will  bar  the  right. ^^ 

§  2838.  Creditors  Assenting  to  Composition,  Necessary  Parties 
on  Appeal  from  Confirmation. — On  appeal  from  an  order  confirming 
a  composition,  creditors  who  have  assented  thereto  and  have  received  their 
money  are  necessary  parties. ^^ 

15.  Love  v.  Export  Storage  Co.,  16  A.  B.  R.  171,  143  Fed.  1  (C.  C.  A.  Tenn.). 

16.  Impliedly,  Gray  v.  Mercantile  Co.,  14  A.  B.  R.'780,  138  Fed.  344  (C.  C. 
A.  N.  Dak.). 

17.  Allgair  v.  Fisher,  16  A.  B.  R.  278,  143  Fed.  962  (C.  C.  A.  N.  J.). 

18.  Gray  v.  Mercantile  Co.,  14  A.  B.  R.  780.  138  Fed.  344  (C.  C.  A.  N.  Dak.). 

19.  Marshall  Field  &  Co.  v.  Wolf  Bros.  Dry  Goods  Co.,  9  A.  B.  R.  693,  120 
Fed.  815  (C.  C.  A.  Ark.). 


CHAPTER  LVII. 
Ruvie;w  of  the;  Referee's  Order  by  the  Judge. 

Synopsis  of  Chapter. 
§  2839.   Review  of  Referee's   Orders — Jurisdiction. 

DIVISION  1. 

§  2840.  Order  Must  Be  Made. 

§  2841.  Order   Must   Be   Final,   Not  Interlocutory:     Case   Not  to   Be   Reviewed 

Pieremeal. 
§  2842.  Exception  to  Be  Taken  to  Order. 

§  2843.  Also  to  Finding  of  Fact,  Else  Conclusive  on  Reveiw. 
§  2844.  Exceptions  Must  Be  Specific,  Not  "Broadside." 
§  2845.  But  No  Formal  "Exceptions"  Need  Be  "Filed." 
§  2846.  Petition  for  Review  Must  Be   Filed. 
§  2847.   Petition  Must  Set  Forth  Errors  Complained  of. 
§  2848.  But  New  Facts  May  Not  Be  Set  Up,  Changing  Case. 
§  2849.  And  Should  Pray  for  Review  of  Referee's  Order. 
§  2850.  Petition  to  Be  Filed  with  Referee. 
§  2851.  Time  Limited  for  Filing  Petition  for  Review. 
§  2852.  Certificate  of  Question,  Summary  of   Evidence,   Findings  and   Order   of 

Referee,  Requisite. 
§  2853.  Certificate,  Though  Referee's,  May  Be  Prepared  by  Counsel. 
§  2854.   Record  on  Review  to  Show  Certificate. 

§  2855.   Not  Entire  Evidence  but  Only  "Summary"  to  Be  Certified. 
§  2856.  Remedies  for  Incomplete   Record. 
§  2857.  Referee  Also  to  Certify  Findings  of  Fact. 

§  2858.  Precise  Question  for  Review  to  Be  Stated  Clearly  and  Distinctly. 
§  2859.  Petition  and  Certificate  Transmitted  by  Referee  to  District  Clerk. 
§  2860.  Stay  of  Execution  or  Order. 

DIVISION  2. 

§  2861.   Referee's   Order   and   Finding   Presumed   Correct,   until    ^Manifest   Error 

Shown. 
§  2862.  Points    Not    Discussed    below    Nevertheless    Considered    if    Sufficiently 

Appearing  in   Record. 
§  2863.   Remanding  for  Further  Testimony  Where  Referee's  Order  Disallowing 

Claim  at  Close  of  Claimant's   Evidence  in  Chief  Reversed. 

§  2839.  Review  of  Referee's  Orders— Jurisdiction. — To  correct  the 
errors  of  referees  in  bankruptcy,  power  is  vested  in  courts  of  bankruptcy, 
by  clause  10  of  §  2  of  the  act  to  "consider  and  confirm,  modify  or  over- 
rule, or  return  with  instructions  for  further  proceedings  records  and  find^ 
ings  certified  to  them  by  referees. "^ 

1.    Bankr.  Act,  §  38.     In  re  Home  Discount  Co.,  17  A.  B.  R.  175  (D.  C.  Ala.). 


§   2840  REVIEW    OF    referee's   ORDER.  1659 

Brown  v.  Persons,  10  A.  B.  R.  422  (C.  C.  A.  Pa.):  "The  jurisdiction  with 
which  a  referee  is  invested  is  made  expressly  subject  to  review  by  the  judge 
of  a  court  of  bankruptcy." 

Ellis  z'.  Krulewitch,  15  A.  B.  R.  617,  141  Fed.  954  (C.  C.  A.):  "By  §  38  *  *  * 
every  act  of  a  referee  in  bankruptcy  is  subject  to  review  by  the  judge." 

The  supreme  court,  in  carrying  out  the  purpose  of  this  section,  has  laid 
down  Order  No.  XXVII  regulating  the  manner  of  procedure  to  obtain  a 
review  by  the  judge.     It  reads  as  follows : 

"When  a  bankrupt,  creditor,  trustee,  or  other  person  shall  desire  a  review  by 
the  judge  of  any  order  made  by  the  referee,  he  shall  file  with  the  referee,  his 
petition  therefor,  setting  out  the  error  complained  of;  and  the  referee  shall 
forthwith  certify  to  the  judge  the  question  presented,  a  summary  of  the  evidence 
relating  thereto,  and  the  finding  and  order  of  the  referee  thereon." 

And  review  may  not  be  had  unless  the  prescribed  method  is  carried 
out.2 

A  party  may  not  ignore  the  order  of  the  referee ;  and  then,  on  pro- 
ceedings in  contempt,  bring  forward  in  defense  matters  litigated  before 
the  referee. 

In  re  Home  Discount  Co.,  17  A.  B.  R.  175  (D.  C.  Ala,):  "He  cannot  ignore 
the  order  until  the  referee  under  §  41  certifies  his  disobedience  to  the  judge,  and 
then  bring  forward  again  in  his  defense,  matter  contested  before  the  referee 
prior  to  the  making  of  the  order,  provided  the  order  itself  be  not  void.  'The 
method  of  correcting  error  is  by  appeal,  and  not  by  disobedience.'  " 

Division  1. 
Procedure  to  Review  Referee's  Rulings, 
§  2840.  Order  Must  Be  Made.— An  order  must  be  made.-" 

In  re  Chambers,  Calder  &  Co.,  6  A.  B.  R.  709,  98  Fed.  865  (Ref.  R.  I.) :  "A 
petition  *  *  *  does  not  comply  *  *  *  where  it  asks  for  a  review  of  the 
decision  of  the  referee,  instead  of  a  review  of  the  order  of  the  referee." 

In  re  Reukauflf,  14  A.  B.  R.  344,  135  Fed.  251  (D.  C.  Pa.):     "Certainly  in  the 

2.  In  re  Home  Discount  Co.,  17  A.  B.  R.  175  (D.  C.  Ala.). 

Formalities. — "This  court  (Mass.)  requires  no  particular  formalities  to  be  ob- 
served in  seeking  a  review  bv  the  judge  of  the  orders  or  other  proceedings  of 
a  referee."  In  re  Swift,  9  A.'B.  R.  237  (D.  C.  Mass.):  If  the  matter  in  dispute 
i»  substantially  set  forth  that  is  enough.     Ibid. 

General  Subject,  of  Review  of  Referee's  Orders. — Upon  the  general  subject 
of  reviews  of  referee's  rulings,  see  In  re  DeGottardi,  7  A.  B.  R.  723,  114  Fed. 
328   (D.  C.  Calif.). 

In  re  Taft,  13  A.  B.  R.  417,  133  Fed.  511  (C.  C.  A.  Ohio);  In  re  Russell. 
5  A.  B.  R.  566,  105  Fed.  501  (D.  C.  Calif.);  In  re  Smith.  2  A.  B.  R.  190,  93  Fed. 
791  (D.  C.  Tex.);  In  re  Schiller,  2  A.  B.  R.  704,  96  Fed.  400  (D.  C.  Va.);  In  re 
Kelly  Dry  Goods  Co.,  4  A.  B.  R.  528,  102  Fed.  747  CD.  C.  Wis.); 
Crim  z:  Woodford,  14  A.  B.  R.  302,  136  Fed.  34  (C.  C.  A.  W.  Va.). 

Conduct  of  Proceedings  and  Record  to  Give  Opportunity  for  Fair  Review. — 
The  referee  should  so  conduct  his  proceedings  and  make  up  his  records  that 
a  full  and  fair  review  of  his  acts  may  be  had.  In  re  Romine,  14  A.  B.  R.  785, 
138  Fed.  437  (D.  C.  W.  Va.). 

3.  Gen.  Order  No.  27. 


1660  REMINGTON    OX   BANKRUPTCY.  §    2841 

ordinary  proceeding  the  referee  must  make  some  order  or  ruling  before  there 
is  anything  to  certifj^" 

In  re  Smith,  2  A.  B.  R.  190,  93  Fed.  791  (D.  C.  Tex.):  "H  the  referee  pred- 
icated his  certificate  upon  Rule  XXVII  of  the  Supreme  Court,  it  does  not  ap- 
pear that  in  the  proceeding  before  him  anj^  order  was  made  upon  his  finding; 
nor  does  the  record  contain  a  petition  filed  by  the  bankrupt,  setting  out  any 
error  committed  by  the  referee." 

Compare,  In  re  Kelly  Dry  Goods  Co.,  4  A.  B.  R.  52S,  102  Fed.  747  (D.  C. 
Wis.) :  "Rule  27  of  the  General  Orders  in  Bankruptcy  *  *  *  provides  for 
'review  by  the  Judge  of  any  order  made  by  the  referee;'  but  I  do  not  understand 
that  a  general  review  of  the  proceedings  before  the  referee,  or  review  of  the 
rulings  not  directl}^  affecting  an  order  made,  is  intended  either  by  the  act  or 
rules." 

And  request  for  the  review  of  the  "decision,"-^  or  "opinion/'^  of  the 
coitrt  is  insufficient.*' 

There  can  be  no  review  of  a  question  certified  in  advance,  no  review  of 
a  hypothetical  question  actually  or  likely  to  arise  but  not  already  arisen. 

In  re  ReukaufT  Sons  &  Co.,  14  A.  B.  R.  344,  135  Fed.  251  (D.  C.  Pa.):  "The 
referee  made  no  order,  either  directing  or  refusing  to  direct  the  trustee  to  pay 
over  the  money  to  the  landlord,  but  of  his  own  motion  certified  the  question, 
whether  the  taxes  had  priority  to  the  landlord's  claim.  There  was  no  petition 
for  review,  and  indeed  there  was  nothing  to  which  such  a  petition  could  apply. 
In  effect,  the  referee  is  asking  the  court's  opinion  on  a  question  which  he  fore- 
sees may  arise,  upon  which  he  desires  to  be  advised.  I  find  nothing  in  the 
Bankrupt  Act  or  in  the  general  orders  or  forms,  to  sanction  such  a  proceed- 
ing.   *    rt'    ^ 

"Both  §  39  and  the  order  thus  quoted  contemplate  that  there  shall  be  a  con- 
tested matter,  a  finding  or  an  order,  and  a  party  aggrieved,  and  I  see  no  in- 
dication anywhere  that  the  judge  may  be  required  to  answer  questions  before 
the  referee  himself  takes  action." 

Perhaps,  however,  exceptional  cases  might  arise  warranting  the  referee 
in  presenting  a  question  to  the  judge  for  decision  without  an  order.''' 

§  2841.  Order  Must  Be  Final,  Not  Interlocutory:  Case  Not  to  Be 
Reviewed  Piecemeal. — The  order  should  be  a  final  order,  not  an  inter- 
locutory order ;  and  the  case  may  not  be  brought  up  for  review  piece- 
meal. 

Impliedly,  In  re  Mullen,  4  A.  B.  R.  224,  101  Fed.  413  (D.  C.  Mass.):  "I  am 
also  inclined  to  think  it  would  have  been  more  regular  had  the  review  *  *  * 
been  made  to' await  a  decision  of  the  referee  upon  the  facts  involved.  It  is 
not  usually  convenient  for  this  court,  by  way  of  review,  to  deal  twice  with  the 
same  petition    *   *    *    once  upon  the  law  and  again  upon  the  facts." 

4.  In  re  Chambers,  Calder  &  Co.,  6  A.  B.   R.  709,  98  Fed.  865    (Ref.   R.   I.). 

5.  Analogously  (review  of  judge's  "opinion").  In  re  Boston  Dry  Goods  Co.', 
11  A.  B.  R.  79,  125  Fed.  226  (C.  C.  A.  Mass.). 

6.  See  post,  §  2849. 

7.  Apparently  to  sucli  effect,  obiter,  In  re  Reukauff,  14  A.  B.  R.  344,  135 
Fed.  251  (D.  C.  Pa.);  Apparently,  obiter.  In  re  Kelly  Dry  Goods  Co.,  4  A.  B. 
R.  258,  102  Fed.  797  (D.  C.  Wis.). 


§  2845  REVIEW  OF  referee's  order.  •  1661 

The  rulings  of  the  referee  made  from  time  to  time  during  the  progress 
of  a  particular  hearing  may  not  separately  be  reviewed,  whilst  the  hearing 
is  still  pending.  There  must  be  a  final  order  ending  the  controversy,  and 
then  all  errors  can  be  reviewed  at  one  time.^ 

Nor  may  there  be  a  general  review^  of  the  entire  proceedings.^ 

§  2842.  Exception  to  Be  Taken  to  Order.— Exception-  must  be  taken 
to  the  order  of  the  referee  complained  of.^*-' 

§  2843.  Also  to  Findings  of  Fact,  Else  Conclusive  on  Review. — If 

no  exceptions  are  filed  to  the  referee's  findings  of  fact,  the  findings  of 
fact  are  conclusive  on  review, ^^  even  if  the  ruling  or  order  made  thereon 
.is  duly  excepted  to. 

§  2844.  Exceptions  Must  Be  Specific,  Not  "Broadside."— The  ex- 
ceptions must  be  specific  and  not  broadside. ^- 

§  2845.    But    No    Formal  "Exceptions"    Need    Be    "Filed."— No 

formal  exceptions  to  the  rulings  or  findings  of  the  referee  need  be  filed. 

In  re  Swift,  9  A.  B.  R.  237,  118  Fed.  348  (D.  C.  Mass.):  "It  is  sufficient  to 
say  that  this  court  has  not  hitherto  required,  and  does  not  intend  to  require 
hereafter,  any  particular  formalities  to  be  observed  in  seeking  a  review  by  the 
judge  of  the  orders  or  other  proceedings  of  a  referee.  If  the  matter  in  dispute 
is  substantially  set  out,  that  is  enough.  No  formal  exceptions  to  the  referee's 
findings  or  rulings  need  be  filed.  If  this  practice  shall  seem  lax  to  some,  the 
answer  is  that  it  has  hitherto  been  found  convenient  in  this  district,  both  for 
the  judge  and  for  the  parties,  and  it  has  not  been  abused.  A  stricter  practice 
has  been  adopted  in  some  other  districts,  doubtless  because  it  has  been 
deemed  convenient  there." 

Special  master's  hearing  on  discharge:  In  re  Romine,  14  A.  B.  R.  785,  138 
Fed.  837  (D.  C.  W.  Va.,  affirmed  on  review  sub  nom.  Bk.  v.  Johnson,  16  A. 
B.  R.  210,  C.  C.  A.  W.  Va.):  "When  is  a  referee  required  to  certify  objections 
made  to  his  rulings  to  the  court  for  revision?  Must  he  do  so  every  time  a 
question  is  asked  which  he  rules  is  objectionable,  or  every  time  he  may  express 
an  opinion  dur;ng  its  taking,  touching  the  evidence?  Certainly  not.  The  very 
reason  for  the  establishment  of  the  first  proposition — that  he  is  to  take  down 
testimony  which  he  believes  and  rules  improper — is  for  the  very  purpose  of 
preventing  constant  and  vexatious  certificates  for  revision.  In  any  matter 
wherein  he  is  by  the  law  empowered  to  enter  orders  that  under  the  law  may  be- 
come  final   when  he   has   entered   such   an   order,   a  revision   may   be   had — a  re- 

8.  Compare,  inferentially,  In  re  Hawley,  8  A.  B.  R.  632,  116  Fed.  428  (D.  C. 
Iowa);  Blease  v.  Garlington,  92  U.  S.  1. 

9.  In  re  Kelly  Dry  Goods  Co.,  4  A.  B.  R.  528,  102  Fed.  747  (D.  C.  Wis.). 

10.  Impliedly,  Dressel  v.  North  State  Lumber  Co.,  9  A.  B.  R.  541,  119  Fed. 
531  (D.'C.  N.  Car.);  inferentially,  In  re  O'Connor,  9  A.  B.  R.  18  (D.  C.  Ga.). 

11.  In  re  Carver  &  Co.,  7  A.  B.  R.  539,  113   Fed.  138   (D.   C.  N.  C). 
Analogously,   In  re   Royal,  7  A.  B.  R.  636   (D.   C.  N.   Car.):     This,  however, 

was  a  case  where  the  referee  sat  as  special  master  on  a  discharge  hearing. 

12.  Dressel  v.  North  State  Lumt)er  Co.,  9  A.  B.  R.  541,  119  Fed.  531  (D.  C. 
N.  Car.). 


1662  REMINGTON    ON    BANKRUPTCY.  §    2848 

vision  of  his  judicial  act,  which,  unrevoked,  binds  parties  and  becomes  the  law 
of  the  case." 

Bank  z:  Johnson,  16  A.  B.  R.  210  (C.  C.  A.  W.  Va.,  affirming  In  re  Romine, 
14  A.  B.  R.  785,  138  Fed.  437,  D.  C.  W.  Va.)  :  "The  referee  therefore  was  right 
in  refusing  to  .stop  the  proceedings  and  certify  for  revision  his  rulings  upon  this 
testimonj'." 

In  re  Miner,  9  A.  B.  R.  100,  117  Fed.  953  (D.  C.  Ore.):  "Where  the  specific 
questions  as  to  the  correctness  of  the  referee's  finding  is  certified  for  review 
no  exception  is  necessary." 

But  compare.  In  re  Carver  &  Co.,  7  A.  B.  R.  539,  113  Fed.  128  (D.  C.  X.  C): 
"Where  no  exceptions  are  filed  to  the  report  of  the  referee,  his  findings  of  fact 
are  conclusive  on  review." 

However,  the  rule  dispensing  with  the  filing  of  formal  exceptions  does 
not  dispense  with  the  necessit}^  of  at  least  noting  some  exception  to  the 
order,  in  the  record. 

§  2846.  Petition  for  Review  Must  Be  Filed. — Second,  the  exceptor 
must  file  with  the  referee  a  petition  for  review. ^^ 

In  re  Hawley,  8  A.  B.  R.  632,  116  Fed.  428  (D.  C.  Iowa):  "It  does  not  appear 
that  the  creditors  asked  for  or  obtained  a  certification  of  any  question  con- 
nected with  this  claim  by  the  referee,  nor  did  the  creditors  petition  for  a  re- 
view of  the  ruling  of  the  referee  under  the  provisions  of  General  Order  27 
(89  Fed.  xi).  The  only  action  taken  by  the  creditors  contesting  the  claim  was 
to  file  in  this  court  on  June  6th,  1902,  certain  exceptions  to  the  rulings  of  the 
referee.  Such  .action,  however,  does  not  bring  before  the  court  for  review  the 
rulings  and  decisions  of  the  referee." 

In  re  Russell,  5  A.  B.  R.  566,  105  Fed.  501  (D.  C.  Calif.):  "It  does  not  appear 
from  the  certificate  of  the  referee  or  from  any  paper  returned  to  this  court  that 
any  petition  fcr  the  review  of  the  order  of  the  referee  rejecting  his  claim  has 
been  filed  by  him  with  the  referee.  In  the  absence  of  such  a  petition,  this  court 
is  not  authorized  to  review  the  action  of  the  referee." 

§  2847.  Petition  Must  Set  Forth  Errors  Complained  of. — There 
seems  to  be  no  official  form  for  a  petition  for  review ;  and  a  brief  state- 
ment of  the  order  entered  and  the  errors  complained  of  is  all  that  is  nec- 
essary.    The  petition  must  set  forth  the  errors  complained  of.^^ 

In  re  Taft,  13  A.  B.  R.  419,  133  Fed.  511  (C.  C.  A.  Ohio):  "It  is  therefore 
an  elementary  rule  of  procedure  that  the  petition  for  review  shall  set  out  the 
m.atters  of  law  which  we  are  asked  to  review." 

§  2848.  But  New  Facts  May  Not  Be  Set  Up,  Changing  Case.— But 
new  facts  may  not  be  set  up,  changing  the  case  on  review ;  unless  per- 
haps on  leave  granted  and  showing  made  of  newly-discovered  evidence 

13.  Gen.  Ord.  No.  27;  In  re  Smith,  2  A.  B.  R.  190,  93  Fed.  791  (D.  C.  Tex.). 
In   re   Schiller,   2   A.   B.    R.   704,  96    Fed.   400    (D.   C.   Va.) :    Although   in   this 

case   the   court  actually  did   consider   the   error   complained   of  without   a   peti- 
tion. 

14.  In  re  Chambers,  Calder  &  Co.,  6  A.  B.  R.  709  (Ref.  R.  I.);  In  re  Smith, 
2  A.  B.  R.  190  (D.  C.  Tex.);  In  re  Schiller,  2  A.  B.  R.  704,  96  Fed.  400  (D.  C. 
Va.).     Compare  post,  §  2948. 


§  2851  REVIEW  OF  referee's  order.  1663 

which  could  not  by  reasonable  diligence  have  been  produced  at  the  trial; 
which,  in  effect,  would  not  be  a  petition  for  review,  but  rather  a  motion 
for  a  rehearing  before  the  referee. 

In  re  Mclntyre,  16  A.  B.  R.  85,  142  Fed.  593  (D.  C.  W.  Va.) :  "But  after  he 
had  entered  his  final  order  adjudicating  the  matter  this  way,  Fouse,  by  petition, 
asks  a  review,  and  for  the  first  time  charges  substantially  that  the  lessors  by 
their  agent,  before  his  purchase  of  the  property,  represented  to  him  that  Depue 
had  adjusted  the  rent  and  upon  this  representation  he  was  induced  to  buy. 
This,  if  subtantiated,  would  make  an  altogether  dififerent  case  out  of  the  matter. 
*  *  *  The  petition  here  must  be  held  to  have  been  one  in  the  nature  of  a 
bill  of  review.  Such  bills  can  be  filed  for  errors  in  law  apparent  upon  the  face 
of  the  decree,  or  because  of  the  discovery  of  new  evidence  since  hearing,  which 
could  not  have  been  discovered  by  the  use  of  due  diligence  before  such  hearing. 
In  case  newly  discovered  evidence  is  set  up,  such  a  bill  can  only  be  filed  by 
express  leave  of  the  court,  and  great  caution  is  to  be  exercised  in  granting  such 
leave.  The  evidence  must  be  relevant,  material,  and  such  as  wotild  have  pro- 
duced a  different  result  had  it  been  used  at  the  hearing." 

§  2849.  And  Should  Pray  for  Review  of  Referee's  Order.— The 

petition  should  pray  for  review  of  the  "order"  of  the  referee,  not  of  his 
''decision  ;"^^  nor  of  his  "opinion. "^'^ 

§  2850.  Petition  to  Be  Filed  with  Referee. — This  petition  must  be 
filed  with  the  referee. ^^ 

§  2851.  Time  Limited  for  Filing  Petition  for  Review. — Neither  the 
statute,  forms  nor  General  Orders  in  Bankruptcy  provide  the  time  within 
which  the  party  aggrieved  by  the  referee's  rulings  must  file  his  petition 
for  review. ^^ 

Crim  V.  Woodford,  14  A.  B.  R.  302,  136  Fed.  34  (C.  C.  A.  W.  Va.):  "There 
is  nothing  in  the  Bankrupt  Act  nor  in  the  General  Orders  which  fixes  a  time 
within  which  petitions  for  review  of  the  referee's  decisions  must  be  filed.  Sec- 
tion 25  requires  that  in  the  cases  therein  enumerated  appeals  to  the  Circuit 
Courts  of  xA.ppeal  shall  be  taken  within  10  days  after  the  judgment  appealed 
from  has  been  rendered.  There  is  no  apparent  reason  why  a  longer  time  than 
this  should  be  allowed  for  the  filing  of  a  petition  for  a  review  of  the  order  of 
a  referee,  for  in  nearly  all  of  the  provisions  of  the  Bankruptcy  Act  which  re- 
quire notices  the  time  limit  of  10  days  is  adopted,  and  in  some  jurisdictions 
there   is   a   rule   to   that   efifect;   but   it   does   not  appear   that   there   is   any   such 

15.  In  re  Chambers,  Calder  &  Co.,  6  A.  B.  R.  709,  98  Fed.  865  (Ref.  R.  I.). 

16.  Analogously  (review  of  judge's  "opinion"  asked).  In  re  Boston  Dry 
Goods  Co.,  11  A.  B.  R.  97,  125  Fed.  226  (C.  C.  A.  Mass.).  But  compare  inad- 
vertent remark,  In  re  Taft,  13  A.  B.  R.  419,  133  Fed.  511  (C.  C.  A.  Ohio).  See 
ante,  §  2840. 

17.  In  re  Russell.  5  A.  B.  R.  566,  105  Fed.  501   (D.  C.  Calif.). 

18.  Bacon  v.  Roberts,  17  A.  B.  R.  424  (C.  C.  A.  N.  J.);  In  re  Grant,  16  A. 
B.  R.  246,  143  Fed.  661  (D.  C.  R.  I.);  In  re  Milgraum  &  Ost,  13  A.  B.  R.  337, 
133  Fed.  802  (D.  C.  Pa.);  In  re  Chambers,  Calder  &  Co.,  6  A.  B.  R.  709,  98 
Fed.  865  (Ref.  R.  I.);  analogously.  In  re  Worcester  Co.,  4  A.  B.  R.  501,  102 
Fed.  308   (C.  C.  A.  Mass.). 


1666  REMIXGTOX    OX    BAXKRUPTCY.  g   2855 

§  2855.  Not  Entire  Evidence  but  Only  "Summary"  to  Be  Certified. 

— The  referee  must  not  certify  up  the  whole  of  the  evidence,  but  only  a 
"summary"  of  it.-'' 

Crim  V.  Wocdford,  14  A.  B.  R.  30G,  136  Fed.  34  (C.  C.  A.  W.  Va.):  "The 
General  Order  (27)  above  cited,  is  intended,  manifestly,  to  carry  into  effect 
these  provisions,  so  as  to  avoid  as  far  as  possible  the  sending  of  the  original 
proofs  to  the  judge,  and  to  substitute  therefor,  where  the  ends  of  justice  would 
permit,  a  summary  thereof.  *  *  *  It  is  important  that  this  rule  be  enforced, 
for  in  the  manifold  and  onerous  duties  devolved  upon  the. district  judge  in  the 
adininistration  of  the  bankrupt  estates  he  ought  not  to  be  required  to  sift  out 
the  testimony  in  order  to  determine  the  exact  question  of  fact  which  could  be 
presented  in  "   suminary  of  the  evidence." 

In  re  Taft,  13  A.  B.  R.  419,  133  Fed.  511  (C.  C.  A.  Ohio):  "The  referee 
certified  the  whole  of  the  evidence  instead  of  certifying  a  summary  thereof,  as 
he  should  have  done  under  Gen.  Ord.  27." 

It  might  naturally  be  supposed  that  the  "summary  of  the  evidence" 
does  not  mean  that  the  statement  of  the  evidence  must  be  summary,  but 
that  it  may  be  summary  and  yet  be  sufficient.  There  could  be  no  objec- 
tion to  a  verbatim  recital  of  all  the  testimony  in  full,  if  the  referee's  find- 
ings of  fact  accompanied  it.  Such  recital  would  be  a  fairer  statement  of 
the  evidence  than  the  fairest  "summary."' 

Crim  V.  Woodford,  14  A.  B.  R.  307,  136  Fed.  34  (C.  C.  A.  W.  Va.):  "It  may 
well  be,  in  a  question  which  involved  the  bona  fides  of  the  claims  and  the 
pecuniary  co'i'iition  of  the  bankrupt  at  the  time  the  alleged  liens  were  executed, 
that  all  of  the  testiinonj'  taken  was  pertinent  to  the  issue,  and  that  no  summary 
thereof  that  the  referee  could  prepare  would  have  been  acceptable  to  the  par- 
ties to  the  controversy.  In  a  case  of  this  nature  every  question  and  answer 
presumably  has  some  bearing  upon  the  point  at  issue,  and  a  skilled  lawyer 
might  find  it  difficult  to  prepare  a  satisfactorj^  summary." 

Also,  compare  the  reasoning  of  the  court  in  In  re  Robertshaw  Mfg.  Co.,  14 
A.  B.  R.  342,  135  Fed.  220  (D.  C.  Pa.):  "In  fact,  the  judge  of  the  court  from 
which  the  appeal  is  taken  ought  not  in  the  least  interfere  in  the  discretion 
allowed  by  thi  general  terms  used  in  the  acts  of  Congress  and  rules  of  court 
in  designating  the  record  to  be  certified  in  cases  of  appeal  as  his  judgment  i^ 
to  be  reviewed,  and  his  opinion  of  the  importance  and  relevancy  of  matters 
contained  in  the  record  might,  in  the  estimation  of  counsel  for  one  side  or  the 
other,  be  as  faulty  as  it  is  claimed  his  judgment  is  from  which  an  appeal  is 
taken."  This  reasoning  would  equally  as  well  apply  to  the  referee's  attempts 
to  summarize  the  evidence. 

If  all  the  evidence  were  thus  certified  up,  there  would  not  necessarily 
be  any  confusion  resulting,  for  the  referee  would  then  also  certify  his 
findings  of  the  facts  proved  thereby. 

Xevcrtheless,  the  contrary  is  the  law  and  the  referee  must  not  certify 
up  the  whole  of  the  evidence.^" 

26.  Bankr.  Act,  §  .39  (a)  (5);  Gen.  Ord.  27;  Official  Form  Xo.  56;  Cunningham 
v.  Bank,  4  A.  B.  R.  192,  103  Fed.  903  (C.  C.  A.  Ky.). 

27.  Compare,  Cunningham  v.  Bank,  4  A.  B.  R.  192,  103  Fed.  903  (C.  C.  A. 
Ky.). 


§  2856  REVIEW  OF  referee's  order.  1667 

In  re  Kurtz,  11  A.  B.  R.  129,  125  Fed.  992  (D.  C.  Pa.):  "The  summary  of  the 
evidence  is  required  in  order  to  save  the  judge  the  labor  of  examining  w^hat 
i.s  often  a  mass  of.  testimony  on  many  different  questions,  and  of  extracting 
so  much  as  may  be  relevant  to  the  point  immediately  in  hand." 

This  certificate,  setting  forth  a  summary  of  the  evidence,  perhaps  is 
analogous  to  an  old  fashioned  bill  of  exceptions.  Litigants  are  so  accus- 
tomed in  these  days  of  shorthand  reporters  to  consider  the  only  permissible 
record  of  facts  to  be  a  verbatim  stenographic  report,  that  they  lose  sight 
of  the  real  law,  that  a  verbatim  report  is  not  recjuisite.  It  would  seem,  • 
ijpon  reason,  though  the  decisions  do  not  state  it  as  the  law,  that  this  cer- 
tificate of  facts  really  corresponds  to  a  bill  of  exceptions,. and  might  thus 
properly  be  a  verbatim  report  of  all  the  testimony  or  might  not  be  such, 
so.  long  as  it  shows  all  the  evidence  that  is  pertinent.^'^ 

Compare,  In  re  Cohen,  11  A.  B.  R.  443,  131  Fed.  391  (D.  C.  Mass.):  "Cred- 
itors prayed  a  recommital  of  the  certificate  in  order  that  the  referee  might 
certify  additicral  facts  and  evidence.  If  the  appellants  desire  that  the  judge 
shall  weigh  the  evidence  and  determine  questions  of  fact,  they  should  ordinarily 
procure  that  the  evidence  before  the  referee  is  taken  down  stenographically 
and  by  him  certified  to  the  judge.  If  this  be  deemed  inadvisable  on  account 
■of  expense  or  for  other  reasons,  the  parties  should  specifically  point  out  to 
the  referee  that  testimony  which  they  wish  him  to  summarize  in  his  report, 
and  they  should  ask  him  for  specific  findings  of  fact  on  which  they  may  rely 
at  the  hearing  before  the  judge." 

§  2856.  Remedies  for  Incomplete  Record. — The  parties  may  stip- 
ulate as  to  what  is  a  complete  record.-'^ 

Also  compare,  analogously,  In  re  Robertshaw  Mfg.  Co.,  14  A.  B.  R.  341,  135 
Fed.  220  (D.  C,  Pa.):  "The  practice  here  has  long  prevailed  of  counsel  agree- 
ing, by  stipulation  filed,  as  to  what  the  record  shall  contain,  and  in  seven  years 
there  has  only  been  found  one  case  where  there  was  a  disagreement,  but  when 
that  occurs  and  it  is  necessary  to  specify  the  record,  the  best  practice  which  has 
prevailed  in  the  local  and  in  other  districts,  is  to  require  the  appellant  to 
file  a  praecipe  with  the  clerk,  pointing  out  specifically  what  records  in  his 
Judgment  are  necessary  to  be  certified  on  the  appeal." 

The  judge  may  order  the  record  completed. 

Obiter,  Crim  v.  Woodford,  14  A.  B.  R.  307,  136  Fed.  34  (C.  C.  A.  W.  Va.) : 
"If  the  judge  desired  a  summary  of  the  evidence,  it  was  clearly  within  his 
province  to  drect  the  referee  to  prepare  and  submit  it,  and  either  party  might 
have  moved  for  an  order  to  that  effect;  but  the  record  does  not  show  that  any 
such  motion  was  made.  It  may  well  be,  in  a  question  which  involved  the  bona 
fides  of  the  claims  and  the  pecuniarj^  condition  of  the  bankrupt  at  the  time  the 
alleged  liens  were  executed,  that  all  of  the  testimony  taken  was  pertinent  to 
the   issue,   and   that  no  summary  thereof  that   the   referee   could  prepare   would 

28.  Compare,  Cunningham  v.  Bank,  4  A.  B.  R.  192,  103  Fed.  932  (C.  C.  A. 
Ky.). 

29.  Bankr.  Act,  §  29  (5)  and  (9).  Compare,  analogouslv,  Cunningham  v.  Bank, 
4  A.  B.  R.  192,  103  Fed.  932   (C.  C.  A.  Ky.). 

As  to  proper  practice  when  the  parties  disagree,  analogously,  see  In  re  Robert- 
shaw Mfg.  Co.,  14  A.  B.  R.  341,  135  Fed.  220  (D.  C.  Pa.). 


1668  REMINGTON    ON   BANKRUPTCY.  ^   2857 

have  been  acceptable  to  the  parties  to  the  controversy.  In  a  case  of  this  nature 
every  question  and  answer  presumably  has  some  bearing  upon  the  point  at  issue, 
and  a  skilled  lawyer  might  find  it  difficult  to  prepare  a  satisfactory  summary. 
However  that  may  be,  it  seems  to  us  that  it  would  be  manifestly  unjust  to  de- 
prive petitioners  of  the  opportunity  to  be  heard  upon  questions  of  substantial 
right  because  an  officer  of  the  court  omitted  to  summarize  the  evidence  in  the 
belief  that  all  of  the  testimony  would  the  better  present  the  questions  at  issue 
than  any  part  of  it  which  he  might  undertake  to  summarize." 

If  the  verbatim  report  of  the  evidence  is  sent  up  instead  of  the 
proper  mere  summary  of  it.  nevertheless  the  reviewing  court  will  not 
deprive  the  petitioners  on  review  of  a  hearing.^"  If  the  original  tes- 
timony is  sent  up  along  with  the  certificate-,  the  reviewing  court  will,  per- 
haps, not  be  bound  by  the  findings. 

Inferentially,  Mason  z:  Wolkowich,  17  A.  B.  R.  719  (C.  C.  A.  Mass.):  "Of 
course,  as  the  proofs  are  before  us,  we  are  bound  only  so  far  as  our  judgment 
approves  them,  by  either  the  certificate  of  the  referee  or  the  opinion  of  the 
learned  judge  of  the  District  Court,  which,  as  is  well  settled,  is  in  no  sense  a 
formal  finding  of  the  facts." 

§  2857.  Referee  Also  to  Certify  Findings  of  Fact. — The  referee 
should  also  certify  his  findings  as  to  the  facts.-^^ 

In  re  Shea,  11  A.  B.  R.  209,  126  Fed.  153  (C.  C.  A.  Mass.):  "There  is  no 
specific  finding  of  facts  by  either  the  referee  or  the  District  Court,  so  that 
questions  of  la-v  are  not  made  for  us  in  the  manner  in  which  we  have  said  in 
our  opinion.  *  *  *  (In  re  Boston  Dry  Goods  Co.)  the  same  should  be  pre- 
sented." 

In  re  Yost,  9  A.  B.  R.  154,  117  Fed.  792  (D.  C.  Pa.):  "This  record  is  in  rather 
an  unsatisfactory  shape;  the  referee  has  found  no  facts,  and  I  have  therefore 
to  pass  upon  the  evidence  which  has  been  returned  by  him,  without  any  knowl- 
edge of  the  witnesses  by  which  to  judge  of  their  credibilitj-." 

Sometimes,  however,  the  record  may  be  helped  out  by  presumptions. 

Instance,  In  re  Shea,  11  A.  B.  R.  209,  126  Fed.  153  (C.  C.  A.  Mass.):  "Never- 
theless, we  are  able  to  make  an  adjudication  to  a  limited  extent,  and  probably 
so  far  as  to  cover  the  only  substantial  questions  that  could  in  any  way  have 
been  brought  before  us. 

"First   of  all,   the   omission   from   the   record   of  any   specific   finding  by   the 

30.  Crim  z'.  Woodford,  14  A.  B.  R.  302,  136  Fed.  34  (C.  C.  A.  W.  Va.),  quoted 
supra,  §  2855. 

31.  In  re  Taft,  13  A.  B.  R.  419,  133  Fed.  511  (C.  C.  A.  Ohio);  inferentially, 
Burleigh  v.  Foreman,  12  A.  B.  R.  88,  125  Fed.  217  (C.  C.  A.  Mass.);  inferentially, 
Dressell  v.  North  State  Lumber  Co.,  9  A.  B.  R.  542,  119  Fed.  531  (D.  C.  N. 
Car.);  Gen.  Ord.  No.  27. 

Bankr.  Act,  §  39  (a)  (5) :  "Referee  shall  make  up  records  embodying  the 
evidence,  or  the  substance  thereof  as  agreed  upon  by  the  parties  in  all  contested 
matters  arising  before  them,  whenever  requested  to  do  so  by  either  of  the  par- 
ties thereto,  together  with  their  findings  therein,  and  transmit  them  to  the 
judge." 

DeVries  z:  Shanahan.  10  A.  B.  R.  518,  122  Fed.  629  (C.  C.  A.  Md.);  analo- 
gously, In  re  Boston  Dry  Goods  Co.,  11  A.  B.  R.  97,  125  Fed.  226  (C.  C.  A. 
Mass.). 


§  2860  REVIEW  OF  referee's  order.  1669 

district  court  that  the  value  of  the  equity  in  question  exceeded  $500  is  not 
material,  because,  on  the  ordinary  rule,  in  the  absence  of  anything-  to  the  con- 
trary, the  court  must  be  assumed  to  have  acted  rightly,  and  therefore  it  must 
be  further  assumed  that  it  found  that  the  value  of  the  equity  was  triple  the  price 
which  the  trustee  was  to  receive  therefor." 

§  2858.  Precise  Question  for  Review  to  Be  Stated  Clearly  *nd 
Distinctly. — The  referee  shall  also  distinctly  and  clearly  state  and  certify 
the  precise  cjuestion  for  review.^- 

§  2859.  Petition  and  Certificate  Transmitted  by  Referee  to  Dis- 
trict Clerk. — Fourth,  after  the  referee  has  certified  to  the  facts,  he 
transmits  the  petition  for  review,  the  certificate  of  facts  and  necessary 
files  to  the  district  clerk,  for  the  use  of  the  judge.  And  the  order  made 
by  the  referee,  then,  is  not  executed,  if  stayed,  until  the  judge  has  acted 
on  the  petition  for  review  and  has  certified  to  the  referee  his  affirmance, 
reversal  or  modification  of  the  order.^^ 

§  2860.  Stay  of  Execution  of  Order. — If  the  trustee  files  the  petition 
for  review,  no  stay  bond  is  required  in  order  to  stay  the  execution  of  the 
referee's  order  pending  the  review. 

But  if  other  parties  file  the  petition,  it  has  been  held  that  a  stay  bond 
may  be  required. 

In  re  Home  Discount  Co.,  17  A.  B.  R.  189  (D.  C.  Ala.):  "The  insistence 
that  the  court  has  no  right  to  make  any  rule  for  securing  the  costs  on  the  peti- 
tions for  review  of  the  referee's  order,  and  that  it  is  powerless  to  exact  bond 
or  other  indemnity  for  the  protection  of  the  opposite  party  during  the  stay 
of  the  order,  pending  the  review,  is  wholly  unfounded.  In  the  absence  of  statu- 
tory provisions  or  rules  of  court,  a  petition  to  review  or  revise  an  order  of  the 
referee  does  not  in  and  of  itself  operate  a  supersedeas  of  the  order,  and  whether 
or  not  it  shall  have  that  effect,  rests  in  the  discretion  of  the  reviewing  or  re- 
viewed authority  in  the  particular  case.  It  has  few  of  the  properties  of  an  ap- 
peal. Primarily,  at  least,  it  does  not  contemplate  a  trial  de  novo.  It  removes 
nothing  out  of  the  District  Court  into  any  other  court.  The  petition,  though 
filed  with  the  referee,  is  really  addressed  to  the  District  Court,  and  asks  action 
by  that  court  on  a  record  which  remains  in  that  court.  It  is  no  more  than  a 
petition  for  a  rehearing,  or  a  motion  for  a  new  trial,  in  the  court  of  original 
jurisdiction,  while  the  judgment  or  decree  remains  in  the  power  of  the  court 
during  the  term,  and  does  not  stay  execution,  unless  in  pursuance  of  rules  or 
by  special  order.  Aside  from  the  inherent  power  of  courts  to  provide  rules  for 
administering  of  justice  therein,  the  court  has  abundant  statutory  authority  to 
make  all  reasonable  regulations,  not  inconsistent  with  those  prescribed  by  law 
and  the  rules  made  by  the  Supreme  Court,  which  it  deems  needful  to  prevent 
abuses  or  frivolous  petitions  for  review.     One  of  the  rules  in  force,  when  the 

32.  In  re  Milgraum  &  Ost,  13  A.  B.  R.  337,  133  Fed.  802  (D.  C.  Pa.). 

33.  Subsequent  Orders  of  Referee  as  to  Same  Subject  Not.  Reviewable  Except 
by  Additional  Petitions  for  Review. — Review  of  subsequent  orders  of  the  referee 
on  the  same  matter  may  be  had  only  on  separate  petition.  Ellis  v.  Krulewitcn,  15 
A.  B.  R.  617,  141  Fed.  954  (C.  C.  A.). 


1670  REMINGTON    ON    BANKRUPTCY,  §   2861 

referee's  order  was  made,  provided  'that  on  hearings  before  referees  in  bank- 
ruptcy, and. on  nisi  proceedings  when  the  rule  is  made  final,  the  filing  of  a 
petition  for  review  shall  not  act  as  a  supersedeas,  unless  the  unsuccessful  party- 
shall  file  bond,  with  surety,  in  such  amount  as  may  be  required  by  the  referee 
or  judge,  conditioned  to  pay  any  damages  growing  out  of  said  appeal,  in  event 
the  same  is  not  successfully  prosecuted.  Failure  to  comply  with  the  order  of 
the  refere'e,  unless  petition  for  review  and  bond  be  filed  and  allowed  by  the 
referee,  may  be  treated  as  a  contempt  of  court.'  The  only  regulation  in  the 
statute  regarding  the  revision  of  orders  of  referees  is  that  they  are  'subject 
always  to  review  by  the  judge.'  No.  27  of  the  General  Orders  in  Bankruptcy 
prescribes  only  the  form  in  which  the  matter  for  review  shall  be  presented  to 
the  judge,  and  does  not  deal  with  any  question  of  costs  or  the  efifect  of  the 
filing  of  the  petition  as  a  supersedeas.  Nearly  every  order  the  District  Court 
makes  is  subject  to  revision  on  appeal  or  writ  of  error." 

Division  2. 
Hearing  upon  Review  of  Referee's  Order. 

§  2861.  Referee's  Order  and  Finding  Presumed  Correct,  until 
Manifest  Error  Shown.— Upon  review,  the  referee's  order  is  to  have 
tlie  presumption  in  its  favor;  also  his  findings  of  fact. 

It  is  for  the  petitioner  on  review  to  prove  there  is  error.  The  review- 
ing court  will  hesitate  especially  to  overturn  the  referee's  findings  of  fact; 
for  the  referee  is  in  the  better  position  to  judge  of  the  testimony,  since 
he  heard  it  given,  and  noted  the  demeanor  of  the  witnesses,  and  was  in  a 
position  where  he  could  feel  the  weight  of  the  spoken  words.  Only  man- 
ifest error  will  justify  reversal  on  the  facts.'"-^ 

In  re  Stout,  6  A.  B.  R.  505,  109  Fed.  794  (D.  C.  Mo.):  "It  is  the  recognized 
rule  of  the  Federal  courts — and  especially  in  matters  of  bankruptcy — that  on 
review  of  the  decision  of  a  referee,  based  upon  his  conclusions  on  questions  of 

34.  In  re  West,  8  A.  B.  R.  564,  116  Fed.  767  (D.  C.  Ga.) ;  In  re  Shriver,  10  A. 
B.  R.  746,  125  Fed.  511  (D.  C.  Pa.);  In  re  O'Connor,  9  A.  B.  R.  18,  114  Fed.  777 
(D.  C.  Ga.);  Smith  v.  Evans,  17  A.  B.  R.  433,  148  Fed.  89  (C.  C.  A.  Ills.);  In  re 
Covington,  6  A.  B.  R.  373,  110  Fed.  143  (D.  C.  N.  Car.),  although  this  case  has 
to  do  with  his  findings  as  special  master,  on  discharge.  In  re  Waxelbaum,  4 
A  B  R  120,  101  Fed.  228  (D.  C.  Ga.) ;  inferentially.  In  re  Abbey  Press,  13  A.  B. 
R.  11,  134  Fed.  51  (C.  C.  A.  N.  Y.) ;  In  re  Royce  Dry  Goods  Co.,  13  A.  B.  R. 
257,  133  Fed.  100  (D.  C.  Mo.);  In  re  Tudor,  2  A.  B.  R.  808,  96  Fed.  942  (D.  C. 
Colo.);  In  re  Rider,  3  A.  B.  R.  192,  96  Fed.  811  (D.  C.  N.  Y.). 

In  re  Rome  Planing  Mills,  3  A.  B.  R.  766,  99  Fed.  937  (D.  C.  N.  Y.),  a  case  of 
the  review  of  a  referee's  findings  as  to  insolvency,  upon  reference  to  him,  as 
special  master,  of  a  petition  for  adjudication. 

In  re  Romine,  14  A.  B.  R.  788,  138  Fed.  837  (D.  C.  W.  Va..  affirmed  sub  nom. 
Bk.  V.  Johnson,  16  A.  B.  R.  206),  although  this  case  has  to  do  with  his  findings 
as  special  master  on  discharge. 

In  re  Stephens,  8  A.  B.  R.  53,  114  Fed.  192  (D.  C.  Ga.);  In  re  Miner,  9  A.  B. 
R.  100,  117  Fed.  953  (D.  C.  Ore.);  In  re  Baerncopf,  9  A.  B.  R.  133,  117  Fed.  975 
(D.  C.  Pa.),  although  the  case  was  that  of  a  special  master's  findings  on  dis- 
charge.' 

Love  V.  Export  Storage  Co.,  16  A.  B.  R.  171,  198,  143  Fed.  1  (C.  C.  A.  Te'nn.); 
In  re  Harr,  16  A.  B.  R.  213  (D.  C.  Mo.);  analogously,  (Master  on  discharge).  In 
re  Lafleche,  6  A.  B.  R.  483,  109  Fed.  307  (D.  C.  Vt.) ;  analogouslv,  (master  on 
discharge).  In  re  Forth,  18  A.  B.  R.  186,  151  Fed.  951  (D.  C.  N.  Y.);  analo- 
gously, (master  on  discharge).  In  re  Harr,  16  A.  B.  R.  213  (D.  C.  Mo.). 


§   2861  REVIEW   OF   referee's   ORDER.  1671 

fact,  the  court  will  not  reverse  his  findings  unless  the  same  -are  so  manifestly 
erroneous  as  to  invoke  the  sense  of  justice  of  the  court." 

In  re  Noyes  Bros.,  11  A.  B.  R.  506,  127  Fed.  286  (C.  C.  A.  Mass.):  "Such 
question  of  fact  having  been  passed  upon  by  the  referee  and  the  District  Court, 
it  cannot  be  disturbed  here  upon  appeal  unless  the  proposition  is  clearly  and 
unmistakably  established  that  the  finding  of  the  tribunals  below  was  erroneous. 
The  statute  authorizing  appeals  like  the  one  here  expressly  provides  for  'ap- 
peals as  in  equity  cases.'  That  kind  of  an  appeal  being  authorized,  the  proceed- 
ing thereunder  would  conform  itself,  as  far  as  may  be  consistent  with  justice,. 
to  the  ordinary  course  of  equity  procedure;  and  it  is  a  familiar  rule  in  equity 
that  an  appellate  court  will  not  interfere  with  findings  of  fact  under  such  cir- 
cumstances as  appear  here,  unless  the  findings  are  clearly  erroneous,  or,  as  it 
is  sometimes  expressed,  manifestly  against  the  weight  of  evidence.  Some  cases 
go  so  far  as  to  bold  that  a  chancellor's  findings  will  not  be  reversed  where  the 
appellate  court  cannot  see  that  the  decree  is  right,  and  where  the  evidence  raises, 
some  doubt  as  to  its  correctness.  But  it  is  not  necessary  to  go  to  that  extreme 
in  this  case,  fcr,  while  the  evidence  presented  by  the  record  is  meager,  there  is 
nothing  in  the  case  to  lead  us  to  doubt  the  correctness  of  the  finding  below." 

Couts  V.  Townsend,  11  A.  B.  R.  126,  126  Fed.  249  (D.  C.  Ky.) :  "The  referee 
had  before  him  the  only  witness  who  testified,  and  certainly  the  conclusion 
reached  could  fairly  be  drawn  from  the  testimony.  While  it  might  possibly 
admit  of  doubt,  still  the  finding  by  the  referee  is  not,  to  say  the  least,  so  flag- 
rantly against  the  evidence  as  to  require  it  to  be  set  aside.  It  is  not  the  habit 
of  the  court,  under  these  circumstances,  to  overrule  its  referees  on  mere  find- 
ings of  facts,  though  the  court  should  not  hesitate  to  do  so  if  the  findings  were 
flagrantly  against  the  weight  of  the  testimony." 

Southern  Pine  Co.  v.  Savannah  Trust  Co.,  15  A.  B.  R.  621,  141  Fed.  802 
(C.  C.  A.  Ga.) :  "The  established  rule  in  such  cases,  from  which  we  see  no 
reason  for  departing  in  the  present  instance,  seems  to  be  that  the  findings  of 
fact,  dependent  upon  conflicting  testimony,  by  a  judge,  master,  or  a  referee, 
who  sees  and  hears  the  witnesses  testify,  have  every  reasonable  presumption  in 
their  favor,  and  should  not  be  set  aside  or  modified,  unless  it  clearlj^  appears 
that  there  was  error  or  mistake  on  his  part." 

In  re  Simon  &  Sternberg,  18  A.  B.  R.  205  (D.  C.  Ga.) :  "The  finding  of  the 
referee  is  entitled  to  the  same  consideration  as  that  of  a  district  judge  upon 
conflicting  evidence,  as  in  an  adiniralty  case,  or  in  any  other  case  where  the 
judges  pass  upon  the  facts,  if  that  finding  is  under  review  by  an  appellate 
tribunal.  The  Inca  (C.  C.  A.),  148  Fed.  367  (opinion  of  Meek,  District  Judge, 
sitting  with  Pardee  and  Shelby,  Circuit  Judges).  This  court  is  an  appellate 
tribunal  from  the  rulings  of  the  referee,  but  when  there  is  evidence  to  support 
those  rulings — however  ingenious  the  suggestions  to  the  contrary — the  court 
will  not  be  insistent  to  scan  those  rulings  so  as  to  find  some  point  on  which 
there  might  be  a  difiference  as  to  their  correctness.  A  fine  argument  can  be 
based  upon  almost  any  accumulation  of  facts,  both  pro  and  con,  but,  when  the 
court  has  intrusted  this  particular  duty  to  the  referee,  and  it  has  been  apparently 
well  performed,  the  ruling  should  not  be  disturbed." 

In  re  William_s,  9  A.  B.  R.  731,  120  Fed.  542  (D.  C.  Ga.):  "The  report  of  the 
referee  on  questions  of  fact  is  presumed  to  be  correct  until  the  contrary  is 
shown." 

Inferentially,  In  re  Kolin,  13  A.  B.  R.  533,  134  Fed.  557  (C.  C.  A.  Ills.):  "The 
master  had  the  witnesses  before  him,  saw  their  manner  of  testifying,  and  is 
better  able  to  solve  the  riddle  than  we  could  upon  this  record." 

In  re   Lawrence,  13  A.  B.  R.  798   (C.   C.  A.  N.  Y.) :   "This  court  should  not 


1672  REMINGTON    ON   BANKRUPTCY.  §    2862 

■disturb  these  findings,  unless  they  are  manifestly  unsupported  bj-  the  evi- 
'dence." 

Compare,  Buckingham  v.  Estes,  12  A.  B.  R.  182,  128  Fed.  584  (C.  C.  A. 
Tenn.) :  "The  master  and  the  court  below  concurred  in  the  finding  of  facts, 
and  when  that  is  the  case  this  court  will  not  reverse  or  modify  unless  a  very 
plain  mistake  is  definitely  pointed  out." 

In  re  Wood,  2  A.  B.  R.  695,  95  Fed.  946  (D.  C.  N.  Car.):  "But  when  there 
is  manifest  error,  as  in  this  case,  the  judge  will  look  into  the  record,  and 
correct  the  error." 

In  re  Shults,  14  A.  B.  R.  378,  135  Fed.  623  (D.  C.  X.  Y.) :  "The  cases 
hold  that  a  referee  must  exercise  sound  judicial  discretion  in  disposing  uf 
questions  of  fact,  and  his  conclusions  ordinarily  will  not  be  disturbed  unless 
manifestly   against  the  weight  of  evidence." 

In  re  Cole,  14  A.  B.  R.  389  (D.  C.  Me.,  affirmed  in  144  Fed.  392,  16  A.  B. 
R.  302):  "The  referee  had  the  witnesses  before  him.  He  conducted  the  ex- 
amination of  the  bankrupt  herself,  saw  her  appearance,  and  was  the  proper 
tribunal  to  dec'de  the  question  of  fact  submitted  to  him.  After  full  examina- 
tion of  the  testimony,  I  cannot  say  that  I  should  have  come  to  a  different 
conclusion.  In  any  event,  the  conclusion  of  a  competent  referee,  who  has 
seen    the    witnesses,    is    entitled    to    great    weight." 

But  see  In  re  Grant  Bros.,  9  A.  B.  R.  93,  118  Fed.  73  (D.  C.  X.  Y.):  "The 
referee  has  found  in  favor  of  Grant's  contention,  and  ordinarily  his  finding 
would  be  accepted,  as  he  had  the  opportunity  of  hearing  Grant  and  other 
witnesses  testily,  though  not  Stearns,  whose  testimony  was  taken  by  deposi- 
tion in  Colorado,  but  my  special  attention  to  the  matter  is  asked  by  reason  of 
certain  testimony  in  the  case  which  it  is  urged  must  have  been  overlooked  by 
the  referee  or  was  ignored  by  him  because  inconsistent  with  Grant's  state- 
ments on  the  witness  stand.  The  contention  is,  that  from  Grant's  own  letters, 
from  the  books,  kept  by  him  and  from  his  own  admissions  when  examined,  it 
conclusively  appears  that  his  testimony  with  respect  to  the  agreement  is  un- 
v/orthy  of  belief.     *     *     * 

"The  decision  of  the  referee  is  reversed  and  the  matter  is  remitted  to  him  for 
further  proceedings  in  conformity  herewith." 

In  re  Marsh,  8  A.  B.  R.  588,  116  Fed.  396  (D.  C.  Conn.):  "In  the  deci- 
sion of  questions  of  fact  I  must  depend  upon  the  conclusions  arrived  at  by 
the  referee.    He  has  every  opportunity  for  arriving  at  the  truth." 

But  no  precise  quantitative  weight  will  be  assigned  to  the  referee's  find- 
ings of  fact;35  and  where  there  is  no  distinct  finding  of  fact  upon  the 
particular  question  involved,  the  reviewing  court  will  not  attach  the  weight 
that  is  usually  accorded  to  the  findings  of  courts  of  first  instance.-'''^ 

§  2862.  Points  Not  Discussed  Below  Nevertheless  Considered  if 
Sufficiently  Appearing  in  Record. — It  has  been  held,  contrary  to  the 
usual  rules  in  appellate  courts,  that  points  not  adverted  to  in  the  hearing 
before  the  referee,  may  nevertheless  be  considered  on  review  if  appearing 
sufficiently  in  the  record.^'^ 

35.  In  re  Swift,  9  A.  B.  R.  237,  118  Fed.  343  (D.  C.  Mass.). 

36.  Burleigh  v.  Foreman,  12  A.  B.  R.  91  (C.  C.  A.  Mass.). 

37.  Compare,  contra  rule  as  to  review  of  orders  of  the  district  court,  by  the 
circuit  court  of  appeals,  post,  §  3001. 


§   2863  REVIEW    OF   referee's   ORDER.  1673 

In  re  Wilde's  Sons,  16  A.  B.  R.  38G,  14-1  Fed.  972  (C.  C.  A.  N.  Y.):  "We 
are  clearly  of  the  opinion  that  when  a  District  Court  is  reviewing  an  order 
or  report  of  a  referee  in  bankruptcy,  under  the  very  broad  provisions  of  § 
2  (10)  it  may  properly  consider  any  point  presented  by  the  record  then 
before  it  whether  such  point  was  or  was  not  discussed  before  or  by  the 
referee." 

§  2863.  Remanding  for  Further  Testimony  Where  Referee's  Or- 
der Disallowing  Claim  at  Close  of  Claimant's  Evidence  in  Chief 
Reversed. — On  reversal  of  the  referee's  order  disallowjng  a  claim,  on 
motion,  at  the  close  of  the  claimant's  case  in  chief,  the  reviewing  court 
should  not  allow  the  claim,  but  should  remand  the  case  with  instructions 
to  give  the  trustee  a  chance  to  introduce  evidence  in  defense  of  his  ob- 
jection.^s 

38.   In  re  Livingston,  16  A.  B.  R.  385,  144  Fed.  971  (C.  C.  A.  N.  Y.). 


CHAPTER  LVIII. 

Appeals  x\nd  Error  Proceedings  from  District  Courts  to  the  Circuit 

Courts  of  Appeals. 

Synopsis    of   Chapter. 

§  2864.  Fundamental    Distinction   between   Steps   "in    Bankruptcy    Proceedings" 

Proper    and    Incidental    "Controversies." 
§  2865.  Thus,    Adjudication    of    Bankruptcy,    or    Its    Refusal,    a    Question    "in 

Bankruptcy    Proceedings"    Proper. 
§  2866.  Likewise,    Allowance    or    Refusal    of    Exemptions. 
§  2867.  And    Allowance    or    Rejection    of    Claim    to    Share    in    Dividends    or    in 

Marshaling    of    Firm    and    Individual    Estates. 
§  2868.  And    Allowance    or    Disallowance    of    Costs    and    Expenses    of    Admin- 
istration— Such   as  Attorneys'   Fees. 
§  2869.  Even  Validity  and  Priority  of  Lien  May  Be,  if  Incident  to  Allowance 

or  Rejection  of  Creditor's  Claim  for  Share  in   Dividends. 
§  2870.  But  if  Sole   Controversy   About   Lien    or    Priority,    None   About   Debt, 

Not  a   Question   "in   Bankruptcy   Proceedings"    Proper. 
§  2871.  And  Claim  Controverted  Must  Be  Creditor's  Claim,  Else  Not. 
§  2872.  Seizures  on  Warrants  to  Marshal,  Proceedings  in  Bankruptcy. 
§  2873.  But    Trustee's    Petitions    for    Summary    Surrender    of    Property,    Not 

Bankruptcy    Proceedings    Proper. 
§  2874.  Neither  Are  Trustee's  Plenary  Suits  in  U.  S.  District  Court  to  Recover 

Property    Fraudulently    or    Preferentially    Transferred. 
§  287.i.  Nor    Are     Intervening     Petitions     Claiming     Property     in     Custody     of 

Bankruptcy   Court,   or  Liens   Thereon. 
§  2876.  But    Orders   of   Sale   and    Controversies    Incident   Thereto,    Proceedings 

in    Bankruptcy    Proper    and    Not    "Controversies." 
§  2877.  Unless    Real    Controversy.  Not    about    Order    of    Sale    nor    Claim,    but 

about  Lien  or  Title  Itself. 
§  2878.  Thus,  Trustee's  Petition  to  Marshal  Liens  on  Property  in  His  Custody 

and   to    Enjoin    Interference    Not   "Proceedings   in    Bankruptcy"    but 

"Controversy." 
§  2879.  Marshaling   of    Firm   and    Individual    Assets    and    Debts    in    Partnership 

Bankruptcies. 
§  2880.  When  to  Appeal,  When  to  Petition  for  Revision. 
§  2881.  Distinction  between  Writ  of  Error  and  Appeal,  Preserved. 
§  2882.  Distinctions  between  §  24  (b)  and  §§  24  (a)  and  25  (a). 
§  2883.  Resort  to  Appeal  or  Petition  for  Review  on  Error,  Optional  in  Proper 

Case. 
§  2884.  Thus,  in  "Controversies." 

§  2885.  If  Facts  Undisputed,  Petition  to  Revise  Only  Remedy. 
§  2886.  If  Facts  Disputed,  May  Be  Reviewed  Only  if  Appeal  Available. 
§  2887.  Holdings  That  Appeal  under  §  25  (a)  Exclusive  of  Error. 
§  2888.  Holdings  that  Optional   Even  in  Three   Cases   Where  Appeal   Provided 

under  §  25   (a). 

DIVISION  1. 

subdivision  "a." 

§  2889.  Appeals  in  Bankruptcy  Proceedings  Proper. 
§  2890.  Order  Appealed  from  Must  Be  Final  Order. 


REVIEW    IN    CIRCUIT    COURT    OF    APPEALS.  1675 

§  2891.  Right  of  Appeal  Cannot  Be  Enlarged  nor  Restricted  by  Court. 

§  2892.   Such  Appeals   Permissible   Only  as   to   Adjudication,   Discharge   and  Al- 
lowance of  Claims. 

§  2893.  First:     Appeals  from  Adjudications  or  Refusals  to  Adjudge  Bankrupt. 
■  §  2894.  But  No  Appeal  if  Jury  Trial  Had. 

§  2895.  Second:      Appeals    from   Judgments    Granting   or   Denying   Discharge. 

§  2896.   Includes   Confirming  or   Refusing   to   Confirm   Composition. 

§  2897.  Also  Dismissals  of  Discharge  for  Want  of  Prosecution. 

§  2898.  Third:     Appeals  from  Allowance  or  Rejection  of  Claims. 

§  2899.  Amount  in  Dispute,  Not  Amount  of  Entire  Claim,  Governs. 

§  2900.  Debt    Must    Have    Been    Owed    by    Bankrupt,    Mere    Lien    on    Property 
Insufficient. 

§  2901.  Where  Lien  or  Priority  Incident  to  Disputed  Debt,  Its  Validity,  Prior- 
ity, etc.,  Appealable. 

§  2902.  But  Where  Debt  Undisputed  Mere  Fact  That  Disputed  Lien  or  Priority 
Incident  to  Debt  Insufficient. 

§  2903.  Not  to   Split   Case  and  Dismiss   Portion  Affecting  Lien   or  Priority. 

§  2904.  "Claim"  Refers  Only  to  Money  Demand. 

§  2905.  And  to  "Claims"  Presented  for  Proof  against  Bankrupt  Estate. 

§  2906.  And  Not  to  "Claims"  for  Exempt  Property. 

§  2907.  Nor,  Probably,  to  "Claims"  for  Costs  and  Expenses  of  Administration. 

§  2908.  Nor  to  "Claims"  of  Strangers  to  Property  in  Trustee's  Possession,  nor 
of  Trustee  to  Property  in  Strangers'  Hands. 

§  2909.  Disallowance  of  Claim  because  Preference  Not  Surrendered,  Appealable. 

§  2910.  Rejection  or  Allowance  of  Set-Off  Appealable. 

§  2911.  No  Appeal  in  Bankruptcy  Proceedings  Proper  Except  in  Three  Cases  of 
§  25   (a)   Mentioned. 

SUBDIVISION    "b." 

§  2912.  Appeals  in  "Controversies  Arising  in  Bankruptcy  Proceedings." 

§  2913.  Appeal  a  Matter  of  Right,  Not  to  Be  Enlarged  nor  Restricted  by  Court. 

§   2914.  Under  §  24  (a)  Both  Law  and  Fact  Rev'ewed.  , 

§  2915.  Litigant  Has  Option,  in  Proper  Case,  "Either  to  Appeal  or  Petition  for 
Revision. 

§  2916.  May  Treat  "Appeals"  as  Petitions  for  Revision. 

§  2917.  But  Not  Where  Questions  All  of  Fact. 

§  2918.  Simultaneous  Appeal  and  Petition  for  Review. 

§  2919.   Single  Assignment  of  Errors  Sufficient  Where  Appeal  and  Error  Simul-  . 
taneously  Prosecuted. 

§  2920.  Appeals  in  "Controversies"  Only  Allowable  in  Cases  witl^in  Act  of  Con- 
gress Establishing  Circuit  Courts  of  Appeal. 

§  2921.  Decree  in   Equity  Not   Reviewable  by  Writ  of   Error,   nor  Judgment   at 
Law  by  Appeal. 

§  2922.   Must  Be  "Final"  Order. 

§  2923.  Validity,   Priority,  etc..  of  Liens   Appealable  as  "Controversies." 

§  2924.  Summary    Order   oh    Third    Party   to    Surrender   Assets,   Appealable    as 
"Controversy." 

§  2925.   Likewise,  Summary  Order  on  Trustee  or  Receiver  to  Surrender  Assets 
to  Third  Party. 

§  2926.  Plenary  Suits  in  U.  S.  District  Courts  by  Adverse  Claimants  in  Posses- 
sion to  Enjoin  Trustees,  Appealable  as  "Controversies." 

§  2927.  Also,    Plenary    Suits   by   Trustees   in    U.    S.    District   Court   to    Recover 
Property  Preferentially  or  Fraudulently  Transferred. 


1676  REMINGTON    ON   BANKRUPTCY. 

DIVISION  2. 

SUP.DIVISION    "a." 

§  2928.  Error  Proceedings  Sole  Method  of  Review  in  Bankruptcy  Proceedings 
Proper  Except  in  Three  Cases  of  25  (a). 

§  2929.  Limited  to  Matters  of  Law  under  §  24  (b). 

§  2930.  Thus,  Exemptions  Reviewable  Only  by  Petition  to  Review. 

§  2931.  Likewise,  Reopening  or  Refusal  to  Reopen  Closed  Estates. 

§  2932.  Administrative  Orders  Reviewable  under  §  24  (b). 

§  2933.  Attorneys'  Fees  and  Other  Expenses  of  Administration. 

§  2934.  Likewise,  Exemption  Matters. 

§  2935.  Orders  on  Nonbankrupt  Partners  to  File  Schedules  or  Surrender  Firm 
Assets. 

§  2936.  Likewise  Distribution  between   Firm  and  Individual   Creditors. 

§  2937.  Also,  Orders  of  Sale  and  Controversies  Incident  Thereto,  Reviewable 
under  §  24  (b). 

§  2938.  And  Summary  Orders  on  Bankrupts  and  Others  to  Surrender  Assets  or 
Execute  Instruments. 

§  2939.  Allowances  to  Widow  and  Children  on  Death  of  Bankrupt  Pending  Ad- 
judication. 

SUBDIVISION    "b." 

§  2940.  Error  Proceedings  in  "Controversies"  and  in  Independent  Plenary  Suits. 

§  2941.  Whether  §  24  Applies  Only  to  Orders  in  Proceedings  in  Bankruptcy 
Themselves,  Not  to  Orders  in  Independent  Plenary  Suits. 

§  2942.  Section  24  (b)  Authorizes  Review  Only  of  Law,  Not  Facts. 

§  2943.  Intervening  Petitions  Claiming  Property  or  Funds  in  Custody  of  Bank- 
ruptcy Court  or  Claiming  Liens  or  Other  Interests  Therein  Review- 
able by  Petition  to  Revise. 

DIVISION  3. 
§  2944.  Brief  Resume. 

SUBDIVISION    "a." 

§  2945.  Procedure  on  Error  to  Be  by  Writ  of  Error  or  Petition  to  Revise,  and 
Notice. 

§  2946.  If  by  Petition  to  Revise,  Filing  of  Petition  and  Notice,  Sole  Require- 
ments. 

§  2947.  Petition  for  Review  to  Be  Filed. 

§  2948.   Petition  to  Set  Forth  Order  Complained  of. 

§  2449.  How  Far  to  Set  Forth  Issue  on  Which  Erroneous  Order  Made. 

§  2950.  Record  to  Set  Forth  Order  Complained  of. 

§  2951.  And  to  Present,  Clearly,  Issues  of  Law. 

§  2952.  Also,  to  Show  Insufficiency  of  Grounds  for  Order. 

§  2953.  Whether  Testimony  and  Other  Evidence  to  Appear. 

§  2954.  Not  by  "Bill  of  Exceptions." 

§  2955.  Findings  of  Fact  or  Equivalent,  Requisite. 

§  2956.  Mere  "Opinion"  of  District  Court  Insufficient,  unless  Made  Part  of 
Record. 

§  2957.  But  May  Be  Looked  to. 

§  2958.  Due  Notice  to  Be  Given. 


REVIEW    IN    CIRCUIT    COURT    OF    APPEALS.  1677 

SUBDIVISION    "b." 

§  2959.  Procedure  on  Appeal  Follows  Equity  Appeal  Procedure. 

§  2960.  xA-pplication  for  Leave,  Allowance,  Citation  and  Notice. 

§  2961.  Assignment  of  Errors  to  Be  Filed. 

§  2962.  Complete  Record  to  Be  Made. 

§  2963.  Need  Certify  Only  So  Much  as  Sufificient  to  Exhibit  Errors. 

§  2964.  But  Discretion  of  Parties  in  Making  Up  Record  Not  to  Be  Interfered 
with. 

§  2965.  Parties  May  Stipulate  as  to  What  Necessary. 

§  2966.  Must  Be  Stipulated  or  Certified  That  Complete  Record  of  All  Necessary. 

§  2967.  Record  Imports  Verity,  May  Not  Be  Contradicted,  Explained  or  Ex- 
tended by  Evidence  Dehors. 

§  2968.  Remedies  for  Incomplete  Transcript  on  Appeal. 

§  2969.  Whether  Findings  of  Fact  Requisite  on  Appeal. 

§  2970.  Record  to  Show  Assignment  of  Errors,  Prayer  for  Reversal  and  Cita- 
tion. 

§  2971.  Prayer  for  Reversal  and  Citation  Waivable,  but  Assignment  of  Errors 
Not. 

§  2972.  Also,  Time  of  Perfection  of  Appellate  Proceedings. 

§  2973.  Citation  May  Be  Granted  after  Expiration  of  Appeal  Time. 

§  2974.  Record  Sufificient  if  Contains  All  on  Which  District  Court  Acted  if  Not 
All  on  Which  Referee  Acted. 

§  2975.  Record  to  Be  Printed. 


§  2976.  Bond  Not  Requisite,  on  Petition  for  Review,  Except. 

§  2977.  But  Requisite  on  Appeal. 

§  2978.  And  Approval  of  Security,  Perfects  and  "Allows"  Appeal. 

§  2979.  Perfecting  Appeal  Transfers  Jurisdiction  and  No  Further  Steps  Possible. 

§  2980.  Trustee  Need  Not  Give  Bond. 

SUBDIVISION    "d." 

§  2981.  Time  for  Appeal  in  Bankruptcy  Proceedings  Proper. 

§  2982.  May  Be  Heard  by  Appellate  Court  in  Term  or  Vacation. 

§  2983.  Record  to  Show  Time  of  Appeal. 

§  2984.  Date  of  Entering  Order  or  Judgment,  Not  of  Actual  Rendition,  Fixes 
Date. 

§  2985.  Appeal  Not  "Taken"  until  "Allowance"  Made,  and  Bond  and  Citation 
Filed. 

§  2986.  But  Delay  in  Bond  and  Citation  Not  Fatal,  if  Appeal  "Allowed"  in  Time. 

§  2987.  Application  for  Extension  Too  Late  after  Expiration  of  Time. 

§  2988.  Time  for  Appeal  Begins  from  Date  of  Entry  of  Order  Overruling  Mo- 
tion for  Rehearing. 

§  2989.  Motion  for  Rehearing  Not  Filed  in  Time,  Insufficient. 

§  2990.  Reviving  Lost  Right  of  Appeal  by  ]^Iotion  Pretended  to  Be  for  Re- 
consideration of  Merits. 

§  2991.  Alias  Order  of  Adjudication  Ineffective  to  Revive  Lost  Right  of  Ap- 
peal. 

§  2992.  Time  for  Appeal  in  "Controversies,"  Limited  by  Act  Creating  Circuit 
Court  of  Appeals. 

§  2993.  No  Express  Time  for  Petition  for  Review. 

§  2994.   But  Dismissed  for  Laches. 


1678  REMINGTON   ON   BANKRUPTCY.  §    2864 

§  2995.  But  Not  Dismissed  unless  Delay  Unreasonable. 

§  2996.  Delay  Excusable  on  Good  Cause  Shown. 

§  2997.   By  Analogy  Should  Be  Filed  within  Six  Months'  Time. 

§  2998.  At  Least  in  All  Cases  of  "Controversies." 

§  2999.  Time    for    Review    in    Bankruptcy    Proceedings    Proper,    Ten    Days    by 

Analogy. 
§  3000.   Rehearing  Where  Order  Based  on  Authority  Since  Overruled. 

SUBDIVISION    "t." 

§  3001.  Objections  Not  Raised  Below,  Not  Heard  Above. 

§  3002.  Record  to  Show  Same  Issues  Presented  to  Court  Below. 

§  3003.  Even  Jurisdictional  Questions,  unless  Nonwaivable,  Not  Considered  for 
First  Time  on  Review. 

§  3004.  But  Will  Be  if  Not  Waivable,  Though  Not  Considered  Below  nor  As- 
signed as  Error. 

§  3005.  Plain  Error  Noticed,  Though  Not   Raised  by  Parties  Themselves. 

§  3006.  Issues  Directly  Raised  by  Pleadings  Considered,  Though  First  Made 
Point  of  on  Appeal. 

§  3007.  Findings  of  Fact,  or  Equivalent,  Essential  to  Show  Issues  Same. 

§  3008.  "Opinion"  of  Court  Insufficient,  Though  May  Be  "Looked  to." 

§  3009.  Judgment  on  Facts  Not  Disturbed  Except  for  Manifest  Error. 

§  3010.  Trivialities  Not  Considered — Substantial  Interest  to  Be  Shown. 

§  3011.  Clerical  Mistakes  Disregarded. 

SUBDIVISION    "F." 
§  3012.   Obedience  to  Mandate   Enforced  by  Mandamus. 

§  2864.  Fundamental  Distinction  between  Steps  "in  Bankruptcy- 
Proceedings"  Proper  and  Incidental  "Controversies."— The  distinc- 
tion between  questions  arising  in  the  regular  course  of  bankruptcy  pro- 
ceedings and  incidental  controversies  at  law  or  in  equity  arising  out  of 
bankruptcy  proceedings,  lies  at  the  base  of  the  subject  of  appeals  and  re- 
views in  bankruptcy  matters  under  the  present  law.^ 

The  subject  of  the  review  of  referees'  orders  by  the  district  judge  just 
completed  is  simple.  But  the  subject  of  reviews  and  appeals  in  bankruptcy 
matters  from  the  district  court  and  from  the  circuit  courts  of  appeal  to 
the  higher  courts  is  confusing.^  There -is  a  fundamental  distinction  taken 
between  questions  arising  in  bankruptcy  proceedings  that,  if  kept  in  mind, 
v/ill  tend  to  clear  up  many  difficulties. 

There  arc,  as  already  seen,  various  steps  in  the  progress  of  bankruptcy 
proceedings  that  are  required  to  be  taken  in  order  to  carry  out  the  peculiar 

1.  Bankr.  Act,  §§  23,  24,  25. 

The  distinction  here  involved  has  no  essential  relation  to  the  custody  of  the 
"res,"  as  was  the  case  when  the  matters  of  "Conflict  of  Jurisdiction."  "Jurisdic- 
tion over  Adverse  Claimants,"  "Summary  Orders  on  Bankrupts,  etc.,"  "Marshal- 
ing of  Liens,"  etc.,  were  under  consideration.  The  distinction  here  turns  not  on 
the  possession  of  the  property  but  upon  the  nature  of  the  controversy. 

2.  U.  S.  Circuit  Court  No  Jurisdiction  on  Appeal  nor  Error  to  Review  Or- 
ders of  Bankruptcy  Court.— The  circuit  courts  of  the  United  States  are  without 
appellate  jurisdiction  in  bankruptcy  matters.  Hatch  z'  Curtin  16  A  B  R  629 
146  Fed.  200  (U.  S.  C.  C.  Mass.).  '  •      •      •         . 


§   2864  REVIEW    IN    CIRCUIT    COURT    OF    APPEALS.  1679 

objects  of  bankruptcy  law;  among  which  might  be  mentioned  the  adju- 
dication of  the  bankrupt,  the  allowance  of  claims  for  the  purpose  of  shar- 
ing in  dividends,  the  allowance  and  payment  of  expenses  and  costs  of  ad- 
ministration, the  sale  of  assets,  the  declaration  of  dividends,  the  discharge 
of  the  bankrupt,"  the  setting  apart  of  exempt  property,  etc..  etc.  These 
steps  are  peculiar  to  bankruptcy  law  and  are  necessarily  taken  in  the 
leglilar  course  of  almost  every  bankruptcy  case,  and  issues  arising  therein 
are  differentiated  from  other  issues  that  may  come  up  in  the  course  of  the 
litigation.^ 

There  are  numberless  other  questions  likely  to  arise  in  the  course  of  ad- 
ministering bankrupt  estates  that  do  not  involve  the  peculiar  features  of 
bankruptcy  law,  nor  directly  aid  in  carrying  out  its  special  objects,  but  are 
incidental  to  the  administration  of  almost  any  estate  in  the  hands  of  any 
court.  Such  are  controversies  arising  between  the  trustee  and  strangers 
who  claim  he  has  possession  of  property  belonging  to  them,  or  in  which 
they  have  an  interest,  or  on  which  they  have  a  lien ;  and  between  the  trus- 
tee and  other  persons,  who,  he  claims,  have  possession  of  property  belong- 
mg  to  him,  etc.,  etc.  Such  controversies  have  to  be  decided,  and  the  bank- 
ruptcy court  is,  in  many  instances,  as  previously  noted,  the  proper  forum 
for  their  decision ;  but  they  are  rather  controversies  arising  out  of  the  set- 
tlement of  bankruptcy  estates,  than  controversies  peculiar  to  bankruptcy 
proceedings  themselves.  They  are  not  steps  in  the  regular  course  of  bank- 
ruptcy proceedings.  This,  at  any  rate,  is  the  distinction  evidently  drawn  in 
practice  under  the  present  law. 

Now,  questions  peculiar  to  bankruptcy  proceedings  proper  can  only  be 
brought  to  higher  courts  for  review  or  on  appeal  under  the  terms  and  lim- 
itations and  in  the  cases  prescribed  by  the  bankruptcy  law  itself,  in  §§  24 
(b)  and  25  (a).  But  these  other  controversies,  these  that  are  common 
and  general  incidents  to  the  administration  of  estates  everywhere,  that  is 
to  say,  "controversies  arising  in  the  course  of  the  administration  of  bank- 
rupt estates,"  are  unafifected  by  the  provisions  of  the  bankruptcy  law  it- 
self regulating  appeals,  and  are  regulated  wholly  by  the  usual  practice  in 
federal  courts  in  similar  cases,  as  adopted  by  §§  24  (a)  and  (b)  of  the  act. 
This  distinction  lies  at  the  base  of  the  subject  of  reviews  and  appeals  in 
bankruptcy  matters  under  the  present  law."^ 

3.  Edelstein  v.  U.  S.,  17  A.  B.  R.  654,  149  Fed.  636   (C.  C.  A.  Minn.).      ■ 

4.  Note  to  Steele  v.  Buel,  5  A.  B.  R.  165,  104  Fed.  968  (C.  C.  A.  Iowa);  note 
to  Bear  v.  Chase,  3  A.  B.  R.  746,  99  Fed.  920  (C.  C.  A.  S.  Car.). 

Also,  see  Hewitt  v.  Berlin  Machine  Co.,  11  A.  B.  R.  709,  194  U.  S.  296;  Elliott 
V.  Toeppner,  9  A.  B.  R.  50,  187  U.  S.  327,  333,  334.  Compare,  Spencer  v.  Duplan 
Silk  Co.,  11  A.  B.  R.  563,  19r  U.  S.  526;  Hutchinson  v.  Otis,  10  A.  B.  R.  275, 
123  Fed.  14  (C.  C.  A.  Mass.,  affirmed  in  10  A.  B.  R.  138,  190  U.  S.  552);  Dmican 
V.  Landis,  5  A.  B.  R.  649,  106  Fed.  839  (C.  C.  A.  Pa.);  In  re  Cohimbia  Real  E— 
tate  Co.,  7  A.  B.  R.  441,  112  Fed.  645  (C.  C.  A.  Ind.) ;  In  re  Rusch,  8  A.  B.  R. 
520,  116  Fed.  270  (C.  C.  A.  Wis.);  Doroshow  v.  Ott,  14  A.  B.  R.  37,  134  Fed. 
740  (C.  C.  A.  N.  J.);  Mason  r.  Wolkowich,  17  A.  B.  R.  715,  150  Fed.  699  (C.  C. 
A.  Mass.);  Odell  z:  Boyden,  17  A.  B.  R.  759  (C.  C.  A.  Ohio);  In  re  Levitt,  11 
A.  B.  R.  411  (D.  C.  Wis.). 


1680  REMINGTON    ON   BANKRUPTCY.  ^   2864 

Bank  v.  Chicago  Title  &  Trust  Co.,  14  A.  B.  R.  102,  198  U.  S.  280  (reversing 
11  A.  B.  R.  79) :  "The  distinction  between  steps  in  bankruptcy  proceedings 
proper  and  controversies  arising  out  of  the  settlement  of  the  estates  of  bank- 
rupts is  recognized  in  §§  23,  24  and  25  of  the  present  Act,  and  the  provisions  as 
to  revision  in  matter  of  law  and  appeals  were  framed  and  must  be  construed  in 
view  of  that  distinction." 

First  Nat'l  Bk.  of  Denver  v.  Klug,  8  A.  B.  R.  13,  186  U.  S.  202:  "The  words 
'bankruptcy  proceedings'  are  used  in  this  section  (§  25)  in  contradistinction  to 
controversies  arising  out  of  the  settlement  of  the  estates  of  bankrupts,  as  they 
are  also  so  used  in  §§  23  and  24.     *     *     * 

"Apart  from  §  25,  the  Circuit  Courts  of  Appeal  have  jurisdiction  on  petition 
to  superintend  and  revise  any  matter  of  law  in  bankruptcy  proceedings  and 
also  jurisdiction  of  controversies  over  which  they  would  have  appellate  juris- 
diction in  other  cases.  The  decisions  of  those  courts  might  be  reviewed  here  on 
certiorari,  or  in  certain  cases  by  appeal,  under  §  6  of  the  act  of  1891." 

Holden  v.  Stratton,  10  A.  B.  R.  789,  191  U.  S.  155:  "The  distinction  between 
steps  in  bankruptcy  proceedings  proper  and  controversies  arising  out  of  the 
settlement  of  the  estates  of  bankrupts  is  recognized  in  §§  23,  24  and  25  of  the 
present  act,  and  the  provisions  as  to  revision  in  matters  of  law  and  appeals  were 
framed  and  must  be  construed  in  view  of  that  distinction." 

Compare  (although  the  distinction  being  made  in  the  decision  is  between  pro- 
ceedings and  controversies  together  concerning  property  in  the  custody  of  the 
bankruptcy  court,  as  distinct  from  independent  suits  concerning  property  not 
in  its  custody,  rather  than  between  proceedings  themselves  and  controversies), 
Bardes  v.  Bank,  4  A.  B.  R.  170,  178  U.  S.  524:  "In  Lathrop  v.  Drake  (1875),  91 
U.  S.  516,  the  jurisdiction  conferred  on  the  District  Courts  and  the  Circuit 
Courts  of  the  United  States  by  the  Bankrupt  Act  of  1867  was  defined  by  this 
court  speaking  by  Mr.  Justice  Bradley,  as  consisting  of  'two  distinct  classes: 
first,  jurisdiction,  as  a  court  of  bankruptcy,  over  the  proceedings  in  bankruptcy, 
initiated  by-  the  petition,  and  ending  in  the  distribution  of  assets  amongst  the 
creditors,  and  the  discharge  or  refusal  of  a  discharge  of  the  bankrupt;  secondly, 
jurisdiction,  as  an  ordinary  court,  of  suits  at  law  or  in  equity,  brought  by  or 
against  the  assignee  in  reference  to  alleged  property  of  the  bankrupt,  or  to 
claims  alleged  to  be  due  from  or  to  him,'  and  the  jurisdiction  of  the  District, 
and  Circuit  Courts  over  suits  to  recover  assets  of  the  bankrupt  from  a  strangtr 
to  the  proceedings  in  bankruptcy,  brought  by  the  assignee  in  a  district  other 
than  that  in  which  the  decree  in  bankruptcy  had  been  made,  was  upheld,  not 
under  the  provisions  of  section  1  of  that  act,  giving  to  the  District  Court  orig- 
inal jurisdiction  of  proceedings  in  bankruptcy,  and  of  §  2,  giving  to  the  Circuit 
Court  supervisory  jurisdiction  over  such  proceedings,  but  wholly  under  the 
distinct  clause  of  §  2,  which  gave  to  those  two  courts  concurrent  jurisdiction  of 
all  suits,  at  law  or  in  equity,  brought  'by  the  assignee  in  bankruptcy  against 
any  person  claiming  an  adverse  interest,  or  by  such  person  against  such  as- 
signee, touching  any  property  or  rights  of  property  of  said  bankrupt  transferable 
to  or  vested  in  such  assignee.'  " 

In  re  Mueller,  Trustee,  14  A.  B.  R.  256,  135  Fed.  711  (C.  C  A.  Ky.):  "By 
'controversies  arising  in  bankruptcy  proceedings'  is  meant  those  independent  of 
plenary  suits  which  concern  the  bankrupt's  estate  and  arise  by  intervention  or 
otherwise  between  the  trustee  representing  the  bankrupt's  estate  and  claimants 
asserting  some  right  or  interest  adverse  to  the  bankrupt  or  his  general  cred- 
itors." 

Hinds  V.  Moore,  14  A.  B.  R.  1,  134  Fed.  221  (C.  C.  A.  Tenn.) :     "That  this  is 


§  2864       Ri;vii;w  IN  CIRCUIT  court  of  appeai^s.         1681 

not  an  appeal  in  one  of  the  special  cases  mentioned  in  §  25a  must  be  conceded. 
The  petition  of  the  trustee,  and  the  answer  of  the  defendant  thereto  raised  a 
distinct  and  separable  controversy  over  certain  property  adversely  held  and 
claimed  by  the  defendant  thereto.  It  may  therefore  be  well  treated  as  one  of 
those  'controversies  arising  in  bankruptcy  proceedings,'  over  which  this  court 
may  exercise  general  appellate  jurisdiction,  as  in  other  cases  under  §  24a." 

In  re  Friend,  13  A.  B.  R.  597,  134  Fed.  778  (C.  C.  A.  Ills.):  "That  §  23  estab- 
lishes a  clear  distinction  between  'proceedings  in  bankruptcy'  and  'controversies 
at  law  and  in  equity  arising  in  the  course  of  bankruptcy  proceedings;'  the 
former,  broadly -speaking,  covering  questions  between  the  alleged  bankrupt  and 
his  creditors,  as  such,  commencing  with  the  petition  for  adjudication,  ending 
with  the  discharge,  and  including  matters  of  administration  generally,  such  as 
appointments  of  receivers  and  trustees,  sales,  exemptions,  allowances,  and  the 
like,  to  be  disposed  of  summarily,  all  of  which  naturally  occur  in  the  settlement 
of  the  estate;  and  the  latter,  broadly  speaking,  involving  questions  between  the 
trustee,  representing  the  bankrupt  and  his  creditors,  on  the  one  side,  and  ad- 
verse claimants,  on  the  other,  concerning'  property  in  the  possession  of  the 
trustee  or  of  claimants,  to  be  litigated  in  appropriate  plenary  suits,  and  not 
affecting  directly  the  administrative  orders  and  judgments,  but  only  the  ques- 
tion of  the  extent  of  the  estate. 

"That  the  same  distinction  is  maintained  in  §  24a,  on  the  one  hand,  and  §§  24b 
and  25a  on  the  other. 

"That  §  24a,  gives,  if  the  grant  be  necessary  in  view  of  §  6  of  the  Act  of 
March  3,  1891,  c.  517,  26  Stat.  828  [U.  S.  Comp.  St.  1901,  p.  549],  this  court  ap- 
pellate jurisdiction  of  controversies  at  law  and  in  equity  between  trustees  and 
adverse  claimants,  to  be  invoked  by  writ  of  error  or  by  appeal,  as  may  be  ap- 
propriate." 

In  re  McMahon,  17  A.  B.  R.  537,  147  Fed.  685  (C.  C.  A.  Ohio):  "The  dis- 
tinction between  cases  which  are  'proceedings  in  bankruptcy'  under  §  24b,  and 
those  which  are  'controversies  arising  in  bankruptcy  proceedings'  and  appeal- 
able under  the  general  appellate  jurisdiction  of  the  court  as  confirmed  by  §  24a, 
is  not  always  clear  nor  easily  stated.  Between  Hewitt  v.  Berlin  Machine  Works 
and  First  National  Bank  of  Chicago  v.  Chicago  Title  and  Trust  Co.,  there  is  this 
distinction:  In  the  first  case  the  stranger  voluntarily  came  in  and  set  up  a  claim 
against  property  in  possession  of  the  bankrupt's  trustee.  Very  clearly  that  made 
one  of  those  independent  controversies  which  may  arise  in  a  bankruptcy  pro- 
ceeding or  in  any  other  where  the  res  is  in  custodia  legis,  and  was  appealable 
under  §  24a.  In  the  latter  case  the  same  kind  of  issue  arose,  but  it  arose  upon 
the  application  of  the  trustee  for  an  ofder  of  sale  and  as  incident  to  that  the 
determination  of  a  claim  against  the  property  held  by  one  not  a  party  to  the 
proceeding.  The  latter  is  plainly  held  to  -be  a  'proceeding  in  bankruptcy'  not 
appealable,  but  reviewable  in  matters  of  law  only  upon  an  appeal  to  the  super- 
visory powers  of  the  Court  of  Appeals,  under  §  24b.  The  distinction  we  recog- 
nize and  apply  in  this  case  by  holding  that  the  proper  and  only  mode  of 
correcting  error  in  the  case  was  through  the  supervisory  powers  of  this  court, 
and  that  the  petitioner  resorted  to  the  right  remedy,  though  he  had  no  wrong  to 
redress." 

Liddon  &  Bro.  v.  Smith,  14  A.  B.  R.  206,  135  Fed.  43  (C.  C  A,  Fla.)  :  "The 
words  'bankruptcy  proceedings'  are  used  in  §§  23,  24  and  25  *  *  *  in  contra- 
distinction to  controversies  arising  out  of  the  settlement  of  the  estates  of  bank- 
rupts. *  *  *  The  app,ellants  asserted  title  to  the  proceeds  of  the  mortgaged 
property   in   the   possession   of   the   trustee  by   the   petition   they   filed,   and   this 

2  Rem  B— 31 


1682  REMINGTON    ON   BANKRUPTCY.  §   2866 

raised  a  distinct  and  separable  suit,  and  the  controversy  thereon  may  be  treated 
as  one  of  those  controversies  arising  in  bankruptcy  proceedings  over  which 
the  Circuit  Court  of  Appeals  can,  under  §  24a,  exercise  appellate  jurisdiction  as 
in  other  cases.  *  *  *  The  motion  to  dismiss  the  appeal  must  therefore  be 
denied,  but  in  considering  the  appeal  we  are  limited  to  the  controversy  over  the 
right  of  the  appellants  to  the  proceeds  of  the  sale  of  the  mortgaged  property, 
which  controversy  embraces,  of  course,  the  correct  ascertainment  of  the  balance 
due  the  appellant  on  their  notes  and  mortgage,  and  the  amount  of  the  cost  and 
charges,  which  have  a  superior  rank  to  their  claim  against  the  proceeds  of  the 
mortgaged  property." 

In  re  Jacobs,  3  A.  B.  R.  671,  99  Fed.  539  (C.  C.  A.  Mo.):  "*  *  *  bank- 
ruptcy proceedings  strictly  so-called,  viz.,  those  which  are  initiated  by  the  peti- 
tion and  end  in  the  distribution  of  assets  among  creditors,  and  the  discharge  or 
refusal  of  the  discharge  of  the  bankrupt." 

Similar  rnlings  prevailed  under  the  Bankruptcy  Act  of  1867.'^ 

Bank  v.  Title  &  Trust  Co.,  14  A. 'B.  R.  102,  198  U.  S.  280:  "This  distinction 
existed  under  the  prior  bankruptcy  law,  and  the  then  decisions  in  respect  of  a 
proceeding  in  bankruptcy  and  an  independent  suit  are  applicable.  It  was  set- 
tled that  the  bankruptcy  court  was  without  jurisdiction  to  determine  adverse 
claims  to  property,  not  in  the  possession  of  the  assignee  in  bankruptcy,  by  sum- 
mary proceedings,  whether  absolute  title  or  only  a  lien  was  asserted."' 

§  2865.  Thus,  Adjudication  of  Bankruptcy,  or  Its  Refusal,  a  Ques- 
tion "In  Bankruptcy  Proceedings"  Proper. — Thus,  the  adjudication  of 
bankruptcy  of  a  debtor,  or  the  refusal  to  adjudge  him  bankrupt,  is  a  ques- 
tion arising  in  the  regular  course  of  bankruptcy  proceedings,  and  appeal 
from  the  adjudication  or  refusal  to  adjudicate,  must  be  taken  in  accord- 
ance with  the  provisions  of  the  act,  or  not  at  all. 

It  was  so  held  in  the  case  of  First  Nat'l  Bk.  v.  Klug,  above  quoted, 
where  the  district  court  had  refused  to  adjudge  bankrupt  a  debtor,  because 
he  was  a  farmer,  appeal  being  sought  directlv  to  the  supreme  court  under  § 
25  (d).' 

Also,  Lockman  v.  Lang,  11  A.  B.  R.  597,  128  Fed.  279  (C.  C.  A.  Colo.):  "A 
proceeding  in  bankruptcy  (here  the  adjudication  of  a  debtor  to  be  bankrupt)  is 
a  proceeding  in  equity  and  orders  and  decrees  therein  cannot  be  reviewed  by 
writs  of  error." 

§  2866.  Likewise,  Allowance  or  Refusal  of  Exemptions. — The  al- 
lowance or  refusal  of  exemptions  is  a  proceeding  in  bankruptcy.'^ 

6.  In  re  Jacobs,  3  A.  B.  R.  671,  99  Fed.  539  (C.  C.  A.  Mo.);  [1867]  Smith  v. 
Mason,  14  Wall.  419;  [1867]  Lathrop  Assignee  v.  Drake,  91  U.  S.  516,  quoted  in 
quotation  from  Bardes  v.  Hawarden  Bank,  4  A.  B.  R.  163,  178  U.  S.  524;  [1867] 
Marshall  :-.  Knox,  16  Wall.  419;  [1867]  In  re  Bonesteel.  7  Blatchf.  175;  [1867] 
Knight  V.  Cheney,  14  Fed.  Cases  760;  [1867]  In  re  Ballou,  4  Ben.  135;  [1867]  In 
re  Marter,  16  Fed.  Cases  857. 

7.  iMrst  Xat'l   I'.k.  of  Denver  7'.  Klug,  8  A.  B.  R.  12,  186  U.  S.  202. 

8.  Ingram  ?■.  Wilson,  11  A.   15.  R.  192,  125  Fed.  913  ( C.  C.  A.  Iowa). 

Widows'  and  Children's  Allowances  on  Death  of  Bankrupt  Pending  Proceed- 
ings.—  P.ut  it  is  (loul)ttul  whether  .'illovvances  to  widows  and  children,  under  §  8 
on  the  death  of  tin-  bankrujit  pending  the  proceedings  are  proceedings  in  bank- 
ruptcy.    In  re  McKenzie,  15  A.  B.  R.  680  (C.  C.  A.  Ark.). 


§    2869  REVIEW    IN    CIRCUIT    COURT    OE    APPEALS.  1683 

§  2867.  And  Allowance  or  Rejection  of  Claim  to  Share  in  Divi- 
dends, or  in  Marshaling  of  Firm  and  Individual  Estates. — The  al- 
lowance or  rejection  of  a  claim  for  a  share  in  the  dividends,  is  a  question 
arising  in  the  regular  course  of  bankruptcy  proceedings  proper.^ 

Thus,  where  the  question  arises  in  the  marshaling  of  firm  and  individual 
estates  in  partnership  bankruptcies  whether  a  firm  debt  shall  also  share  in 
the  individual  estate  of  one  partner  who  had  gone  surety  for  the  debt,  it 
is  a  question  concerning  the  "allowance  or  rejection"  of  a  "claim" — pecul- 
iarly one  of  the  steps  taken  in  the  regular  course  of  bankruptcy  proceed- 
ings proper,  and  is  not  to  be  considered  as  a  "controversy"  over  a  right  of 
priority.^*^  , 

§  2868.  And  Allowance  or  Disallowance  of  Costs  and  Expenses  of 
Administration — Such  as  Attorneys'  Fees. — And  orders  of  allowance 
or  disallowance  of  costs -and  expenses  of  administration — such  as  trustee's 
attorney's  fees — are  proceedings  in  bankruptcy. ^^ 

§  2869.  Even  Validity  and  Priority  of  Lien  May  Be,  if  Incident  to 
Allowance  or  Rejection  of  Creditor's  Claim  for  Share  in  Dividends. 

— And  thus,  even  the  validity,  extent  and  priority  of  a  hen  on  the  bank- 
rupt's property  rnay  be  a  question  arising  in  the  course  of  bankruptcy  pro- 
ceedings proper,  and  hence  determinable  upon  appeal,  if  the  lien  is  incident 
to  a  debt  owing  by  the  bankrupt  which  is  in  controversy. ^- 

Hutchinson  v.  Otis,  10  A.  B.  R.  1,35,  190  U.  S.  552:  "A  petition  was  filed 
*  *  *  asserting  a  lien  on  the  proceeds  of  a  seat  in  the  New  York  Stock  Ex- 
change, which  formerly  belonged  to  the  bankrupt.  *  *  *  The  argument 
chiefly  relied  upon  by  the  appellant  is  that  this  is  an  intervening  petition  to 
reach  a  fund  in  court,  and  is  not  a  proceeding  in  bankruptcy.  Under  the  cir- 
cumstances of  this  case  it  seems  to  us  that  the  petition  was  incident  to  the 
claim  (Cunningham  v.  German  Ins.  Bank,  4  Am.  B.  R.  192,  101  Fed.  977),  and 
was  a  bankruptcy  proceeding  under  §  2,  cl.  7,  within  the  meaning  of  §  25,  regu- 
lating appeals  in  bankruptcy  proceedings,  and  that  the  decree  upon   it  was  not 

9.  Holden-  v.  Stratton,  10  A.  B.  R.  789,  191  U.  S.  155.  [1867]  Compare,  Wis- 
wall  V.  Campbell,  93  U.  S.  347;   [1867]   compare,  Leggett  v.  Allen,  110  U.  S.  741. 

10.  In  re  Mueller,  Trustee,  14  A.  B.  R.  259,  135  Fed.  711  (C.  C.  A.  Ky.). 

11.  See  post,  §  2933;  Davidson  &  Co.  v.  Friedman,  15  A.  B.  R.  490,  140  Fed. 
853  (C.  C.  A.  Ohio). 

Assignees'  Lien  Not  "Bankruptcy  Proceedings,"  but  "Controversy." — The  al- 
lowance of  compensation  and  expenses  to  an  assignee,  upon  the  turning  over 
of  the  assigned  property  to  the  bankruptcy  trustee,  is  not  a  "proceedings  in 
bankruptcy"  but  rather  a  "controversy  arising  in  bankruptcy."  In  re  Levitt,  11 
A.  B.  R.  411  (D.  C.  Wis.).  But  compare  practice  in  Randolph  i'.  Scruggs,  10 
A.  B.  R.  1,  190  U.  S.  533,  which  came  up  on  appeal  as  a  "claim"  in  "excess  of 
$500." 

12.  Liddon  &  Bro.  v.  Smith,  14  A.  B.  R.  206,  135  Fed.  43  (C.  C.  A.  Fla.), 
quoted  at  §  2864. 

Apparent  instance.  In  re  Antigo  Screen  Door  Co.,  10  A.  B.  R.  359,  123  Fed. 
249  (C.  C.  A.  Wis.):  Wherein  the  facts  would  permit  of  the  holding  therein 
made,  but  the  reasoning  of  the  court  is  out  of  harmony  with  the  great  weight  of 
authority.     See  analogously,  post,  §  2901. 


1684  REMINGTON    ON   BANKRUPTCY.  ^    2871 

'a  judgment  allowing  or  rejecting  a  debt  or  claim  of  five  hundred  dollars  or 
over,'  within  §  25a,  3,  and  was  not  an  independent  ground  of  appeal." 

Cunningham  v.  Bank,  4  A.  B.  R.  192,  101  Fed.  977  (C.  C.  A.  Ky.):  "This 
motion  is  based  upon  a  suggestion  that  an  appeal  will  not  lie  to  this  court  from 
a  judgment  denying  or  allowing  a  lien  or  preference  out  of  the  bankrupt's 
estate,  but  that  such  a  judgment  can  only  be  questioned  by  petition  invoking 
the  power  conferred  upon  the  court  by  the  24th  section  of  the  Bankruptcy  Act 
of  1898.  The  appellate  jurisdiction  of  this  court  in  bankruptcy  proceedings  is 
defined  by  the  25th  section  of  the  Bankruptcy  Act.    *     *     * 

"Learned  counsel  say  that  a  review  of  a  judgment  allowing  or  disallowing  the 
lien  of  a  debt  or  claim  can  only  be  had  under  the  superintending  and  reviewing 
powers  of  this  court  granted  by  the  24th  section,  and  that  an  appeal  will  not 
lie  from  such  a  judgment.  If  thi^  be  true,  such  a  judgment  can  be  reviewed  only 
upon  matters  of  law,  and  when  the  lien  allowed  or  denied  depends  upon  a  con- 
troverted question  of  fact  and  law,  no  review  of  the  judgment  is  possible,  inas- 
much as  the  remedy  afforded  by  the  24th  section  is  limited  to  matters  of  law. 

"To  this  construction  of  the  act  we  cannot  assent. 

"The  appeal  from  a  judgment  allowing  or  rejecting  a  debt  or  claim  includes 
as  an  incident  any  question  as  to  the  rank  or  lien  of  such  debt  or  claim  in  the 
distribution  of  the  bankrupt's  estate.  If  the  debt  or  claim  including  its  lien  or 
preference  depend  upon  controverted  questions  of  fact  and  law,  the  right  of 
appeal  is  granted  by  the  25th  section,  above  set  out." 

§  2870.  But  if  Sole  Controversy  Is  About  Lien  or  Priority,  None 
About  Debt,  Not  a  Question  "in  Bankruptcy  Proceedings"  Proper. 

— Bttt  if  the  sole  controversy  is  abotit  the  lien  and  not  about  the  debt,  it  is 
not  a  proceedings  in  bankruptcy  proper,  but  is  a  controversy  arising  out  of 
a  bankruptcy  proceedings.^^ 

§  2871.  And  Claim  Controverted  Must  Be  Creditor's  Claim,  Else 

Not. — And  the  validity,  extent  or  priority  of  a  lien  on  the  bankrupt's  prop- 
erty, where  the  lienholder  is  not  also  a  creditor  of  the  bankrupt,  are  not 
questions  arising  in  bankruptcy  proceedings  proper,  but  are  "controversies" 
arising  out  of  bankruptcy  proceedings.^^ 

13.  Hutchinson  v.  Otis,  10  A.  B.  R.  138,  190  U.  S.  552   (affirming  S.  C,  10  A. 

B.  R.  275,  123  Fed.  14),  quoted  ante,  §  2869,  and  post,  §  2902. 

In  re  Rouse,  Hazard  &  Co.,  1  A.  B.  R.  239,  91  Fed.  96  (C.  C.  A.. 111.),  quoted 
post,  §  2902.  But  compare  apparently  contra.  Bank  z'.  Title  and  Trust  Co.,  14 
A.  B.  R.  102,  198  U.  S.  280,  quoted  ante,  §  2864. 

But  compare,  also  apparently  contra,  O'Dell  v.   Boj^den,  17  A.   B.  R.  759   (C. 

C.  A.  Ohio):  "In  the  case  at  bar  the  proceeding  was  instituted  by  the  trustee's 
petition  to  bring  in  O'Dell  to  adjudicate  his  claim  or  lien  against  property  al- 
leged to  be  in  custodia  legis.  That  was  the  ground  of  the  jurisdiction  in  the 
case  of  First  Nat'l  Bank  of  Chicago  z'.  Chicago  Title  and  Trust  Co.,  and  In  re 
McMahon.  In  both  cases  the  facts  made  a  'proceeding  in  bankruptcy'  review- 
able only  in  matter  of  law  under  24b.  These  cases  govern  this.  So.  too,  the 
case  is  distinguishable  in  this  respect  from  Loeser,  Trustee,  v.  Savings  Deposit 
Bank  &  Trust  Co.,  17  A.  B.  R.  628,  decided  with  the  present  case.  In  the  case 
last  mentioned,  the  res  was  voluntarily  surrendered  to  the  bankrupt  trustee  by 
a  mortgagee  in  possession  who  came  in  and  prosecuted  his  claim  to  a  lien  under 
a  mortgage  covering  the  property  thus  brought  in  by  him.  The  appeal  must  be 
dismissed  as  no  appeal  will  lie  under  §  7  of  the  Court  of  Appeals  Act  of  1891 
from  an  injunction  awarded  in  course  of  such  a  proceeding." 

See  post,  §  2902  and  §  2936.     Compare  instances  under  §  2875,  post. 

14.  See  analogously,  post,  §  2900. 


§    2877  REVIEW    IN    CIRCUIT    COURT  .OP    APPEALS.  1685 

Burleigh  v.  Foreman,  11  A.  B.  R.  76,  125  Fed.  217  (C.  C.  A.  Mass.):  "When, 
however,  the  equity  courts  assume  a  jurisdiction  of  that  character,  it  is  a  funda- 
mental rule,  so  far  as  the  Federal  tribunals  are  concerned,  that,  whenever  any- 
party  intervening  raises  a  distinct  and  separable  issue  or  controversy  involving 
substantial  pecuniary  rights,  an  appeal  lies.  Pursuing  that  analogy,  an  appeal 
should  be  allowed  in  the  present  case.  A  construction  of  the  Bankruptcy  Act 
of  1898  which  would  lead  to  a  different  conclusion  would  be  monstrous.  It 
would  give  a  single  judge  absolute  power  over  questions  of  fact  concerning 
estates  in  bankruptcy,  no  matter  how  immense,  while  no  such  power  exists  in 
any  other  branch  of  the  Federal  judicial  jurisdiction.  Such  a  result  should  not 
be  accepted  unless  the  statute  furnishes  some  express  provision  in  that  direc- 
tion, clear  and  positive.    None  such  exists. 

"The  relief  given  by  the  Bankruptcy  Act  of  1898  to  litigants  dissatisfied  with 
the  conclusions  of  the  District  Court  are  distinctly  threefold:  First,  there  is  an 
appeal  provided  in  §  25,  with  reference  to  the  specific  matters  named  therein. 
This  was  needed  if  an  appeal  was  to  be  allowed,  as  the  matters  to  which  it 
relates  could  arise  in  bankruptcy  only.  Second,  §  24b  gives  the  several  Circuit 
Courts  of  Appeals  jurisdiction  'to  superintend  and  revise  in  matter  of  law  the 
proceedings  of  the  several  inferior  courts  of  bankruptcy  within  their  jurisdic- 
tion.' Third,  §  24a  invests  them  'with  appellate  jurisdiction  of  controversies 
arising  in  bankruptcy  proceedings  from  the  courts  of  bankruptcy  from  which 
they  have  appellate  jurisdiction  in  other  cases.'     *     *     * 

"The  subject  matter  of  this  appeal  is  not  in  any  way  peculiar  to  bankruptcy. 
Questions  of  marshaling  assets  between  a  copartnership  and  individual  partners 
arise  at  common  law,  but  oftener  at  equity.  In  the  present  case  the  controversy 
is  governed  entirely  by  the  principles  of  the  common  law  and  the  rules  of 
equity,  and  it  is,  therefore,  for  the  reasons  we  have  given,  of  an  essentially  dif- 
ferent class  from  the  matters  as  to  which  §  25a  allows  appeals.  It  is  involved  in 
the  present  'bankruptcy  proceedings'  simply  because  it  -arose  in  them,  within  the 
meaning  of  the  citation  already  made  from  §  24a  of  the  statute  of  1898.  The 
question  involved  is  not,  in  any  proper  sense  of  the  word,  a  mere  proceeding  in 
bankruptcy;  and  there  is  no  reason,  either  in  the  theory  of  the  law  or  in  the 
express  language  of  the  statute,  why  relief  should  be  limited  to  that  kind  which 
is  afiforded  only  with  reference  to  such  proceedings." 

§  2872.  Seizures  on  Warrants  to  Marshal,  Proceedings  in  Bank- 
ruptcy.— And  questions  arising  out  of  the  seizure  of  property  by  a  re- 
ceiver or  marshal,  being  under  the  special  provisions  of  the  Bankruptcy 
Act,-  are  proceedings  in  bankruptcy  proper,  and  not  mere  "controversies. "^^ 

§  2873.  But  Trustee's  Petitions  for  Summary  Surrender  of  Prop- 
erty,' Not  Bankruptcy  Proceedings  Proper. — And  a  petition  by  -the 
trustee  for  an  order  upon  a  third  party,  or  upon  the  bankrupt,  to  surrender 
property  in  his  possession  belonging  to  the  estate,  is  a  "controversy  aris- 
ing" out  of  a  bankruptcy  proceedings,  and  is  not  a  part  of  the  bankruptcy 
proceedings  proper  ;^^  even  where  the  property  has  previously  been  vol- 
untarily surrendered  by  the  bankruptcy  receiver  through  the  third  party's 

15.  In  re  Moody,  12  A.  B.  R.  718,  131  Fed.  525  (D.  C.  Iowa). 

16.  See  post,  §  2938;  im^pliedly,  Schweer  v.  Brown,  12  A.  B.  R.  673,  195  U.  S. 
171;  Hinds  v.  Moore,  14  A.  B.  R.  1,  134  Fed.  221  (C.  C.  A.  Tenn.). 


1686  REMINGTON    ON    BANKRUPTCY.  §   2874 

persuasion  ;i"  although  it  has  been  held,  that  a  summary  order  on  a  non- 
bankrupt  member  of  a  bankrupt  firm  to  surrender  a  policy  of  insurance,  is 
a  step  in  bankruptcy  proceedings  proper. ^^ 

§  2874.  Neither  Are  Trustee's  Plenary  Suits  in  U.  S.  District 
Court  to  Recover  Property  Fraudulently  or  Preferentially  Trans- 
ferred.— Likewise,  a  suit  in  equity  brought  by  a  trustee  in  bankruptcy  in 
the  U.  S.  District  Court,  under  §  67  (e),  §  70  (e)  or  §  60  (b)  as  amended 
in  1903,  (or  "by  consent")  to  recover  property  adversely  held,  but  al- 
leged by  the  trustee  to  belong  to  the  bankrupt's  estate,  and  to  have  been 
fraudulently  or  preferentially  transferred  or  otherwise  recoverable  by  the 
trustee,  is  an  independent  suit,  incapable  of  being  characterized  as  a  pro- 
ceeding in  bankruptcy  within  the  meaning  of  §  24  (b),  but  is  a  "con- 
troversy arising"  in  a  bankruptcy  proceeding.^^ 

In  re  Jacob^,  3  A.  B.  R.  675,  99  Fed.  539  (C.  C.  A.  Mo.):  "In  view  of  these 
adjudications  upon  the  Bankrupt  Act  of  1867,  we  feel  constrained' to  hold  that 
it  is  only  some  action  taken  or  order  made  in  the  bankruptcy  proceeding  itself 
which  can  be  reviewed  by  an  original  petition  addressed  to  this  court,  under 
subdivision  'b'  of  §  24  of  the  Bankrupt  Act,  and  that  the  power  thereby  con- 
ferred 'to  superintend  and  revise'  the  action  of  the  District  Court  does  not  ex- 
tend to  suits  brought  in  that  court  by  the  trustee  in  bankruptcy  against  third 
parties,  to  collect  the  assets  of  the  estate,  or  to  suits  brought  by  third  parties 
against  the  trustee,  whether  such  suits  are  rightfully  or  wrongfully  brought  in 
that  court,  as  to  which  point  we  express  no  opinion  at  this  time.  Such  suits  as 
those  last  referred  to,  whether  at  law  or  in  equity,  are  not  proceedings  in  bank- 
ruptcy, or  'controversies  arising  in  bankruptcy  proceedings,'  within  the  meaning 
and  intent  of  the  law  authorizing  petitions  for  review,  but  they  are  suits  which 
must  be  reviewed  in  the  ordinary  way,  by  appeal  or  writ  of  error,  when  they 
have  reached  a  final  determination  in  the  court  of  first  instance.  We  can  dis- 
cover nothing  in  the  language  or  policy  of  the  recent  Bankrupt  Act  which  would 
seem  to  require  the  various  Circuit  Courts  of  Appeals  to  review  every  inter- 
locutory order  made  or  proceeding  taken,  in  an  ordinary  action  at  law  or  in 
equity,  in  a  suit  between  a  trustee  in  bankruptcy  and  a  third  party,  which  hap- 
pens to  be  brought  in  the  District  Court,  simply  because  the  trustee's  title  to  the 

17.  Hinds  v.  Moore,  14  A.  B.  R.  1,  134  Fed.  221  (C.  C.  A.  Tenn.). 

18.  In  re  Mertens,  15  A.  B.  R.  701,  142  Fed.  445  (C.  C.  A.  N.  Y.) ;  Fisher  v. 
Cushman,  4  A.  B.  R.  646,  103  Fed.  860  (C.  C.  A.  Mass.). 

19.  See  post,  §  2927.  Doroshow  v.  Ott,  14  A.  B.  R.  34,  134  Fed.  740  (C.  C.  A. 
N.  J.);  Delta  Nat'l  Bk.  ?/.  Easterbrook,  13  A.  B.  R.  338,  133  Fed.  521  {C.  C.  A. 
TexO,  which  was  a  suit  at  law  to  recover  property  preferentially  transferred. 
McCarty  v.  Coffin,  18  A.  B.  R.  148  (C.  C.  A.  Tex.). 

Dolle  V.  Cassell,  14  A.  B.  R.  52,  135  Fed.  52  (reversed,  on  other  grounds,  sub 
nom.  York  Mfg.  Co.  v.  Cassell),  wherein  a  vendor  under  a^  conditional  sale  of 
chattels  sought  to  recover  the  articles  under  an  unrecorded  agreement  for  the 
retention  of  title  until  payment  of  the  purchase  price. 

In  re  First  Nat'l  Bk.  of  Canton,  14  A.  B.  R.  180,  135  Fed.  62  (C.  C.  A.  Ohio), 
in  which  a  creditor  of  the  bankrupt  sought  to  enforce  a  mortgage  lien  upon  a 
stock  of  merchandise  belonging  to  the  bankrupt,  which  stock  had  come  to  the 
possession  of  the  bankrupt's  trustee. 

Compare,  StelJing  v.  Jones  Lumber  Co.,  8  A.  B.  R.  521,  116  Fed.  261  (C.  C. 
A.  Wis.).  Also  compare,  Walter  Scott  v.  Wilson,  8  A.  B.  R.  349,  115  Fed  284 
(C.  C.  A.  Ills.). 


§   2875  REVIEW    IN    CIRCUIT    COURT   OP    APPEALS.  1687 

property  claimed,  or  his  liability  to  be  sued,  is  founded  on  the  Bankrupt  Act. 
Nor  do  we  believe  that  such  a  construction  of  the  act  was  within  the  contempla- 
tion of  Congress." 

McNulty  V.  Feingold,  12  A.  B.  R.  339,  129  Fed.  1001  (D.  C.  Pa.):  "The  par- 
ties here  have  been  adjudged  bankrupts,  a  trustee  appointed,  and  suit  is  insti- 
tuted by  him  against  third  parties  for  the  value  of  property  fraudulently 
conveyed  to  them  by  the  bankrupt.  It  is  therefore  a  controversy  at  law  or  in 
equity,  within  the  provision  of  §  23,  and  not  a  proceeding  in  bankruptcy,  wherein 
summary  proceeding  can  be  had." 

Questions  arising  out  of  the  seizure  by  a  receiver  or  marshal  of 
property,  under  the  special  provisions  of  the  bankruptcy  act,  are  pro- 
ceedings in  bankruptcy  and  not  mere  "controversies. "^o 

§  2875.  Nor  Are  Intervening-  Petitions  Claiming  Property  in  Cus- 
tody of  Bankruptcy  Court  or  Liens  Thereon. — Intervening  petitions  of 
third  parties  claiming  property  or  interests  in  property  in  the  custody 
of  the  bankruptcy  court  are  not  "bankruptcy  proceedings"  proper,  but  are 
"controversies  arising  in  bankruptcy."-^ 

Hewitt  V.  Berlin  Machine  Co.,  11  A.  B.  R.  711,  194  U.  S.  296  (discussed  in  In 
re  McMahon,  17  A.  B.  R.  536) :  "And  as  the  Berlin  Machine  Works  asserted 
title  to  the  property  in  the  possession  of  the  trustee  by  an  intervention  raising- 
a  distinct  and  separable  issue,  the  controversy  may  be  treated  as  one  of  those 
'controversies  arising  in  bankruptcy  proceedings'  over  which  the  Circuit  Court 
of  Appeals  could,  under  §  24a,  exercise  appellate  jurisdiction  as  in  other  cases. 
Section  25a  relates  to  appeals  from  judgments  in  certain  enumerated  steps  in* 
bankruptcy  proceedings,  in  respect  of  which  special  provision  therefor  was 
required  (Holden  v.  Stratton,  191  U.  S.  115,  10  Am.  B.  R.  786),  while  §  24a 
relates  to  controversies  arising  in  bankruptcy  proceedings  in  the  exercise  by  the 
bankruptcy  courts  of  the  jurisdiction  vested  in  them  at  law  and  in  equity  by  §  2, 
to  settle  the  estates  of  bankrupts,  and  to  determine  controversies  in  relation- 
thereto.  Hutchinson  z'.  Otis,  190  U.  S.  552,  10  Am.  B.  R.  135;  Burleigh  v.  Fore- 
man, 125  Fed.  217. 

"The  appeal  to  this  court  then  followed,  under  §  6  of  the  Act  of  March  3,. 
1897." 

Dodge  V.  Norlin,  13  A.  B.  R.  176,  133  Fed.  363  (C.  C.  A.  Colo.):  "The  claim 
of  the  appellant  *  *  *  ^^^  brought  to  the  attention  of  the  court  of  bank- 
ruptcy by  a  verified  statement  of  the  mortgagee  which  set  forth  his  mortgage, 
the  claim  it  secured  and  the  specific  property  upon  which  he  claimed  a  lien  under 

20.  In  re  Moody,  12  A.  B.  R.  718,  131  Fed.  525  (D.  C.  Iowa).  See  ante,  § 
2872. 

21.  Liddon  &  Bro.  v.  Smith,  14  A.  B.  R.  204  (C.  C.  A.  Fla.),  quoted  ante,  ^ 
2864;  In  re  Holmes,  15  A.  B.  R.  689  (C.  C.  A.  Colo.);  Hutchinson  r.  LeRoy,  8- 
A  "B  R.  20  (C.  C.  A.  Mass.):  Intervenine  petition  following  trust  funds.  Ap- 
parently, Smith  V.  Evans,  17  A.  B.  R.  433  (C.  C.  A.  Ills.). 

But  compare.  In  re  Antigo  Screen  Door  Co.,  10  A.  B.  R.  359,  123  Fed.  249  (C. 
C.  A.  Wis.):  This  case  is  defensible  only  on  the  theory  that  the  validity  of  the 
lien  therein  adjudicated  was  an  incident  to  the  determination  of  the  validity  of 
a  debt  and  hence  was  appealable.  The  opinion,  however,  does  not  rest  the 
case  on  this  basis.  ^    ^  ^,  •   n 

Also,  apparently  contra,  O'Dell  v.  Boyden,  17  A.  B.  R.  759  (C.  C.  A.  Ohio), 
quoted  ante,  §  2870,  note. 


1688  REMINGTON    ON    BANKRUPTCY.  §    2876 

it.  The  issue  it  presented  was  whether  or  not  the  mortgage,  which  was  valid 
between  the  parties,  was  voidable  by  the  trustee.  That  issue  was  separate  and 
distinct  from  the  general  subject  matter  of  the  proceedings  in  bankruptcy,  and 
it  presented  a  controversy  of  which  the  Circuit  Court  of  Appeals  would  have 
had  jurisdiction  if  it  had  arisen  in  any  other  case  in  a  Federal  court.  The 
conclusion  is  -that  the  Circuit  Court  of  Appeals  have  jurisdiction  to  review  the 
final  decisions  by  the  courts  of  bankruptcy  of  controversies  arising  between 
the  trustees  in  bankruptcy  and  third  parties  over  the  title  to,  or  over  the  liens 
upon  the  alleged  property  of  the  bankrupt  or  its  proceeds  under  §  24a;  that 
this  jurisdiction  is  not  excluded  or  revoked  by  the  grant  of  appellate  jurisdic- 
tion over  the  three  classes  of  cases  specified  in  §  25  (a),  but  the  effect  of  that 
section  is  to  limit  the  time  within  which  appeals  may  be  taken  in  the  cases  there 
treated,  and  to  increase  to  some  extent  the  appellate  jurisdiction  of  the  Courts 
of  Appeals;  that  the  general  appellate  jurisdiction  vested  by  §  24a  is  not  impaired 
or  afifected  by  the  grant  of  the  power  of  revision  and  supervision  in  matter  of 
law  contained  in  §  24b;  and  that  the  motion  to  dismiss  this  appeal  must  be  de- 
nied." 

And  compare,  apparently,  but  not  really,  contra,  In  re  Drayton,  13  A.  B.  R. 
602  (D.  C.  Wis.) :  "*  *  *  settlement  of  title  to  or  claims  against  specific  prop- 
erty in  the  hands  of  the  trustee,  as  purported  assets  of  the  estate,  is  one  of  the 
'proceedings  in  bankruptcy'  mentioned  in  §  23  of  the  Act  as  there  distinguished 
from  separate  'controversies  at  law  and  in  equity'  between  'trustees,  as  such, 
and  adverse  claimants,'  concerning  the  property  acquired  or  claimed  by  the 
trustees.  The  property  or  proceeds  in  question  in  the  present  case  is  in  the 
hands  of  the  trustee,  in  custodia  legis,  and  the  Bankruptcy  Court  is  neces- 
sarily vested  with  both  power  and  duty  to  determine  all  rights  therein,  upon 
proper  notice,  as  'controversies  in  relation  thereto,'  vide,  §  2,  subd.  7,  of  the 
'Act;  no  inconsistent  provision  appearing  elsewhere." 

Likewise  independent  plenary  suits  in  the  nature  of  equitable  replevin 
instituted  by  adverse  claimants  to  recover  property  from  the  custody  of 
the  bankruptcy  court  are  not  "proceedings  in  bankruptcy"  proper  but  are 
"controversies  arising  in  bankruptcy."-^ 

Also,  independent  plenary  suits  brought  in  the  U.  S.  District  Court  by 
adverse  claimants  in  possession  to  enjoin  trustees  or  receivers,  are  "con- 
troversies" and  not  "bankruptcy  proceedings"  proper.^^ 

§  2876.  But  Orders  of  Sale  and  Controversies  Incident  Thereto, 
Proceedings  in  Bankruptcy  Proper  and  Not  "Controversies." — But 

orders  of  sale  and  controversies  incident  thereto  are  proceedings  in  bank- 
ruptcy proper,  and  not  "controversies  arising  in  bankruptcy  proceedings;" 
and  are  therefore  not  appealable  (because  not  within  §  25a),  but  re- 
viewable only  under  24  (b).^^ 

« 

22.  Walter  Scott  z'.  Wilson,  8  A.  B.  R.  349,  115  Fed.  284  (C.  C    A.  Ills.) 

23.  Warehousing  Co.  v.  Hand,  16  A.  B.  R.  56  (C.  C  A  Wis  )  See  oost  §S 
2926,  2937  and  2943.  '  v-  f       ,   sa 

24.  Bk.  V.  Chicago  Title  &  Trust  Co..  14  A.  B.  R.  102,  198  U  S  280-  O'Dell 
V.  Boyden,  17  A.  B.  R.  759  (C.  C.  A.  Ohio),  quoted  ante,  §  2870,  note  '  Obiter 
In  re  McMahon,  17  A.  B.  R.  537,  147  Fed.  685  (C.  C.  A.  Ohio);  obiter.  Mason 
V.  Wolkowich,  17  A.  B.  R.  717,  ]50  Fed.  699  (C.  C   A    Mass) 


§   2880  REVIEW    IN    CIRCUIT    COURT    OF    APPEALS,  1689 

§  2877.  Unless  Real  Controversy  Not  about  Order  of  Sale  nor 
Claim  but  about  Lien  or  Title  Itself. — But  here  again,  if  the  real  con- 
troversy is  not  about  the  order  of  sale  or  about  the  debt  but  rather  about 
other  matters  connected  therewith,  such  as  the  extent  or  validity  of  a 
lien  or  the  right  of  property  itself,  it  is  a  "controversy"  and  not  a  bank- 
ruptcy proceeding  proper,  and  is  appealable  under  §  24  (a),^'^  under  the 
doctrine  of  §  2870,  ante. 

§  2878.  Thus,  Trustee's  Petition  to  Marshal  Liens  on  Property 
in  His  Custody  and  to  Enjoin  Interference  Not  "Proceedings  in 
Bankruptcy,"  but  "Controversy." — Thus,  a  petition  by  the  trustee  to 
marshal  liens  upon  property  in  his  custody  which  is  about  to  be  sold,  as 
well  as  to  enjoin  outside  interference  therewith,  is  not  a  "proceedings  in 
bankruptcy,"  but  is  a  "controversy"  arising  in  bankruptcy.^*^ 

§  2879.  Marshaling  of  Firm  and  Individual  Assets  and  Debts  in 
Partnership  Bankruptcies. — It  appears  to  be  the  holding  that  the  mar- 
shaling of  firm  and  individual  assets  in  partnership  bankruptcies  is  a  "con- 
troversy" and  not  a  step  in  bankruptcy  proceedings  proper,-"  while  the 
right  of  a  creditor  to  share  in  the  firm  assets  or  in  those  of  a  partner,  is 
a  question  in  "bankruptcy  proceedings,"  being  in  fact  concerning  the 
"allowance"  or  "rejection"  of  a  "claim. "^s  Thus,  if  the  controversy  is 
whether  a  claim  is  allowable  against  the  firm  alone  or  also  against  a 
partner's  individual  estate,  where  the  partner  had  gone  surety  for  the 
iirm,  the  real  controversy  is  not  concerning  priority,  etc.,  but  is  concern- 
ing the  "allowance  or  rejection"  of  a  claim,  peculiarly  a  step  in  bank- 
ruptcy proceedings  proper.-^ 

Similarly,  a  summary  order  on  a  nonbankrupt  member  of  a  bankrupt 
partnership  to  surrender  a  policy  of  insurance,  has  been  held  to  be  a  step 
in  bankruptcy  proceedings  proper. ^^ 

§  2880.  When  to  Appeal,  When  to  Petition  for  Revision. — Resort 
to  appeal  or  to  petition  for  review  on  error  may  be  optional  in  a  proper 
case.  Appeal  alone  will  permit  of  the  review  of  both  the  facts  and  the 
law,  but  a  petition  for  review  or  writ  of  error  brings  up  only  errors  of  law, 
as  shown  by  the  record.  If  it  is  desired  to  review  the  facts,  or  if  the  record 
shows  the  facts  to  be  undecided,  appeal  alone  will  lie ;  on  the  other  hand, 
if  the  record  shows  the  facts  to  be  undisputed,  appeal  will  not  lie,  but  only 

25.  Mason  v.  Wolkowich,  17  A.  B.  R.  717,  150  Fed.  699   (C.  C.  A.  Mass.). 

26.  Compare,  apparently  to  this  effect  (though  actual  custody  denied),  Stell- 
ing  V.  Jones  Lumber  Co.,  8  A.  B.  R.  5;21,  116  Fed.  261  (C.  C.  A.  Wis.). 

27.  Burleigh  v.  Foreman,  11  A.  B.  R.  74,  125  Fed.  317  (C.  C.  A.  Mass.). 

28.  In  re  Mueller,  Tr.,  14  A.  B.  R.  256,  135  Fed.  711  (C.  C.  A.  Ky.). 

29.  In  re  Mueller,  Tr.,  14  A.  B.  R.  256,  135  Fed.  711  (C.  C.  A.  Ky.). 

30.  In  re  Mertens,  15  A.  B.  R.  701,  142  Fed.  445  (C.  C.  A.  N.  Y.);  Fisher  v. 
Cushman,  4  A.  B.  R.  646,  103  Fed.  860  (C.  C.  A.  Mass.). 


1690  REMINGTON    ON    BANKRUPTCY.  §    2881 

petition  for  review  will  be  proper.  If  no  review  of  the  facts  is  desired, 
?.nd  the  record  shows  the  facts  have  been  decided,  writ  of  error  or  petition 
for  review  is  proper. 

§  2881.  Distinction  between  Writ  of  Error  and  Appeal,  Pre- 
served.— The  distinction  between  the  writ  of  error,  which  brings  up 
matter  of  law  only,  and  appeal,  which,  unless  expressly  restricted,  brings 
up  both  law  and  fact,  is  preserved  in  bankruptcy.^^ 

Elliott  V.  Toeppner,  9  A.  B.  R.  50,  187  U.  S.  327:  "The  distinction  between  a 
writ  of  error  which  brings  up  matter  of  law  only,  and  an  appeal,  which,  unless 
expressly  restricted,  brings  up  both  law  and  fact,  has  always  been  observed 
by  this  court,  and  been  recognized  by  the  legislation  of  Congress  from  the 
foundation  of  the  government." 

Duncan  v.  Landis,  5  A.  B.  R.  649,  106  Fed.  839  (C.  C.  A.  Pa.):  '"Thcvlanguage 
of  the  section  conferring  upon  the  Circuit  Courts  of  Appeal  'appellate  jurisdic- 
tion of  controversies  arising  in  bankruptcy  proceedings  from  the  courts  of  bank- 
ruptcy over  which  they  have  appellate  jurisdiction  in  other  cases,'  is  broad 
and  applicable  to  all  'controversies  arising  in  bankruptcy  proceedings,'  etc. 
If  there  could  have  been  anj^  doubt  in  construing  §  6  of  the  Judiciary  Act  of 
1891,  above  quoted,  that  'Final  decisions  in  the  District  Court'  included  final 
decisions  in  such  a  court  when  acting  as  a  court  of  bankruptc}\  it  has  been  re- 
moved by  §  24  of  the  Bankrupt  Act,  as  above  quoted.  For  this  purpose,  among 
others,  this  provision  seems  to  have  been  inserted.  At  all  events,  there  can  be 
no  doubt  now,  in  view  of  this  provision,  that  inasmuch  as  the  Circuit  Courts 
of  Appeal  have  appellate  jurisdiction  over  District  Courts  in  other  cases,  so, 
also,  they  have  the  same  jurisdiction  over  those  courts  when  acting  as  courts 
of  bankruptcy.  That  a  jury  trial  has  been  ordered  under  the  provisions  of  §  19 
of  the  Bankrupt  Act  does  not  remove  the  controversy  from  this  appellate 
jurisdiction.  Section  24  does  not  state,  nor  was  it  necessary  to  state,  how  the 
appellate  jurisdiction  provided  for  should  be  invoked.  The  practic-e  of  the 
courts,  but  especially  the  act  of  Congress  establishing  the  Court  of  Appeals, 
already  referred  to,  had  designated  'writs  of  error'  and  'appeals,'  as  those  terms 
are  used  and  understood  in  our  jurisprudence,  as  the  appropriate  methods  for 
invoking  the  appellate  jurisdiction.  The  form,  scope,  and  peculiar  functions 
of  these  two  several  methods  of  exercising  appellate  jurisdiction  are  well  under- 

31.  Bank  v.  Chicago  Title  &  Trust  Co.,  14  A.  B.  R.  102,  198  U.  S.  280  (re- 
versing 11  A.  B.  R.  79);  Holden  v.  Stratton,  10  A.  B.  R.  786,  191  U.  S.  115; 
Mueller  v.  Nugent,  184  U.  S.  1,  7  A.  B.  R.  224;  In  re  Union  Trust  Co.  (In  re 
New  Eng.  Piano  Co.),  9  A.  B.  R.  767,  122  Fed.  937  (C.  C.  A.  Mass.);  Cunning- 
ham V.  Bank,  4  A.  B.  R.  192,  103  Fed.  932  (C.  C.  A.  Ky.);  In  re  Mueller,  Tr.,  14 
A.  B.  R.  256,  135  Fed.  711  (C.  C.  A.  Ky.);  Bardes  v.  Hawarden  Bank.  4  A.  B. 
R.  163,  178  U.  S.  524;  inferentially.  In  re  Rosser,  4  A.  B.  R.  153,  101  Fed.  562  (C. 
C.  A.  Mo.);  Printing  Co.  v.  Brew.  Co.,  4  A.  B.  R.  183,  101  Fed.  699  (C.  C.  A. 
Ky.);  In  re  Abraham,  2  A.  B.  R.  266,  96  Fed.  767  (D.  C.  Ala.,  reversed,  on  other 
grounds,  sub  nom.  Bryan  v.  Bernheimer)  ;  In  re  Purvine,  2  A.  B.  R.  787.  96  Fed. 
!^~  i^-  ^J^-  Tex.);  impliedly.  Dodge  v.  Norlin,  13  A.  B.  R.  181,-133  Fed.  363 
(C.  C.  A.  Colo.). 

Compare  note  to  In.  re  Good,  3  A.  B.  R.  605^  99  Fed.  389  (C.  C.  A.  Mo.).     But 
compare,  as  to  case  where  no  right  to  jury  exists  on  question  of  adjudication  of 
bankruptcy.  Simonson  v.  Smsheimer,  3  A.  B.  R.  824,  100  Fed    426  (C    C    A.    Ky  ) 
Compare,  also,  In  re  Jacobs,  3  A.  B.  R.  675,  99  Fed.  539  (C    C    A    Mo  ) 


8    2882  REVIEW    IN    CIRCUIT    COURT    OF    APPEALS.  1691 

stood,  and  their  peculiar  and  separate  functions  clearly  established  by  the 
decisions  and  practice  of  the  courts." 

Loan  &  Trust  Co.  v.  Graham,  14  A.  B.  R.  316,  135  Fed.  717  (C.  C.  A.  W.  Va.) : 
"The  pleadings  in  this  case  clearly  present  for  the  consideration  of  the  court 
a  petition  for  review  of  the  action  of  the  lower  court,  as  distinguished  from  an 
appeal  therefrom;  and  on  such  proceeding  questions  of  law,  and  not  of  fact, 
can  be  considered  and  passed  upon  by  this  court." 

In  re  O'Connell,  14  A.  B.  R.  238,  137  Fed.  838  (C.  C.  A.  Mass.) :  "Of  course 
we  are  limited  to  matters  of  law."  This  was  a  proceedings  in  bankruptcy 
proper,  not  appealable  under  §  25a,  being  a  refusal  to  reopen  an  alleged  unad- 
ministered  bankruptcy  estate. 

In  re  Rouse,  Hazard  &  Co.,  1  A.  B.  R.  234,  91  Fed.  96  (C.  C.  A.  Ills.):  ".It 
will  be  seen  that  the  statute  contemplates  two  different  proceedings  and  for 
two  diiTerent  purposes.  The  one  is  a  review  of  an  adjudication  touching  the 
merits  of  a  claim  which  may  rest  upon  a  question  of  fact  or  a  question  of  law. 
Such  an  adjudication  can  only  be  reviewed  by  appeal  within  ten  days  from  the 
adjudication,  and  will  only  lie  where  the  claim  adjudicated  amounts  to  $500  or 
over.  The  appellate  court  reviews  the  facts  as  well  as  the  law.  In  the  other 
case  the  appellate  court  acts,  not  upon  appeal,  but  by  original  petition  of  a 
complaining  party,  and  is  given  authority  to  review  and  to  revise  in  matter 
of  law  only  the  proceeding  of  the  bankrupt  court  that  is  complained  of." 

In  re  Richards,  3  A.  B.  R.  145,  96  Fed.  935  (C.  C.  A.  Wis.):  "In  the  case  of 
an  appeal  the  facts  as  well  as  the  law  are  before  this  court  for  review.  In  the 
case  of  original  petition  this  court  has  authority  to  review  merely  a  matter  of  law 
arising  in  the  course  of  the  proceeding  below.  The  latter  is  intended  as  a  sum- 
mary mode  of  reviewing  any  supposed  erroneous  holding  upon  a  question  of 
law    and   does   not   contemplate   a   review  of  the   facts." 

§  2882.  Distinctions  between  §  24  (b)  and  §§  24  (a)  and  2  5  (a). 

— Under  §§  24  (a)  and  25  (a),  jurisdiction  is  conferred  to  review  facts 
as  well  as  law,  this  being  done  by  way  of  "appeal:"  under  §  24  (b)  juris- 
diction exists  to  review  only  matters  of  law,  this  being  done  by  "writ 
of  error"  or  "petition  for  revision"  as  may  be  proper. •'^- 

Section  25  (a)  is  available  only  "in  bankruptcy  proceedings"  proper  as 
distinguished  from  "controversies  arising  in  bankruptcy  proceedings,"  and 
Is  not  available  even  in  all  "bankruptcy  proceedings"  but  only  in  the  three 
instances  of  adjudications  of  bankruptcy,  discharge,  and  allowance  of 
claims. 33 

Section  24  (a^  is  not  available  in  bankruptcy  proceedings  proper  in  any 
case,  not  even  in  those  cases  not  included  within  any  of  the  three  classes 
of  §  25  (a)  ;  but  is  solely  available  in  "controversies  arising  in  bankruptcy 
proceedings,"  and  then  only  where  such  controversies  would  have  been 
appealable  had  they  arisen  elsewhere  than  in  the  course  of  a  bankruptcy 
proceedings.^^ 

Section  24  (b)  has  been  held  not  available,  even  though  only  questions 

32.  See  post,  §  2942. 

33.  See  post,  §  2880,  et  seq. 

34.  See  post,  §  2912,  et  seq. 


1692  REMINGTON    ON    BANKRUPTCY.  §   2882 

of  law  are  involved,  to  review  any  of  the  three  classes  of  bankruptcy  pro- 
ceedings for  which  the  remedy  by  appeal  has  been  given  by  §  25  (a),  al- 
though available  to  review  questions  of  law  in  all  other  bankruptcy  pro- 
ceedings than  those  three  classes.  But  the  true  rule  is,  it  is  available  where 
only  questions  of  law  are  presented,  both  to  review  "proceedings  in  bank- 
ruptcy" proper,  and  also  to  review  questions  of  law  in  all  "controversies 
arising  in  bankruptcy  proceedings"  as  distinguished  from  "bankruptcy 
proceedings"  proper — that  is  to  say,  as  distinguished  from  orders  made 
in  adjudging  or  refusing  to  adjudge  the  debtor  to  be  bankrupt,  or  in  dis- 
charging or  refusing  to  discharge  him,  or  in  allowing  or  rejecting  claims, 
or"  in  the  setting  apart  of  exemptions,  or  in  the  selling  of  the  assets,  or  in 
allowing  the  expenses  of  administration,  or  in  declaring  dividends  or  in 
other  orders  made  in  the  usual  course  of  bankruptcy  proceedings. ^^ 

Whether  independent  suits  against  third  parties  to  recover  transferred 
iroperty  brought  by  trustees  in  the  United  States  District  Courts  under 
favor  of  the  amendment  of  1903,  or  suits  brought  in  such  courts  by  con- 
sent, are  to  be  considered  as  within  "controversies  arising  in  bankruptcy 
proceedings"  is  not  settled,  but  is  immaterial,  since  in  any  event  the  rights 
of  appeal  or  review  and  the  manner  of  procedure  are  governed  by  the 
statute  of  1891,  creating  the  U.  S.  Circuit  Courts  of  Appeal.^*^ 

Procedure  imder  §  24  (a)  and  (b)  is  to  be  in  conformity  with  that  pre- 
scribed by  the  statute  of  1891  creating  the  Circuit  Court  of  Appeals,  and 
the  rules  made  in  furtherance  thereof  ;-^~  procedure  under  §  25  (a)  is 
specially  prescribed  by  the  Bankruptcy  Act,  but,  where  that  act  is  silent, 
is  to  follow  the  analogy  of  the  act  of  1891.^^ 

In  what  cases  appeal  under  §  24  (a),  and  in  what  cases  writ  of  error 
or  petition  for  revision  under  §  24  (b),  may  or  must  be  used,  is  deter- 
mined— subject  to  the  above  limitations  of  §  25  (a) — by  the  act  of  1891, 
creating  the  U.  S.  Circuit  Court  of  Appeals,  and  by  the  rules  prescribed 
therefor.39 

Compare,  Dickas  v.  Barnes,  15  A.  B.  R.  569,  140  Fed.  849  (C.  C.  A.  Ohio): 
"*  *  *  that  such  orders  of  the  bankruptcy  court  as  relate  merely  to  the  ad- 
ministration of  the  estate  are  revisable  on  a  petition  for  review  under  §  24 
(b)  of  the  Act;  that  such  orders  and  decrees  as  are  in  the  nature  of  independent 
suits  and  controversies  arising  in  the  course  of  bankruptcy  proceedings  are  re- 
viewable on  appeal  or  writ  of  error  as  the  case  may  be,  under  §  24  (a),  ex- 
cept that  in  the  few  cases  specified  in  §  25  (a)  (cases  withdrawn  from  those 
described  in  the  general  language  of  the  preceding  section,  24,)  a  remedy  by 
appeal   is  given   when   promptly  prosecuted.     And   our   further   conclusion   was 

35.  See  post,  §  2928,  et  seq. 

36.  Compare,  In  re  Drayton,  13  A.  B.  R.  602,  135  Fed.  883  (D.  C.  Wis.).  See 
ante,  §  2874,  and  post,  §  2927  and  §  2940. 

37.  See  post,  §  2920. 

38.  See  post,  §  2959.  ' 

39.  Inferentially,  In  re  McKenzie,  15  A.  B.  R.  681.  142  Fed.  383  (C.  C.  A. 
Ark.). 


§   2883  REVIEW    IN    CIRCUIT    COURT    OF    APPEALS.  1693 

declared  that  the  particular  appellate  remedies  prescribed  for  the  several  classes 
of  cases  were  so  distinctly  given  as  to  preclude  the  court  from  employing  in 
a  given  case  any  other  remedy  than  the  one  specified  for  that  case." 

Delta  Xat'l  Bk.  r.  Easterbrook,  13  A.  B.  R.  338,  133  Fed.  338  (C.  C.  A.  Tex.): 
"*  *  *  and  if  this  court  has  jurisdiction  to  review  the  same,  the  authority 
must  be  found  under  §  24  (a)  and  in  the  appellate  jurisdiction  of  the  Circuit 
Court  of  Appeals,  as  granted  by  the  act  of  1891,  which  jurisdiction  is  not  re- 
stricted by  the   Bankruptcy   Law." 

§  2883.  Resort  to  Appeal  or  Petition  for  Review  on  Error,  Op- 
tional in  Proper  Case. — Resort  to  appeal  or  to  petition  for  review  on 
error  is  optional  in  a  proper  case.-**^ 

In  re  McKenzie,  1.5  A.  B.  R.  679,  142  Fed.  383  (C.  C.  A.  Ark.,  affirming  13 
A.  B.  R.  227):  "*  *  *  the  grant  of  the  jurisdiction  'to  revise  in  matter  of 
law  the  proceedings  of  the  several  inferior  courts  of  bankruptcy'  by  §  24  (b) 
and  the  grant  of  jurisdiction  to  review  final  decisions  therein  by  appeal,  are  not 
exclusive  of  each  other,  but  concurrent  and  cumulative.  Decisions  of  questions 
of  law  may  in  many  cases  be  revised  by  petition  in  the  Circuit  Court  of  Appeals, 
under  §  24b  during  the  pendency  of  the  proceedings,  which  are  also  review- 
able by  appeal  after  final  decisions  have  been  rendered.  The  petition  for  re- 
vision in  effect  invokes  a  decision  upon  a  demurrer,  an  appeal,  one  upon  the  mer- 
its of  the  case.  The  former  permits  the  appellate  court  to  determine  legal 
questions  without  an  examination  of  the  evidence  upon  disputed  issues  of  the 
fact,  the  latter  allows  it  to  review  the  entire  case.  In  many  cases  parties  ag- 
grieved have  the  option  to  present  questions  of  law  by  petition  for  revision,  or 
questions  of  law  and  fact  by  an  appeal. 

"This  case  is  of  that  nature.  It  involves  the  title  to  a  portion  of  the  estate 
of  the  bankrupt,  not  a  claim  of  a  creditor  based  upon  his  debt,  obligation,  or 
wrongful  act.  If  the  controversy  had  arisen  in  a  Federal  court  when  it  was  not 
sitting  in  bankruptcy,  the  final  decision  of  it  would  have  been  reviewable  in 
this  court  by  writ  of  error  or  appeal.  Jurisdiction  to  review  the  final  judgment 
in  this  case  upon  both  the  law  and  the  facts  by  an  appeal  was  granted  by  §  24a, 
and  jurisdiction  to  revise  the  action  of  the  bankruptcy  court  herein  by  §  24b. 
As  the  petitioner  sought  to  review  a  question  of  law  only,  the  proceeding 
by  petition  for  revision  was  the  more  appropriate  and  convenient  method  and 
this  court  has  jurisdiction  to  entertain  it.  Act,  March  3,  1891,  ch.  517,  §  6, 
26  Stat.  828,  Bankrupt  Act,  §§  2   (7),  24a,  24b." 

In  re  Holmes,  15  A.  B.  R.  689,  142  Fed.  392  fC.  C.  A.  Colo.):  "The  ex- 
istence of  the  debt  is  conceded.  The  only  question  which  the  case  pre- 
sents is  whether  or  not  the  mortgagee  is  entitled  to  his  preference 
by  virtue  of  his  chattel  mortgage.  This  is  a  controversy  over  the  title 
and  property  of  the  estate  of  the  bankrupt  between  the  trustee  and  the  mort- 
gagee,- a  party  adverse  to  the  trustee  and  the  bankrupt,  of  which  this  court  is 
given  appellate  jurisdiction  by  Bankrupt  Act,  §  24a.  In  the  second  year  after 
the  Act  of  1898  was  passed  this  court  decided  that  a  petition  to  revise  in  matter 
of  law  under  section  24b  an  appealable  order  or  judgment,  could  not  be  main- 
tained, and  numerous  decisions  have  since  been  rendered  to  the  effect  that  the 
right  of  appeal  and  the  right  of  revision  are  exclusive  each  of  the  other.     In  re 

40.    See  post,  §  2915. 


1694  REMINGTON    ON    BANKRUPTCY.  §   2884 

Kuffler,  11  Am.  B.  R.  469,  127  Fed.  125;  In  re  Worcester  County,  4  Am.  B. 
R.  496,  102  Fed.  §08,  811;  First  Nat'l  Bk.  v.  State  Nat.  Bank,  12  Am.  B.  R. 
440,  131  Fed.  430,  433;  In  re  Friend,  13  Am.  B.  R.  595,  134  Fed.  778,  781,  67  C. 
C.  A.  500,  503;  In  re  Mueller,  14  Am.  B.  R.  256,  135  Fed.  715.  This  theory, 
however,  has  resulted  in  such  contrariety  of  decision  relative  to  the  proper 
method  of  review  of  specific  orders  and  such  confusion  and  uncertainty  in  the 
practice  that  it  has  become  necessary  for  lawyers  in  many  instances  to  take 
an  appeal  and  file  a  petition  for  .revision  in  the  same  case  in  order  to  be  sure 
to  obtain  a  review  of  the  ruling  challenged.  In  re  Worcester  County,  4  Am. 
B.  R.  496,  102  Fed.  808,  811.  Thus  it  was  held  in  the  cases  of  In  re  Worcester 
County,  4  Am.  B.  R.  496,  102  Fed.  808,  814,  42  C.  C.  A.  637,  643,  ^nd  In  re 
Rouse-Hazard  Co.,  1  Am.  B.  R.  234,  91  Fed.  96,  33  C.  C.  A.  356,  that  an  order 
which  allowed  a  creditor  a  preference  was  reviewable  by  a  petition  for  revision 
and  not  by  appeal,  while  in  Cunnigham  z<.  German  Ins.  Bank,  4  Am.  B.  R.  192, 
103  Fed.  932,  935;  In  re  Roche,  4  Am.  B.  R.  369,  101  Fed.  956;  and  In  re 
Soudan  Mfg.  Co.,  8  Am.  B.  R.  145,  113  Fed.  804,  the  opposite  conclusion  was 
reached. 

"Aloreover,  under  the  theory  that  the  appellate  and  revisory  jurisdiction 
of  the  courts  of  appeals  are  exclusive  each  of  the  other,  a  large  share  of  the 
time  and  labor  of  the  judges  of  the  courts  of  appeals,  and  of  the  lawyers  who 
assist  them,  and  no  insignificant  portion  of  the  means  of  the  litigants,  all  of 
which  are  imperativelv  demanded  for  the  decision  of  the  merits  of  the  questions 
the  parties  seek  to  present,  or  of  still  more  important  issues  of  law,  are  con- 
sumed in  the  litigation,  determination,  and  preparation  of  opinions  concerning 
the  question  whether  an  order  or  proceeding  in  bankruptcy  which  is  clearly 
reviewable  must  be  reviewed  by  appeal  or  by  petition  for  revision.  Witness 
the  authorities  already  cited  and  numerous  other  learned  opinions  upon  this 
question  which  crowd  the  reports  of  the  Courts  of  Appeals.  In  this  state  of 
the  case,  in  the  year  1903,  an  original  petition  to  revise  in  matter  of  law  proceed- 
ings of  the  district  court  of  Kingfisher  countjs  Okla.,  which  culminated  on 
April  6,  1903,  in  an  order  which  dismissed  an  involuntary  petition  in  bank- 
ruptcy was  presented  to  this  court.  The  order  of  the  District  Court  was  a 
'judgment  refusing  to  adjudge  the  defendant  a  bankrupt.'  it  was  appealable 
under  Bankrupt  Act  §  25a,  and  an  appeal  from  it  would  have  brought  up  for 
review  all  the  preceding  rulings  in  the  case.  This  court  certified  these  facts 
to  the  Supreme  Court,  and  inquired  whether  it  had  jurisdiction  to  superintend 
and  revise,  in  matter  of  law,  these  proceedings  in  the  District  Court  of  King- 
fisher county,  and  the  Supreme  Court  answered  in  the  affirmative.  The  fact  that 
the  only  real  object  of  the  petition  in  that  c^se  was  to  reverse  the  judgment 
refusing  to  adjudge  the  defendant  a  bankrupt  was  disclosed  by  the  certificate  to 
the  Supreme  Court  and  appears  in  the  report  of  the  case.  Plymouth  Cordage 
Co.  V.  Smith,  194  U.  S.  311.  After  the  rendition  of  this  decision  this  court 
proceeded  upon  the  original  petition  for^  revision  to  review  and  reverse  the 
judgment  of  the  District  Court  of  Kingfisher  county,  and  to  direct  it  to  take 
further  proceedings  in  the  case.  In  re  Plymouth  Cordage  Co.,  13  Am. -B.  R. 
665,  135   Fed.   1000." 

§  2884.  Thus,  in  "Controversies."— A  litigant  in  a  proper  case  has 
the  option  for  review  of  an  order  in  controversies  arising  out  of  bank- 
luptcy  proceedings,  to  proceed  either  by  appeal,  or  by  petition  for  re- 
vision.   He  may  proceed  in  either  way  that  he  wotild  have  been  entitled  to 


§   2887  REVIEW    IN    CIRCUIT    COURT    OF    APPEALS.  1695 

pursue  had  the  controversy  arisen  in  the  federal  court  in  any  other  than 
a  bankruptcy  case.^^ 

Apparently,  Hewitt  v.  Berlin  Machine  Co.,  11  A.  B.  R.  709,  194  U.  S.  300: 
"If  the  trustee  had  carried  the  case  to  the  Circuit  Court  of  Appeals  on  petition 
for  supervision  and  revision  under  §  24b  of  the  bankruptcy  law  *  *  *^ 
the  case  would  have  fallen  within  Holden  v.  Stratton,  191  U.  S.  115,  10  Am. 
B.  R.  786.  and  the  appeal  to  this  court  would  have  failed.  But  he  took  it 
there  by  appeal,  though  accompanied  by  some  apparent  effort  to  avail  himself 
also  of  the  other  method.  And  as  the  Berlin  Machine  Works  asserted  title  to 
the  property  in  the  possession  of  the  trustee  by  an  intervention  arising  a  dis- 
tinct and  separable  issue,  the  controversy  may  be  treated  as  one  of  those  'con- 
troversies arising  in  the  bankruptcy  proceedings'  over  which  the  Circuit  Court 
of  Appeals  could,  under  §  24a,  exercise  appellate  jurisdiction  as  in  other  cases." 

§  2885.  If  Facts  Undisputed,  Petition  to  Revise  Only  Remedy. — 

Where  the  facts  are  not  disputed,  it  seems  a  petition  for  revision  is  the 
proper  remedy.^  2 

§  2886.  If  Facts  Disputed,  May  Be  Reviewed  Only  if  Appeal  Avail- 
S,ble. — If,  on  the  other  hand,  the  facts  are  disputed,  they  may  be  re- 
viewed, if  reviewable  at  all,  only  by  appeal.'*^ 

Obiter,  Ellis  v.  Krulewitch,  15  A.  B.  R.  617,  141  Fed.  954  (C.  C.  A.):  "More- 
over, if  the  final  order  of  the  referee,  inade  in  the  proceeding  subsequent  to 
the  order  overruling  the  demurrer,  were  here  for  review,  it  is  difficult  to  per- 
ceive how  error  of  law  could  be  predicated  of  it,  because  it  is  made  upon  evi- 
dence from  which  men  of  different  minds  migfit  draw  different  conclusions, 
and  a  question  of  this  nature  is  a  question  of  fact,  reviewable  by  appeal  and  not 
by  petition  for  review." 

§  2887.  Holdings  That  Appeal  under  2  5   (a)  Exclusive  of  Error. 

—It  has  been  held  that  appeal  was  the  exclusive  method  of  obtaining  re- 
view in  bankruptcy  proceedings  proper  in  cases  where  the  statute  expressly 
permits  appeal  in  §  25,  and  that  a  petition  for  review  under  §  24  (b)  would 
not  lie. 

Thus,  the  dismissal  of  a  petition  for  discharge  for  want  of  prosecution, 
being  in  effect  a  final  judgment  denying  discharge,  has  been  held  review- 
able only  by  appeal. 

41.  See  ante,  §  2883.  Dodge  v.  Norlin,  13  A.  B.  R.  176,  133  Fed.  367  (C.  C. 
A.  Colo.);  apparently,  Hutchinson  v.  Otis,  10  A.  B.  R.  275,  123  Fed.  14  (C.  C.  A. 
Mass.);  inferentially.  Printing  Co.  v.  Brew.  Co.,  4  A.  B.  R.  183,  101  Fed.  700 
(C.  C.  A.  Ky.).  And  compare,  contra,  Davidson  v.  Friedman,  15  A.  B.  R.  490, 
140  Fed.  853  (C.  C.  A.  Ohio).  Also,  see  contra.  In  re  Antigo  Screen  Door  Co., 
10  A.  B.  R.  359,  123  Fed.  249   (C.  C.  A.  Wis.). 

42.  Hutchinson  v.  LeRoy,  8  A.  B.  R.  20.  113  Fed.  202  (C.  C.  A.  Mass.),  which 
was  the  case  of  an  intervening  petition,  following  trust  funds.  Impliedly,  Mor- 
gan V.  Nat'l  Bk.,  16  A.  B.  R.  642,  145  Fed.  463  (C.  C.  A.  W.  Va.).  Instance. 
Moore  V.  Green,  16  A.  B.  R.  651,  145  Fed.  480   (C.  C.  A.  W.  Va.). 

43.  Instance  held  not  to  be  such  dispute  and  uncertainty  in  record  as  to  pre- 
vent petition  for  revision.  In  re  Great  Western  Mfg.  Co..  18  A.  B.  R.  260,  152 
Fed.  123  (C.  C.  A.  Neb.). 


1696  REMINGTON    ON    BANKRUPTCY.  §   2888 

In  re  Kuffler,  11  A.  B.  R.  469,  127  Fed.  125  (C.  C.  A.  N.  Y.) :  "It  is  sought 
to  review  this  order  (denying  a  discharge)  by  a  petition  for  review  under  § 
24   (b).     *     *     * 

"The  provisions  of  the  section  cited  refer  to  cases  not  provided  for  by  appeal. 
Section  25  allows  appeals  to  be  taken  in  bankruptcy  proceedings  as  in  equity 
cases,  'from  a  judgment  granting  or  denying  a  discharge.'  " 

In  re  Mueller,  14  A.  B.  R.  256,  135  Fed.  715  (C.  C.  A.  Ky.) :  "These  remedies 
■are  exclusive  of  each  other.  That  which  may  come  here  by  appeal  cannot 
come  here  for  review." 

Likewise,  the  confirmation  of  a  composition  has  been  held  not  review- 
able by  writ  of  error,  but  only  by  appeal.-*^ 

Again,  an  adjudication  of  bankruptcy  has  been  held  reviewable  only  by 
appeal. "^^  •  ^ 

In  re  Good,  3  A.  B.  R.  605,  99  Fed.  389  (C.  C.  A.  Mo.):  '"Inasmuch  as  Congress 
has  seen  fit  to  prescribe  by  this  section  [25  (a)]  the  method  in  which  a  judg- 
ment adjudicating  a  person  a  bankrupt  may  be  reviewed  and  for  obvious  reasons 
has  fixed  a  short  period,  to  wit,  ten  days,  within  which  such  appeal  must  be 
taken,  we  think  it  is  manifest  that  such  judgments  cannot  be  reviewed  on  an 
original  petition  filed  in  this  court  .in  the  mode  prescribed  by  subdivision 
'b'  of  §  24.  No  time  limit  has  been  fixed  under  §  24  within  which  an  original 
petition  to  superintend  and  revise  in  matter  of  law  the  action  of  the  District 
Court  in  proceedings  in  bankruptcy  may  be  filed,  and  for  that  reason  we  con- 
sider it  improbable  that  it  was  the  intention  of  the  law  makers  to  allow  a  judg- 
ment adjudicating  a  person  a  bankrupt  to  be  reviewed  otherwise  than  by  ap- 
peal, and  within  the   time  expressely  limited  in  §   25." 

Lockman  v.  Lang,  11  A.  B.  R.  597,  128  Fed.  279  (C.  C.  A.  Colo.):  "A  pro- 
ceeding in  bankruptcy  (here  t<ie  adjudication  of  a  person  to  be  a  bankrupt)  is 
a  proceeding  in  equity  and  orders  and  decrees  therein  cannot  be  reviewed 
by  writs  of  error." 

And  the  allowance  or  rejection  of  a  claim  over  $500  has  been  held  re- 
viewable only  by  appeal.-**' 

First  Nat.  Bk.  v.  State  Nat.  Bk.,  12  A.  B.  R.  440,  444,  131  Fed.  430  (C.  C.  A. 
Mont.) :  "But  in  these  cases  it  was  held  that  no  such  rehearing  or  review  could 
be  had  where  the  appeal  is  taken  under  the  provisions  of  §  25a.  The  general 
consensus  of  opinion  is  that,  §  25a  having  provided  a  means  to  review  by  ap- 
peal three  kinds  of  judgments,  every  other  means  is  excluded." 

§  2888.  Holdings  That  Optional  Even  in  Three  Cases  Where  Ap- 
peal Provided  under  2  5  (a). — But  the  contrary  has  also  been  held; 
iliat,  if  only  review  of  the  law  is  desired  and  the  facts  are  settled,  it  may 
be  had  by  petition  for  review.-*" 

44.  In  re  Friend,  13  A.  B.  R.  595,  134  Fed.  778  (C.  C.  A.  Ills.). 

45.  In  re  Worcester  Co.,  4  A;  B.  R.  500,  102  Fed.  808  (C.  C.  A.  Mass.);  Coal 
Fields  Co.  v.  Caldwell,  17  A.  B.  R.  138,  147  Fed.  475  (C.  C.  A.  W.  Va.). 

46.  In  re  Jourdan,  7  A.  B.  R.  186  (C.  C.  A.  Mass.);  Union  Nat.  Bk.  v.  Neill,  17 
A.  B.  R.  853  (C.  C.  A.  Tex.). 

47.  In  re  Holmes,  15  A.  B.  R.  689,  142  Fed.  392  (C.  C.  A.  Colo.),  quoted  ante, 
§  2883.  In  re  Ellis,  16  A.  B.  R.  221,  143  Fed.  103  (C.  C.  A.  Ohio);  instance, 
Plymouth  Cordage  Co.  v.  Smith,  194  U.  S.  311;  instance  (point  not  adverted  to). 
In  re  Plymouth  Cordage  Co.,  13  A.  B.  R.  666,  135  Fed.  1000  (C.  C.  A.  Okla.). 


§   2890  REVIEW    IN    CIRCUIT    COURT   OF    APPEALS,  1697 

Stevens  v.  Xave-^McCord  Co.,  17  A.  B.  R.  612,  150  Fed.  71  (C.  C.  A.  Colo.): 
"The  order  of  dismissal  presented  questions  of  law  only,  and  these  were  re- 
viewable by  petition  for  revision  under  §  24  (b)  of  the  Bankruptcy  Law.  *  *  * 
But  it  was  a  'judgment  refusing  to  adjudge  the  defendant  a  bankrupt'  and 
was  also   appealable  by  the  express   provisions   of   §   25    (a).'' 

Obiter,  Taft  Co.  v.  Century  Sav.  Bk.,  15  A.  B.  R.  596,  141  Fed.  370  (C.  C.  A. 
Iowa):  "It  is  true  the  cases  of  Dodge  v.  Norlin,  Plymouth  Cordage  Co.  v. 
Smith,  and  In  re  Plymouth  Cordage  Co.  afforded  authority  for  the  proposition 
that  the  judgment  appealed  from  might  have  been  reviewed  on  a  petition  for 
revision,  appealed  pursuant  to  §  24b  of  the  Bankruptcy  Act,  but  all  these  cases 
clearly  recognized  that  §  25a  is  also  available  to  any  party  aggrieved  by  a 
judgment  adjudging  or  refusing  to  adjudge  one  a  bankrtipt." 

Obiter,  In  re  McKenzie.  15  A.  B.  R.  680,  142  Fed.  385  (C.  C.  A.  Ark.):  "Coun- 
sel for  the  respondent  insists  that  this  court  is  without  jurisdiction  to  de- 
termine the  question  of  law  presented  by  the  petition  for  the  reason  that  the 
amount  involved  exceeds  $500  and  §  25  (a)  of  the  Bankruptcy  Law  of  1898  per- 
mits an  appeal  from  a  judgment  allowing  or  rejecting  a  debt  or  claim  of  $500 
or  over.  But  the  claim  of  the  petitioner  is  probably  not  of  the  character  re- 
ferred to  in  this  section  of  the  statute  and  if  it  were  the  grant  of  the  juris- 
diction to  revise  in  matter  of  law  the  proceedings  of  the  several  inferior  courts 
of  bankruptcy  by  §  24  (b)  and  the  grant  of  jurisdiction  to  review  final  de- 
cisions therein  by  appeal,  are  not  exclusive  of  each  other  but  concurrent  and 
cumulative."  ,  , 

Division    I. 
Appeals  to  Circuit  Court  oe.  Appeals. 

SUBDIVISION    "a." 

Appeals  in  Bankruptcy  Proceedings  Proper. 

§  2889.  Appeals  in  Bankruptcy  Proceeding's  Proper. — Appeals  as 
in  equity  cases  may  be  taken  in  certain  cases  in  the  bankruptcy  proceed- 
ings themselves  from  the  courts  of  bankruptcy  in  which  they  are  pending 
to  the  circuit  court  of  appeals  of  the  United  States,  and  to  the  supreme 
court  of  the  territories.'*^ 

§  2890.  Order  Appealed  from  Must  Be  Final  Order. — The  order  ap- 
pealed from  must  be  a  final  order,  else  it  is  not  appealable.^^ 

Stevens  v.  Nave-McCord  Co.,  17  A.  B.  R.  612,  150  Fed.  71  (C.  C.  A.  Colo.): 
"A  decision  which  finally  determines  the  rights  of  parties  to  secure  in  that  suit 
the  relief  they  seek  is  a  'final  decision,'  within  the  meaning  of  that  term  in 
the  act  creating  the   Circuit   Court  of  Appeals,  although  it  is  not  a   decision  of 

48.  Bankr.  Act,  §  25  (a).  Coal  Fields  Co.  v.  Caldwell,  17  A.  B.  R.  135,  147 
Fed.  475  (C.  C.  A.  W.  Va.). 

49.  But  Interlocutory  Order  Awarding  Injunction  Appealable  under  Special 
Statutory  Provision  of  Act  of  1891. — But  under  §  7  of  Act  of  1891,  an  appeal  is 
allowable  from  an  interlocutory  injunction  where  a  final  order  would  have  been 
appealable.     O'Dell  v.  Boyden,  17  A.  B.  R.  751,  150  Fed.  731  (C.  C.  A.  Ohio). 

2  Rem  B— 32 


1698  REMINGTON    ON   BANKRUPTCY.  §   2893 

the  merits  of  the  case  and  does  not  bar  another  suit  or  proceeding  for  the 
same  cause.  It  is  a  final  adjudication  of  the  particular  case,  and  that  is  suf- 
ficient to  vest  in  the  defeated  parties  the  right  of  review.  Act  March  3,  1891. 
*  *  *  The  order  of  dismissal  was  of  this  nature  and  it  was  therefore  a  final 
decision. 

.<*  *  =K  'J^J^g  argument  that  this  order  was  not  a  judgment  because  it 
was  an  order  of  dismissal  relies  too  implicitly  on  a  difference  of  names  and 
lacks  support  by  a  difference  in  substance  and  effect.  The  dismissal  of  the  peti- 
tion is  the  act  prescribed  by  the  bankruptcy  law  to  evidence  a  'judgment  refus- 
ing to  adjudge  the  defendant  a  bankrupt.'  Sections  18d,  ISe,  and  18g  each 
require  the  court  in  the  cases  there  specified  to  'make  the  adjudication  or  dis- 
miss the  petition.'  The  petitioners  set  forth  the  act  of  bankruptcy  and  prayed 
for  an  adjudication.  The  court  refused  to  make  the  adjudication  and  in  con- 
formity with  the  provision  of  the  bankruptcy  law  dismissed  the  petition.  The 
order  of  dismissal  was  the  judgment  refusing  to  make  the  adjudication  pre- 
scribed by  the  law,  and  it  was  appealable  by  the  express  terms  of  the  act  of 
Congress." 

Thus,  an  interlocutory  order  reversing  an  order  of  a  referee  refusing 
to  compel  a  bankrupt  to  produce  his  books  for  examination,  is  not  ap- 
pealable.^^ 

§  2891.  Right  of  Appeal  Can  Not  Be  Enlarged  nor  Retricted  by 
Court. i' — The  right  of  appeal,  as  given  by  the  statute,  can  neither  be  en- 
larged nor  restricted  by  the  court.-^^ 

§  2892.  Such  Appeals  Permissible  Only  as  to  Adjudication,  Dis- 
charge and  Allowance  of  Claims. — Such  appeals  may  be  taken  in  the 
following  cases  and  in  no  other  cases  arising  in  bankruptcy  proceedings 
proper,  namely,  from  a  judgment  adjudging  or  refusing  to  adjudge  the 
defendant  a  bankrupt ;  from  a  judgment  granting  or  denying  a  discharge ; 
and  from  a  judgment  allowing  or  rejecting  a  debt  or  claim  of  $500  or 
over  .^2 

§  2893.  First :  Appeals  from  Adjudications  or  Refusals  to  Adjudge 
Bankrupt. — Appeals,  under  §  25  (a),  may  be  taken  from  judgments  ad- 
judging or  refusing  to  adjudge  a  debtor  to  be  a  bankrupt.-^^ 

50.  Goodman  v.  Brenner,  6  A.  B.  R.  470  (C.  C.  A.  La.). 

51.  See  post,  §  2913.  Lockman  v.  Lang,  12  A.  B.  R.  497,  128  Fed.  279  (C.  C. 
A.  Colo.).  In  re  Abraham,  2  A.  B.  R.  266,  93  Fed.  783  (C.  C.  A.  Ala.,  reversed, 
on  other  grounds,  sub  nom.  Bryan  v.  Bernheimer,  5  A.  B.  R.  623,  U.  S.  Supreme 
Ct.);  In  re  Whitener,  5  A.  B.  R.  207,  105  Fed.  180  (C.  C.  A.  Tex.). 

But  compare  action  of  court  in  Columbia  Iron  Works  v.  Nat'l  Lead  Co.,  11 
A.  B.  R.  340,  127  Fed.  99  (C.  C.  A.  Mich.),  where  the  court  refused  to  dismiss 
an  appeal,  although  bond  and  citation  \yere  not  filed  until  after  ten  days,  although 
an  appeal  is  not  "taken"  until  bond  is  filed  and  citation  issued. 

52.  Bankr.  Act,  §  25  (a).  But  see  Steele  v.  Buel,  5  A.  B.  R.  163,  104  Fed.  968 
(C.  C.  A.  Iowa),  apparently  holding  other  cases  in  bankruptcy  proceedings 
proper,  to-wit,  exemptions,  appealable  under  general  equity  powers. 

53.  Bankr.  Act,  §  25  (a).  Taft  v.  Century  Savings  Bk.,  15  A.  B.  R.  596,  141 
Fed.  369  (C.  C.  A.  Iowa);  Coal  Fields  Co.  v.  Caldwell,  17  A.  B.  R.  135,  147  Fed. 
475  (C.  C.  A.  W.  Va.);  Stevens  v.  Nave-McCord  Co.,  17  A.  B.  R.  612,  150  Fed. 
71  (C.  C.  A.  Colo.);  instance,  Columbia  Iron  Wks.  v.  Nat'l  Lead  Co.,  11  A.  B. 
R.  340,  127  Fed.  99  (C.  C.  A.  Mich.);  instance,  Zugalla  v.  Mercantile  Agency,  16 


§    2894  REVIEW    IX    CIRCUIT    COURT    OF    APPEALS.  1699 

§  2894.  But  No  Appeal  if  Jury  Trial  Had.— But  if  there  has  been  a 
jury  trial  under  §  19,  the  facts  passed  on  by  the  jury  may  be  reviewed 
only  on  writ  of  error,  and  appeal  will  not  lie.'^^ 

Elliott  v.  Toeppner,  9  A.  B.  R.  50,  187  U.  S.  327:  "The  right  to  a  trial  by 
jury  on  written  application  thus  given  is  absolute  and  cannot  be  withheld  at 
the  discretion  of  the  court.  In  that  respect  it  differs  from  the  trial  of  an  issue 
out  of  chancery,  which  the  court  of  equity  is  not  bound  to  grant,  nor  bound 
by  the  verdict  if  such  a  trial  be  granted.  The  court  cannot,  as  the  chancellor 
may,  enter  judgment  contrary  to  the  verdict,  but  the  verdict  may  be  set  aside 
or  the  judgment  may  be  reversed  for  error  of  law  as  in  common-law  cases. 

"*  *  *  The  proceedings  in  administration  of  the  estate  are  equitable  in 
their  nature,  but  the  bankruptcy  courts  act  under  specific  statutory  authority, 
and  when,  on  an  issue  of  fact  as  to  the  existence  of  ground  for  adjudication, 
a  jury  trial  is  demanded,  it  is  demanded  as  of  right,  and  the  trial  is  a  trial 
according  to  the  course  of  tlie  common  law.  This  being  so,  judgments  therein 
rendered  are  revisable  only  on  writ  of  error." 

Duncan  v.  Landis,  5  A.  B.  R.  649,  106  Fed.  839  (C.  C.  A.  Pa.):  "This  trial 
by  jury  was  a  matter  of  right,  and  could  not  be  denied  if  seasonably  demanded. 
The  verdict  of  the  jury  was  conclusive  of  the  issue  of  fact,  and  binding  upon 
the  court.  Final  judgment  must  be  entered  upon  such  verdict,  either  adjudg- 
ing or  refusing  to  adjudge  the  defendant  to  be  a  bankrupt.  The  trial,  therefore, 
proceeded  according  to  the  course  of  the  common  law. 

"Section  6,  cl.  1,  of  the  act  to  establish  Circuit  Courts  of  Appeals  (26  Stat. 
826)  provides  as  follows: 

"  'Sec.  6.  The  Circuit  Court  of  Appeals  established  by  this  act  shall  exercise 
appellate  jurisdiction  to  review,  by  appeal  or  writ  of  error,  final  decisions  in  the 
District  Court  and  the  existing  Circuit  Courts  in  all  cases  other  than  those 
provided  for  in  the  preceding  section  of  this  act,  unless  otherwise  provided  by 
law.' 

"*  *  *  On  the  other  hand,  where  the  right  to  trial  b}^  jury  exists  and  has  been 
invoked,  neither  the  appellate  court  nor  the  court  below  can  review  the  facts, 
but  can  only  control  in  matters  of  law,  which  a  writ  of  error  is  peculiarly  fitted 
to  raise  in  an  appellate  court.  Indeed,  the  provision  of  the  constitution  that 
'no  fact  tried  by  a  jury  shall  be  otherwise  re-examined  in  any  court  of  the 
United  States,  than  according  to  the  common  law,'  is  decisive  on  this  point; 
and  since  the  case  of  Parsons  v.  Bedford,  3  Pet.  433,  7  L.  Ed.  732,  no  ques- 
tion can  be  made  but  that  such  a  case  as  the  present,  in  which  there  has-been  a 
trial  b}^  jury,  as  authorized  by  §  19  of  the  Bankrupt  Act,  is  a  trial  according 
to  the  course  of  the  common  law,  and  cannot  be  reviewed  b}^  what  is  tech- 
nically known  as  an  'appeal,'  but  must  be  the  subject  of  a  writ  of  error,  as  that 
writ  was   understood  and  used  at   common   law.     *     *     * 

"Prior  to   the  statute  of  Westminster   (13   Edw.   1,  ch.   31)    a  writ   of  error  at 

A.  B.  R.  67,  142  Fed.  927  (C.  C.  A.  N.  J.,  reversing  In  re  Mercantile  Agency,  13 
A.  B.  R.  725);  instance,  In  re  Good,  3  A.  B.  R.  605,  99  Fed.  389  (C.  C.  A.  Mo.); 
instance,  Merchants  Nat'l  Bk.  v.  Cole,  18  A.  B.  R.  44,  149  Fed.  708  (C.  C.  A. 
Ohio). 

Order  sustaining  demurrer  to  petition  to  vacate  adjudication  of  partnership 
in  voluntarjr  bankruptcy  is  not  appealable  within  §  25  (a)  but  is  reviewable 
within  §  24  on  petition  for  review.  In  re  Ives,  7  A.  B.  R.  692,  113  Fed.  911  (C. 
C.  A.  Mich.). 

54.  Grant  Shoe  Co.  v.  Laird  Co.,  17  A.  B.  R.  1,  203  U.  S.  502;  Bower  v.  Holz- 
worth,  15  A.  B.  R.  22,  138  Fed.  28  (C.  C.  A.  Iowa);  obiter.  In  re  Neasmith,  17 
A.  B.  R.  128,  147  Fed.  160  (C.  C.  A.  Mich.). 


1700  REMINGTON   ON   BANKRUPTCY.  §    2895 

common  law  could  be  had  only  for  an  error  apparent  on  the  face  of  the  record 
or  for  an  error  in  fact,  but  by  that  ancient  statute  it  was  provided  that  excep- 
tions to  the  opinion  and  direction  of  the  court  might,  by  bills  of  exception,  be 
made  a  part  thereof,  and  therefore  be  reached  by  the  writ  of  error.  In  this 
way  so  much  of  the  facts  of  the  case  as  were  necessary  to  make  plain  the 
question  of  law  on  which  tire  exception  was  founded  are  incorporated  in  the 
record." 

.  And  Congress  did  not,  by  §  25  (a)  providing  that  appeals  in  equity 
cases  may  be  taken  from  a  judgment  adjudging  or  refusing  to  adjudge  de- 
fendant a  bankrupt,  attempt  to  empower  the  appellate  court  to  re-examine 
the  facts  determined  by  a  jury  under  §  19,  otherwise  than  according  to  the 
rules  of  the  common  law;  and  §  25  (a)  only  applies  to  such  judg- 
ments when  trial  by  jury  is  not  demanded  and  the  court  of  bankruptcy 
proceeds  on  its  own  findings  of  fact.  In  such  case,  the  facts  and  the  law 
are  reviewable  on  appeal,  while  the  verdict  of  a  jury  on  which  judgment  is 
entered,  is  conclusive  as  to  the  facts,  and  the  judgment  is  reviewable  onlv 
for  error  of  law.^^  And  upon  an  appeal  granted  under  the  nrovisions  of 
§  25  (a)  of  the  Bankruptcy  Act  from  a  final  judgment  refusing  to  adjudge 
the  defendant  a  bankrupt  rendered  upon  a  trial  by  jury  under  §  19,  the 
circuit  court  of  appeals  is  not  authorized  to  re-examine  the  proceedings  and 
remand  them  for  a  new  trial  because  of  error  in  instructions  given  or  re- 
fused or  in  the  admission  or  rejection  of  evidence.^^ 

§  2895.  Second:  Appeals  from  Judgments  .Granting  or  Denying 
Discharge. — Appeals,  under  §  25  (a),  may  be  taken  from  judgments 
granting  or  denying  discharge. ^^ 

Thus,  orders  of  dismissal  of  petitions   for  discharge  are  appealable. ^^ 

In  re  Kuffler,  11  A.  B.  R.  467,  127  Fed.  125  (C.  C.  A.  N.  Y.) :  "The  deter- 
mination   of    the    court    below,    dismissing   the    application    for    discharge    when 

55.  Elliott  V.  Toeppner,  9  A.  B.  R.  50.  187  U.  S.  327. 

56.  Elliott  V.  Toeppner,  9  A.  B.  R.  50,  187  U.  S.  327. 

It  has  been  held,  that  where  no  right  to  trial  by  jury  exists,  as  in  cases  of 
assignment  where  the  onlj'  two  issues,  triable  to  a  jury,  namely  insolvency 
and  the  commission  of  the  act  of  bankruptcy  charged,  are — the  one  not  in  issue 
and  the  other,  provable  by  the  record — the  appeal  is  in  equity,  involving  a  re- 
examination of  the  facts  as  well  as  the  law  and  does  not  follow  the  course  of  a 
hearing  where  a  jury  trial  is  waived. 

Simonson  v.  Sinsheimer,  3  A.  B.  R.  824  (C.  C.  A.  Ky.) :  However,  this  case 
states  the  rule  as  to  right  of  trial  bv  jury  too  narrowly.  While  it  is  true  the 
question  of  insolvency  raises  an  immaterial  issue,  yet  a  question  of  fact  for  the 
jury — perhaps  under  direction  of  the  court — remain  as  to  whether  the  act  of 
bankruptc}^  had  been  committed. 

Appeal  Permissible  Where  Jury  Called  but  Not  Under  §  19  of  Act. — It  has 
been  held  that  where  a  jury  is  called  but  not  under  §  19,  but  only  as  advisers  to 
the  court,  appeal  \\40uld  lie.  In  re  Neasmith,  17  A.  B.  R.  128,  147  Fed.  160  (C. 
C.  A.  Mich.). 

57.  Bankr.  Act,  §  25  (a).  Obiter,  Coal  Fields  Co.  z\  Caldwell,  17  A.  B.  R.  135, 
147  Fed.  475   (C.  C.  A.  W.  Va.). 

Compare,  Ross  z:  Saunders,  5  A.  B.  R.  350,  105  Fed.  915  (C.  C.  A.  Mass.),  as 
to  appeals  from  refusals  to  confirm  compositions,  where  compositions  would 
operate  as  discharge. 

58.  In  re  Semons,  15  A.  B.  R.  822,  72  C.  C.  A.  683  (C.  C.  A.  N.  Y.). 


§   2899  KKVIEW    IN    CIRCUIT    COURT    OF    APPEALS.  1701 

so  long  a  time  had  elapsed  that  said  application  could  not  be  reviewed  was, 
in  substance  and  efifect,  a  judgment  denying  a  discharge.  As  such  it  can  be 
reviewed   only  by  appeal." 

§  2896.  Includes  Confirming  or  Refusing  to  Confirm  Composition. 

— This  includes  a  judgment  confirming  or  refusing  to  confirm  a  composi- 
tion; for  confirmation  of  a  composition  effects,  by  statute,  a  complete  dis- 
charge.-^^ 

§  2897..  Also  Dismissals  of  Discharge  for  Want  of  Prosecution. — 

It  also  includes  an  order  dismissing  a  petition  for  discharge  for  want  of 
prosecution.^^ 

§  2898.  Third:  Appeals  from  Allowance  or  Rejection  of  Claims. — 

Appeals  may  be  taken  under  §  25  (a)  from  judgments  allowing  or  reject- 
ing a  debt  or  claim  of  $500  or  over.^^ 

In  re  Cosmopolitan  Power  Co.,  14  A.  B.  R.  606,  137  Fed.  858  (C.  C.  A. 
Ills.) :  "As  more  than  $500  of  appellant's  claim  was  disallowed,  an  appeal 
under  §  25  (a)  is  undoubtedly  proper." 

§  2899.  Amount  in  Dispute,  Not  Amount  of  Entire  Claim,  Governs. 

— It  is  the  amount  put  in  controversy,  not  the  amount  of  the  original 
claim,  that  determines  whether  sufficient  is  involved  to  permit  of  appeal 
under  §  25  (a). 6  2 

Gray  v.  Mercantile  Co.,  14  A.  B.  R.  780,  138  Fed.  344  (C.  C.  A.  N.  Dak.): 
"The  appeal  does  not  put  in  controversy  the  entire  claim,  but  only  what  was 
rejected.  *  *  *  It  is  not  easily  believable  that  the  Congress  would  grant 
a  right  of  appeal  to  one  whose  claim  for  $500  or  over  is  rejected  to  the  ex- 
tent of  $425,  the  balance  being  allowed,  and  would  at  the  same  time  deny  a  right 
of  appeal  to  one  whose  claim  for  $425  is  rejected  in  its  entirety.  The  amount 
put  in  controversy  by  the  appeal  would  be  the  same  in  either  instance.  So, 
also,  the  injury  to  the  claimant  would  be  the  same  in  either  case  if  the  re- 
jection were  wrongful.  The  purpose  of  the  Congress,  in  restricting  the  right 
of  appeal  was  evident  to  avoid  inconvenience,  delay,  and  expense  to  claimants 
and  bankrupt  estates  which  would  be  disproportionate  to  the  amount  in  contro- 
versy. When  read  with  due  regard  to  this  purpose,  the  restriction  plainly 
has  reference,  not  to  the  amount  of  the  original  claim,  but  to  the  amount  of 
the  allowance  or  rejection;  that  is,  to  the  amount  which  will  be  put  in  contro- 
versy by  the  appeal.  Hilton  v.  Dickinson,  108  U.  S.  165,  2  Sup.  Ct.  424,  27 
L.  Ed.  688;  Dows  v.  Johnson,  110  U.  S.  223,  3  Sup.  Ct.  640,  28  L.  Ed.  128.  As 
the  decree  below  did  not  allow  or  reject  any  debt  or  claim  of  $500  or  over,  there 
was  no  right  of  appeal  therefrom." 

59.  In  re  Friend,  13  A.  B.  R.  595.  134  Fed.  778  (C.  C.  A.  Ills.). 

60.  In  re  Kuffler,  11  A.  B.  R.  469,  127  Fed.  125  (C.  C.  A.  N.  Y.). 

61.  Bankr.  Act,  §  25  (a).  In  re  Stumpf,  4  A.  B.  R.  267  (Okla.  Sup.  Ct.);  In 
re  Friend,  Moss  &  Morris,  13  A.  B.  R.  595,  134  Fed.  778  (C.  C.  A.  Ills.);  Union 
Nat'l  Bk.  V.  Neil,  17  A.  B.  R.  853,  149  Fed.  720  (C.  C.  A.  Tex.);  obiter.  Coal 
Fields  Co.  v.  Caldwell,  17  A.  B.  R.  135,  147  Fed.  475  (C.  C.  A.  W.  Va.). 

62.  Inferentialiy,  In  re  Cosmopolitan  Power  Co.,  14  A.  B.  R.  603,  137  Fed. 
858  (C.  C.  A.  Ills.). 


1702  REMIXGTOX   OX    BAXKRUPTCY.  §   2902 

But  where  one  creditor  holds  several  disputed  claims  involved  in  one 
general  course  of  dealing,  each  less  than  $500  but  all  together  aggregating 
$500  or  more,  he  may  appeal.*^^ 

§  2900.  Debt  Must  Have  Been  Owed  by  Bankrupt,  Mere  Lien  on 
Property  Insufficient. — The  debt  or  claim,  to  be  appealable  under  §  25, 
must  have  been  that  of  a  creditor  of  the  bankrupt,  not  that  of  a  mere  lien- 
holder  upon  his  property,  who  is  not  at  the  same  time  also  a  creditor .^^ 

In  re  Columbia  Real  Estate  Co.,  7  A.  B.  R.  441  (C.  C.  A.  Ind.) :  "The  last 
mentioned  clause  is  probably  applicable  alone  to  a  debt  or  claim  against  the 
bankrupt  when  presented  for  proof  in  due  course,  but  it  is  not  applicable  here 
for  the  reason  (hereinafter  referred  to)  that  this  order  does  not  in  any  sense 
operate  as  a  disallowance  or  rejection  of  the  petitioner's  alleged  Equitable 
mortgage  claim." 

§  2901.  Where  Lien  or  Priority  Incident  to  Disputed  Debt,  Its 
Validity,  Priority,  etc.,  Appealable. — But  where  the  lien,  or  right  of 
priority  in  distribution,  is  also  incident  to  a  disputed  debt  owing  by  the 
bankrupt,  its  validity,  extent  and  priority  may  be  determined  by  appeal 
under  §  25  (a).^^ 

Thus,  where  it  is  a  lien  that  is  incident  to  the  disputed  debt.^** 
Or  where  it  is  a  right  of  priority  of  payment  before  dividends  that  is  in- 
cident to  the  disputed  debt. 

In  re  Cosmopolitan  Power  Co.,  14  A.  B.  R.  604,  137  Fed.  858  (C.  C.  A. 
Ills.) :  "The  case  being  here  on  appeal  respecting  the  amount  of  the  claim 
(franchise  tax)  we  think  appellant  may  also  present  any  question  concerning 
the  security  or  rank  of  the  debt,  as  an  incident  thereof,  *  *  *  though  the 
question  of  lien  or  priority,  if  alone  involved,  could  be  reviewed  only  under 
§  24b." 

§  2902.  But  Where  Debt  Undisputed  Mere  Fact  That  Disputed 
Lien  or  Priority  Incident  to  Debt  Insufficient. — But,  where  the  sole 

63.  Obiter,  Gray  v.  Mercantile  Co.,  14  A.  B.  R.  784,  138  Fed.  344  (C.  C.  A. 
N.  Dak.). 

64.  Impliedly,  Cunningham  z>.  Bank,  4  A.  B.  R.  192,  103  Fed.  932  (C.  C.  A. 
Ky.);  impliedly,  Davidson  v.  Friedman,  15  A.  B.  R.  489,  140  Fed.  853  (C.  C. 
A.  Ohio);  In  re  Soudans  Mfg.  Co.,  8  A.  B.  R.  45,  113  Fed.  806  (C.  C.  A.  Ind.); 
In  re  National  Bk.,  14  A.  B.  R.  182,  135  Fed.  62  (C.  C.  A.  Ohio).  See  anal- 
ogously, ante  §  2871. 

65.  See  ante,  §  2869. 

66.  Cunningham  v.  Bank,  4  A.  B.  R.  192,  103  Fed.  932  and  101  Fed.  977  (C. 
-  C.  A.  Ky.);  In  re  Nat'l  Bk.,  14  A.  B.  R.  182,  135  Fed.  62  (C.  C.  A.  Ohio);  In  re 

Mueller  Tr.,  14  A.  B.  R.  256,  135  Fed.  711  (C.  C.  A.  Ky.). 

Compare,  Burow  v.  Grand  Lodge,  13  A.  B.  R.  542,  133  Fed.  708  (C.  C.  A. 
Tex.),  wherein  a  creditor  holding  a  deed  of  trust  on  land  claimed  as  exempt, 
intervened,  and  prayed  that  property  mentioned  in  the  deed  of  trust  be  adjudged 
subject  thereto  and  ordered  sold  free  and  clear  by  the  trustee,  where  the  mort- 
gage provides  for  attorney's  fees  on  "foreclosure,"  the  dispute  thus  involving  the 
amount  of  a  debt.  But  in  this  case  it  does  not  appear  that  there  was  any  dis- 
pute over  the  amount  or  validity  of  the  debt. 

In  re  Roche,  4  A.  B.  R.  369,  101  Fed.  956  (C  C.  A.  Tex.),  a  case  of  a  disputed 
lien  of  a  mortgagee  for  attorney's  fees  on  proceeds  of  land. 

Obiter,  Hutchinson  v.  Otis,  10  A.  B.  R.  135,  190  U.  S.  552. 


§  2903  REVIEW    IX    CIRCUIT    COURT   OF    APPEALS.  1703 

controversy  is  about  the  lien  or  the  right  to  priority  before  dividends,  and 
the  debt  itself  is  undisputed,  merely  that  the  lien  or  right  of  priority  is  in- 
cident to  a  debt  will  not  suffice  for  appeal  as  to  the  lien    or  priority.*^'^ 
Thus,  as  to  a  lien.^^ 

Hutchinson  v.  Otis,  10  A.  B.  R.  135,  190  U.  S.  552:  "A  petition  was  filed  by 
Otis,  Wilcox  &  Co.,  asserting  a  lien  on  the  proceeds  of  a  seat  in  the  New- 
York  Stock  Exchange,  which  formerly  belonged  to  the  bankrupts.  This  lien 
had  not  been  insisted  on  by  Otis,  Wilcox  &  Co.,  because  of  their  impression 
that  they  had  been  paid  effectually.  No  one  having  changed  his  position  on 
the  faith  of  their  waiver,  the  District  Court  allowed  the  lien.  The  Circuit 
Court  of  Appeals  held  that  this  portion  of  the  decree  of  the  District  Court  was 
not  subject  to  an  appeal  to  the  Circuit  Court  of  Appeals.  The  argument 
chiefly  relied  upon  by  the  appellant  is  that  this  is  an  intervening  petition  to 
reach  a  fund  in  court,  and  is  not  a  proceeding  in  bankruptcy.  Under  the 
circumstances  of  this  case  it  seems  to  us  that  the  petition  was  incident  to  the 
claim  (Cunningham  v.  German  Ins.  Bank,  4  Am.  B.  R.  192,  101  Fed.  977),  and 
was  a  bankruptcy  proceeding  under  §  2,  cl.  7,  within  the  meaning  of  §  25,  reg- 
ulating appeals  in  bankruptcy  proceedings,  and  that  the  decree  upon  it  was  not 
'a  judgment  allowing  or  rejecting  a  debt  or  claim  of  five  hundred  dollars  or 
over,'  within  §  25a,  3,  and  was  not  an  independent  ground  of  appeal." 

Thus,  as  to  a  right  of  priority ,^'^ 

In  re  Rouse,  Hazard  &  Co.,  1  A.  B.  R.  239,  91  Fed.  96  (C.  C.  A.  Ills.):  "If 
the  controversy  coming  before  us  was  with  respect  to,  the  merits  of  the  several 
claims  of  these  labor  claimants,  we  should  be  wholly  without  jurisdiction,  for 
there  is  neither  an  appeal  nor  does  the  amount  allowed  to  any  one  claimant  ex- 
ceed the  sum  of  $500.  But  there  is  no  controversy  here  with  respect  to  the  merits 
of  tlie  claims.  The  debts  are  conceded.  The  counsel  for  the  labor  claim- 
ants, the  respondents  here,  distinctly  states  in  his  brief,  'and  no  objection  is 
raised  in  this  court  as  to  the  validity  or  justness  of  any  claims."  The  only 
question  then  sought  to  be  raised  by  this  petition  is  whether,  conceding  the 
justness  of  the  claims,  they  are  as  a  matter  of  law  entitled  to  priority  of  pay- 
ment over  the  general  creditors  of  the  bankrupt.  That  is  a  question  which  we 
think  clearly  falls  within  the  subd.  b  of  §  24,  and  can  be  determined  by  this 
court   upon    petition." 

But  the  disputed  lien  or  priority  may  be  appealable  under  §  24  (a),  as 
being  a  "controversy"  arising  out  of  bankruptcy."" 

§  2903.  Not  to  Split  Case  and  Dismiss  Portion  Affecting-  Lien  or 
Priority. — It  is  not  necessary  to  split  the  case  on  appeal,  and  to  dismiss 
the  portion  that  afifects  priority.'^  ^ 

67.  See   ante.  §   2870. 

68.  But  compare,  Burow  v.  Grand  Lodge,  13  A.  B.  R.  544.  133  Fed.  708  (C. 
C.  A.  Tex.). 

69.  Obiter.  In  re  Cosmopolitan  Power  Co.,  14  A.  B.  R.  606.  137  Fed.  858 
(C.  C.  A.  Ills.);  obiter.  In  re  First  Nat'l  Bk.  of  Canton,  14  A.  B.  R.  182,  135- 
Fed.  62  (C.  C.  A.  Ohio). 

70.  In  re  First  Nat'l  Bank  of  Canton,  14  A.  B.  R.  182,  135  Fed.  62   (C.  C.  A.  ' 
Ohio). 

71.  In  re  Cosmopolitan  Power  Co.,  14  A.  B.  R.  606,  137  Fed.  858  (C.  C.  A. 
Ills.);  apparently  contra,  In  re  Worcester  County,  4  A.  B.  R.  496,  102  Fed. 
808   (C.  C.  A.  Mass.). 


1704  REMIXGTOX    OX    BAXKRUPTCY.  §   2907 

§  2904.  "Claim"  Refers  Only  to  Money  Demand. — The  word 
"claim"  as  used  in  §  25  (a)  refers  to,  and  means,  only  a  money  demand." ^ 

§  2905.  And  to  "Claims"  Presented  for  "Proof"  against  Bankrupt 
Estate. — And  only  to  claims  presented  for  "proof"  against  the  bankrupt 
estate."  2 

Holden  v.  Stratton,  10  A.  B.  R.  788,  191  U.  S.  116:  "And  while  the  word 
'claim'  is  used  in  its  signification  of  the  demand  or  assertion  of  a  right  in 
subdivision  11  of  §  2,  in  respect  of  'all  claims  of  bankrupts  to  their  exemptions,' 
it  is  also  used  in  many  parts  of  the  act,  and,  as  we  think,  in  §  25,  as  referring 
to  debts  (which  by  subsection  11  of  §  1  includes  'any  debt,  demand  or  claim 
provable   in   bankruptcy')    presented   for   proof   against    estates    in    bankruptcy." 

Such  claims  are  reviewable  only  on  error  by  certiorari."-* 

§  2906.  And  Not  to  "Claims"  for  Exempt  Property. — And  does  not 
refer  to  claims  for  exempt  property ."^ 

§  2907.  Nor,  Probably,  to  "Claims"  for  Costs  and  Expenses  of 
Administration. — But  whether  a  claim  which  represents  expenses  or  costs 
of  administration  under  §  64  (b)  is  that  of  a  creditor  and  is  appealable 
under  §  25  (a)  is  a  question. 

Thus,  it  has  been  intimated,  in  an  obiter,  that  the  trustee's  expenses  for 
stenographer  and  attorneys  are  so  appealable ;  and,  on  the  other  hand,  it 
lias  been  held  directly  that  they  are  not  so  appealable.'*^ 

Obiter,  Gray  v.  Mercantile  Co.,  14  A.  B.  R.  784  (C.  C.  A.  N.  Dak.):  "Coun- 
sel have  proceeded  upon  the  assumption  that  a  claim  which  represents  expenses 
or  costs  of  administration  is  a  'debt  or  claim'  within  the  meaning  of  the  pro- 
vision before  quoted  granting  and  restricting  the  right  of  appeal.  The  as- 
sumption appears  to  be  sustained  by  the  Bankruptcy  Act,  notably  by  §  64b; 
but,  if  it  were  not,  that  would  be  another  reason  why  there  would  be  no  right 
of  appeal  from  the  allowance  or  rejection  of  any  of  the  claims  other  than  that 
of  Carroll,  which  is   not  of  that   character." 

Davidson  v.  Friedman,  15  A.  B.  R.  489,  140  Fed.  853  (C.  C.  A.  Ohio):  "This 
is  an  appeal  from  an  order  allowing  expenses  incurred  by  the  bankrupt's  trus- 
tee for  counsel  fees  in  the  realization  of  the  assets  of  the  estate  *  *  *  and  it  is 
insisted  that  the  order  appealed  from  is  appealable  under  §  24  (a)  [25  (a)], 
as  a  judgment  'allowing  a  debt  or  claim  of  $500  or  over,'  and  the  case  of  Pratt 

72.  In  re  Whitener,  5  A.  B.  R.  198,  105  Fed.  180  (C.  C.  A.  Tex.,  distin- 
guished in  Burow  v.  Grand  Lodge,  13  A.  B.  R.  545,  133  Fed.  708). 

73.  Davidson  v.  Friedman,  15  A.  B.  R.  489,  140  Fed.  853  (C.  C.  A.  Ohio), 
quoted  post,  §  2907. 

74.  Holden  v.  Stratton,  10  A.  B.  R.  788,  191  U.  S.  116;  also,  Holden  v.  Strat- 
ton, 14  A.  B.  R.  94,  198  U.  S.  202;  Ingram  v.  Wilson,  11  A.  B.  R.  194,  ]25  Fed. 
913  CC.  C.  A.  Iowa);  instance,  Lipman  v.  Stein,  14  A.  B.  R.  30,  134  Fed.  235 
(C.  C.  A. -Pa.);  instance,  In  re  Kane,  11  A.  B.  R.  333,  127  Fed.  552  (C.  C.  A. 
Ills.).  But  see,  Steele  v.  Buel,  5  A.  B.  R.  166,  104  Fed.  968  (C.  C.  A    Iowa) 

75.  Holden  v.  Stratton,  10  A.  B.  R.  788,  191  U.  S.  116,  quoted  ante,  §  2905, 
Steele  v.  Buel,  5  A.  B.  R.  166,  104  Fed.  968  (C.  C.  A.  Iowa). 

76.  In  re  Curtis,  4  A.  B.  R.  17,  100  Fed.  784  (C.  C.  A    Ills  ). 


^2911  REVIEW    IN    CIRCUIT    COURT    OF    APPEALS.  1705 

V.  Bothe  is  cited.  Pratt  v.  Bothe  involved  a  claim  which  was  a  debt  against  the 
bankrupt  for  legal  services  before  and  after  adjudication.  The  debt  was 
proven  as  such  and  priority  asserted  under  §  60d  of  the  Act.  We  entertained 
•an  appeal,  though  no  question  was  made,  upon  the  ground  that  it  was  an  appeal 
from  a  judgment  disallowing  a  claim  or  debt  in  excess  of  $500.  It  was  not 
a  claim  or  expense  or  debt  incurred  by  the  trustee  in  course  of  administra- 
tion. It  had  its  foundation  in  a  contract  antecedent  to  bankruptcy  and  was  in 
every  sense  a  debt  presented  for  proof  against  the  estate. 

"The  matter  involved  in  the  present  appeal  is  an  expense  incurred  by  the 
trustee  in  the  course  of  his  administration.  It  was  not  a  debt  against  the 
bankrupt    and   had    no    existence    before    adjudication." 

It  has  also  been  held,  however,  that  the  attorneys'  fees  of  the  petitioning 
creditors  are  so  appealable.'" 

Probably  the  rule  of  Davidson  v.  Friedman  is  based  upon  the  better 
reasoning. 

§  2908.  Nor  to  "Claims"  of  Strangers  to  Property  in  Trustee's 
Possession,  nor  of  Trustee  to  Property  in  Strangers'  Hands. — Xor 

does  it  refer  to  claims  of  third  parties  to  property  in  the  trustee's  posses- 
sion, nor  to  claims  of  the  trustee  against  third  parties  for  the  surrender  of 
property  in  their  possession.'^ 

§  2909.  Disallowance  of  Claim  because  Preference  Not  Sur- 
rendered, Appealable. — Orders  disallowing  claims  for  failure  to  sur- 
render preferences  are  appealable.'^ 

§  2910.  Rejection  or  Allowance  of  Set-OfF  Appealable. — The  re- 
jection or  allowance  of  a  set-off  is  appealable. ^*^ 

§  2911.  No  Appeal  in  Bankruptcy  Proceedings  Proper  Except  in 
Three  Cases  of  §  25  (a)  Mentioned. — And  appeals  may  not  be  taken 
in  bankruptcy  proceedings  proper  in  any  other  cases  than  those  limited  in  § 
25  (a)  ;  review  can  be  had  only  by  petition  to  revise.^^ 

77.  Compare  appeal  of  prepaid  bankrupt's  attorney  fees,  Pratt  v.  Bothe,  12 
A.  B.  R.  529,  130  Fed.  670   (C.  C.  A.  Mich.). 

78.  In  re  Whitener,  5  A.  B.  R.  198.  105  Fed.  180  (C.  C.  A.  Tex.);  In  re  Abra- 
I-iam,  2  A.  B.  R.  289,  93  Fed.  767  (C.  C.  A.  Ala.,  reversed,  on  other  grounds, 
sub  nom.  Bryan  v.  Bernheimer). 

79.  Livingston  v.  Heinman,  10  A.  B.  R.  39  (C.  C.  A.  Ohio);  In  re  Jourdan, 
7  A.  B.  R.  186  (C.  C.  A.  Mass.). 

80.  Western  Tie  and  Timber  Co.  v.  Brown,  13  A.  B.  R.  447,  196  U.  S.  502 
(reversing  12  A.  B.  R.  Ill),  where  the  court  sustained  the  right  to  appeal 
from  the  Circuit  Court  of  Appeals  to  the  Supreme  Court  under  §  25  (b)  (l) 
giving  such  right  in  cases  where  a  claim  appealable  under  §  25  (a)  amounts 
to  $2000  or  over,  the  court  saying:  "It  clearly  appears  from  the  record  that  in 
the  claim  filed  on  behalf  of  the  tie  company  there  was  embodied,  as  an  integral 
part  thereof,  as  a  proper  credit  or  set-off,  the  sum  retained  from  the  wages  of 
employees  for  supplies  furnished  by  the  bankrupt,  and  the  rejection  of  the 
claim  was  based  upon  the   denial  of  the  right  to  set-off." 

81.  Fisher  v.  Cushman,  4  A.  B.  R.  646,  103  Fed.  860  (C.  C.  A.  Mass.);  obiter, 
Goodman  v.  Brenner,  6  A.  B.  R.  471,  109  Fed.  481  (C.  C.  A.  La.);  contra,  Steele 
v.  Buel,  5  A.  B.  R.  165,  104  Fed.  968  (C.  C.  A.  Iowa). 


1706  REMINGTON  ON   BANKRUPTCY.  ^  2913 

Holden  v.  Stratton,  10  A.  B.  R.  788,  191  U.  S.  115:  "This  case  (refusal  of 
exemptions)  was  not  taken  to  the  Court  of  Appeals  by  appeal,  as  in  equity 
cases,  to  be  re-examined  on  the  facts  as  well  as,  the  law,  nor  could  it  have  been, 
for  it  was  not  one  of  the  cases  enumerated  in  §  25a." 

Bank  v.  Title  &  Trust  Co.,  14  A.  B.  R.  105,  198  U.  S.  280:  "If  the  pro- 
ceedings in  the  District  Court  (adjlxdication  as  to  validity  of  lien  on  property 
taken  summarily  from  adverse  claimants  over  protest)  was  a  proceeding  in 
bankruptcy  and  not  an  independent  suit,  no  appeal  lay  to  the  Circuit  Court 
of  Appeals,  and  the  jurisdiction  of  that  court  was  confined  to  revision  in  matter 
of  law  'on  due  notice  and  petition'  under  clause  b  of  §  24." 

Ingram  v.  Wilson,  11  A.  B.  R.  19-4,  125  Fed.  913  (C.^C.  A.  Iowa):  "We  are 
of  opinion,  however,  that  the  order  in  question  (sale  of  exempt  real  estate)  is  an 
order  made  in  the  course  of  a  bankruptcy  proceedings,  which  this  court  is  em- 
powered to  revise  on  a  petition  for  review  by  virtue  of  §  24  of  the  Bankruptcy 
Act.  It  is  not  one  of  those  cases  in  which  an  appeal  in  the  ordinary  form  is  ex- 
pressly authorized  by  §  25  of  the  Bankrupt  Act.  For  that  reason  we  are  con- 
strained to  hold  that  it  is  reviewable  by  an  original  petition  for  review." 


Appeals  in  Controversies  Arising  in  Bankruptcy  Proceedings. 

§  2912.  Appeals  in  "Controversies  Arising  in  Bankruptcy  Pro- 
ceedings."— Appeals  may  be  taken  to  the  circuit  court  of  appeals  in  "con- 
troversies arising  in  bankruptcy  proceedings,"  as  distinguished  from 
'"bankruptcy  proceedings"  themselves,  from  courts  of.  bankruptcy  from 
which  it  has  appellate  jurisdiction  in  other  cases. ^- 

That  is  to  say,  whilst  appeals  in  bankruptcy  proceedings  proper  are  re- 
stricted to  the  cases  specifically  allow^ed  by  the  provisions  of  the  Bank- 
ruptcy Act  itself,  in  all  other  cases  where  controversies  arise  in  the  bank- 
ruptcy proceedings,  the  right  of  appeal  is  the  same  as  if  the  case  had  not 
arisen- out  of  a  bankruptcy. ^^ 

82.  Bankr.  Act,  §  24  (a):  "*  *  *  the  Circuit  Court  of  Appeals  of  the  Unite.-l 
States  *  *  *  in  vacation  in  chambers  during  their  respective  terms,  as  now 
or  as  they  may  be  hereafter  held,  are  hereby  investigated  with  appellate  juris- 
diction of  controversies  arising  in  bankruptcy  proceedings  from  the  courts  of 
bankruptcy   from  which   they  have,  appellate  jurisdiction   in   other   cases." 

Inferentially,  In  re  Columbia  Real  Estate  Co.,  7  A.  B.  R.  444,  112  Fed.  645 
(C.  C.  A.  Ind.);  appeals  and  reviews  in  Indian  Territory,  In  re  Blair,  5  A.  B.  R. 
792,    106   Fed.   662    (C.    C.   A.    Ind.   Terr.). 

"Within  their  jurisdiction"  has  reference  to  existing  appellate  jurisdiction 
and  does  not  operate  to  extend  it.  In  re  Blair,  5  A.  B.  R.  793,  106  Fed.  662 
(C.  C.  A.  Ind.  Terr.). 

Even  if  not  raised  in  argument,  the  court  may  consider  the  question  of  its 
appellate  jurisdiction.  In  re  Columbia  Real  Estate  Co.,  7  A.  B.  R.  444,  112  Fed. 
645  (C.  C.  A.  Ind.). 

83.  Hutchinson  v.  Otis,  190  U.  S.  552,  10  A.  B.  R.  135;  compare,  Hutchin- 
son V.  Otis,  10  A.  B.  R.  275  (C.  C.  A.  Mass.);  Burleigh  v.  Foreman,  125  Fed. 
217,  11  A.  B.  R.  74,  12  A.  B.  R.  88  (C.  C.  A.  Mass.);  In  re  McKenzie,  15  A. 
B.  R.  681,  142  Fed.  383  (C.  C.  A.  Ark.);  In  re  Mueller  Tr.,  14  A.  B.  R.  256, 
135  Fed.  711  (C.  C.  A.  Ky.). 


§   2912  REVIEW    IN    CIRCUIT    COURT    OF    APPEALS.  1707 

Hewitt  V.  Berlin  Machine  Co.,  11  A.  B.  R.  709,  194  U.  S.  296:  "And  as  the 
Berlin  Machine  Works  asserted  title  to  the  property  in  the  possession  of  the 
trustee  by  an  intervention  raising  a  distinct  and  separable  issue,  the  contro- 
versy may  be  treated  as  one  of  those  'controversies  arising  in  bankruptcy 
proceedings'  over  which  the  Circuit  Court  of  Appeals  could,  under  §  24a,  exer- 
cise appellate  jurisdiction  as  in  other  cases.  Section  25a  relates  to  appeals  from 
judgments  in  certain  enumerated  steps  in  bankruptcy  proceedings,  in  respect  of 
which  special  provision  therefor  was  required  (Holden  v.  Stratton,  191  U.  S. 
115,  10  Am.  B.  R.  786),  while  §  24a  relates  to  controversies  arising  in  bankruptcy 
proceedings  in  the  exercise  by  the  bankruptcy  courts  of  the  jurisdiction  vested 
in  them  at  law  and  in  equity  by  §  2,  to  settle  the  estates  of  bankrupts,  and  to 
determine  controversies  in  relation  thereto." 

Dodge  V.  Norlin,  13  A.  B.  R.  176,  133  Fed.  363  (C.  C.  A.  Colo.):  "Under  the 
judiciary  act  of  March  3,  1891,  the  Circuit  Courts  of  Appeal  had  'jurisdiction 
to  review  by  appeal  or  by  writ  of  error  final  decisions  in  the  District  Court 
and  the  existing  Circuit  Courts  in  all  cases  other  than  those  provided  for  in  the 
preceding  section  of  this  Act,  unless  otherwise  provided  by  law.     *     *     * 

"The  case  here  under  consideration  was  not  provided  for  in  the  preceding 
section  of  the  Act  or  in  any  other  way  than  in  §  6.  The  decision  of  the  Dis- 
trict Court  that  the  lien  by  mortgage  claimed  by  the  appellant  could  not  be 
enforced  against  the  trustee  who  had  seized  the  property  which  constituted  the 
security  for  his  debt  was  a  final  decision.  It  rendered  the  question  of  the  mort- 
gagee's right  to  his  security  res  adjudicata.  It  finally  determined  a  separate, 
collateral  controversy  distinct  from  the  general  subject  of  litigation  in  the 
proceeding  in  bankruptcy.  *  *  *  If  this  controversy  had  arisen  in  a  Federal 
court  when  it  was  not  sitting  in  bankruptcy,  the  final  decision  of  it  would  have 
been  reviewable  in  this  court  by  writ  of  error  or  appeal.  Section  25a  vests  the 
Courts  of  Appeal  with  appellate  jurisdiction  of  controversies  arising  in  bank- 
ruptcy proceedings  of  which  they  have  jurisdiction  in  other  cases.  As  this  court 
has  appellate  jurisdiction  of  this  controversy  in  other  cases  in  which  it  might 
be  presented  in  a  Federal  court,  it  has  such  jurisdiction  when  it  arises  in  pro- 
ceedings in  bankruptcy." 

In  re  First  National  Bk.  of  Canton,  14  A.  B.  R.  180,  135  Fed.  62  (C.  C.  A. 
Ohio) :  "This  is  an  appeal  from  an  order  of  the  District  Court,  sitting  jn  bank- 
ruptcy, disallowing  a  mortgage  lien  claimed  by  the  First  National  Bank  of 
Canton,  Ohio,  upon  a  stock  of  merchandise  and  certain  store  fixtures  of  the 
bankrupt  Martin  K.  Purdy.     *     *     * 

"This  may  be  properly  regarded  as  a  controversy  arising  out  of  the  settlement 
of  the  bankrupt's  estate  and  the  appeal  to  this  court  as  one  admissible  under 
§  24a  of  the  Bankruptcy  Law." 

"Obiter,  Delta  Nat'l  Bk.  v.  Easterbrook,  13  A.  B.  R.  340  (C.  C.  A.  Tex.):  "In 
the  lower  court  this  was  an  action  at  law  for  the  specific  recovery  of  personal 
property,  and  was  a  controversy  arising  in  bankruptcy  proceedings,  of  which 
the  lower  court  had  jurisdiction  under  §  70  (e)  as  amended.  *  *  *  From  the 
final  judgment  rendered  in  the  case  no  appeal  lies  under  §  25  *  *  *  and,  if 
this  court  had  jurisdiction  to  review  the  same,  the  authority  must  be  found 
under  §  24a  *  *  *  ^^d  in  the  appellate  jurisdiction  of  the  Circuit  Courts  of 
Appeal,  as  granted  by  the  Act  of  1891,  which  jurisdiction  is  not  restricted  by 
the  Bankruptcy  Law;  and  therefore  decrees  in  equity  and  judgments  at  law, 
although  in  controversies  arising  in  bankruptcy  proceedings,  may  be  revised  by 
this  court." 


1708  REIMINGTON  ON  BANKRUPTCY.  §  2915 

§  2913.  Appeal  a  Matter  of  Right,  Not  to  Be  Enlarged  nor  Re- 
stricted by  Court. — An  appeal  is  a  matter  of  right,  given  by  statute,  and 
can  neither  be  restricted  nor  enlarged  by  the  court.^^ 

§  2914.  Under  §  24  (a)  Both  Law  and  Fact  Reviewed. — Under  § 
24  (b)  the  circuit  court  of  appeals  revises  the  action  of  the  district  court 
only  in  matters  of  law.^^ 

But  under  §  24  (a),  the  circuit  court  of  appeals  reviews  the  facts  as  well 
as  the  law.^*^ 

§  2915.  Litigant  Has  Option,  in  Proper  Case,  Either  to  Appeal  or 
to  Petition  for  Revision. — A  litigant  has  the  option,  in  a  proper  case, 
to  review  a  decision  by  appeal  or  by  petition  for  revision  as  matter  of  law. 
This  appellate  jurisdiction  is  not  excluded  nor  revoked  by  the  provision  of 
§  25  (a),  which  grants  jurisdiction  over  three  specified  classes  of  cases  and 
limits  the  time  for  invoking  the  appeal  to  ten  days,  nor  by  §  24  (b),  which 
vests  the  power  of  supervision  and  revision  in  matter  of  law  in  the  court 
of  appeals.s'^ 

Dodge  V.  Norlin,  13  A.  B.  R.  176,  133  Fed.  363  (C.  C.  A.  Colo.):  "Nor  is  there 
anything  in  the  grant  by  section  24b  of  the  power  to  revise  and  superintend  in 
matter  of  law  the  proceedings  of  the  inferior  courts  of  bankruptcy  which  in  any 
way  afifects  or  limits  the  general  appellate  jurisdiction  vested  by  the  sections 
of  the  law  which  have  been  considered.  The  Act  of  1898  does  not  grant  the 
appellate  and  the  revisory  jurisdiction  in  the  alternative.  It  does  not  give  to 
disappointed  litigants  the  right  of  appeal  or  the  right  of  revision  in  matter  of 
law.  It  grants  the  right  of  appeal  and  the  right  of  superintendence  and  re- 
vision in  matter  of  law  only.  It  gives  both  rights  freely  and  without  limitation. 
The  two  grants  are  not  inconsistent,  and  on  familiar  principles  both  must  stand, 
and  in  a  proper  case  either  may  be  invoked. 

"Any  other  construction  of  the  bankruptcy  law  would-  deprive  litigants  in  the 
courts  of  bankruptcy  of  a  review  of  the  decisions  of  the  most  important  con- 
troversies determined  by  those  courts,  of  controversies  between  the  trustee 
and  third  parties  over  the  title  to,  and  the  liens  upon,  the  alleged  property  of  the 
estate.  A  revision  as  a  matter  of  law  is  not  equivalent  to  nor  is  it  adequate  to 
take  the  place  of  an  appeal.  Many  controversies -of  the  nature  of  that  here 
under  consideration  arise  which  involve  large  interests  in  which  there  is  little 
doubt  of  the  law,  but  in  which  the  correctness  of  the  finding  of  facts  is  both 
crucial  and  doubtful.     The  Act  plainly  declares  that  the  final  decisions  of  such 

84.  Lockman  v.  Lang,  12  A.  B.  R.  497,  132  Fed.  1  (C.  C.  A.  Colo.);  In  re 
Abraham,  2  A.  B.  R.  266,  93  Fed.  784  (C.  C.  A.  Ala.);  In  re  Whitener,  5  A.  B. 
R.  198,  105  Fed.  180   (C.  C.  A.  Tex.). 

But  compare  Columbia  Iron  Wks.  v.  Nat'I  Lead  Co.,  11  A.  B.  R.  340,  127 
Fed.  99  (C  C.  A.  Mich.),  where  the  court  seems  to  have  refused  to  dismiss  an 
appeal  "taken"  after  the  expiration  of  the  ten  days,  "taking"'  not  being  perfected 
until  bond  and  citation. 

See  ante,  §  2891. 

85.  See   post,   §    2937. 

86.  See    ante,    §    2882. 

87.  See  ante,  §§  2883,  2884. 


§    2918  REVIEW    IX    CIRCUIT    COURT    OE    APPEALS.  1709 

controversies  may  be  reviewed  by  appeals,  and  no  persuasive  reasons  convince 
that  this  declaration  should  not  have  its  full  effect." 

Inferentially,  Printing  Co.  v.  Brew.  Co.,  4  A.  B.  R.  183,  101  Fed.  700  (C.  C.  A. 
Ky.):  "If  the  petitioner  had  desired  a  review  of  the  question  of  the  allowance 
of  his  claim  upon  both  law  and  fact,  he  should  have  appealed." 

§  2916.  May  Treat  "Appeals"  as  Petitions  for  Revision.— The  re- 
viewing court  may  (where  only  questions  of  law  are  presented )  treat  pro- 
ceedings denominated  "appeals"  as  merely  error  proceedings  for  reversal 
of  the  judgment  below,  and  may  hear  the  case  on  the  record  already  made 
and  not  de  novo.^^ 

§  2917.  But  Not  Where  Questions  All  of  Fact. — But  will  not  so  treat 
them  where  the  questions  are  all  questions  of  fact,  and  there  is  no  specific 
question  of  law.^^ 

§  2918.  Simultaneous  Appeal  and  Petition  for  Review. — Appeal 
and  petition  for  review  or  writ  of  error  may  be  prosecuted  simultaneously 
to  review  the  same  adjudication,  where  the  party  is  in  doubt  as  to  liis 
proper  remedy,  and  the  pendency  of  one  will  not  nullify  the  other.'-^*^ 

Lockman  v.  Lang,  12  A.  B.  R.  497,  128  Fed.  279  (C.  C.  A.  Colo.):  "The  prac- 
tice of  taking  an  appeal  and  a  writ  of  error  to  review  the  same  adjudication  is 
not  only  permissible,  but  commendable,  in  cases  in  which  counsel  have  just 
reason  to  doubt  which  is  the  proper  proceeding  to  give  jurisdiction  to  the  ap- 
pellate court.  In  such  cases  the  reviewing  court  will  consider  both  proceedings, 
will  dismiss  that  one  which  is  ineffective,  and  will  review  the  rulings  of  the 
court  below  in  accordance  with  the  rules  of  the  method  applicable  to  the  nature 
of  the  case  before  it." 

Fisher  v.  Cushman,  4  A.  B.  R.  646,  103  Fed.  860  (C.  C.  A.  Mass.):  "Never- 
theless *  *  *  the  fact  that  an  appeal  was  taken  and  a  petition  also  filed  does 
not  defeat  the  right  of  the  party  moving  this  court  to  have  the  merits  of  the 
controversj'  adjudicated  bj-  us.  They  do  not  neutralize  each  other,  and  the 
only  result  is  that  the  appeal  must  be  dismissed,  while  the  court  must  proceed 
to   the   adjudication   of   the   merits   in   Ida    C.    Fisher,   et   al,    Petitioners,   which 

88.  Chesapeake  Shoe  Co.  v.  Seldner,  10  A.  B.  R.  466,  122  Fed.  593  (C.  C.  A. 
Va.);  In  re  Abraham  (Bernheimer  v.  Bryan),  2  A.  B.  R..  266,  93  Fed.  783,  re- 
versed by  Sup.  Ct.,  on  other  grounds,  in  5  A.  B.  R.  623,  isi  U.  S.  188.  Compare, 
to.  similar  effect,  In  re  Russell  &  Birkett,  3  A.  B.  R.  658  (C.  C.  A.  N.  Y.);  In 
re  Worcester  Co.,  4  A.  B.  R.  496,  102  Fed.  808  (C.  C.  A.  Mass.) ;  Fisher  v.  Cush- 
man, 4  A.  B.  R.  646,  103  F'ed.  860  (C.  C.  A.  Mass.);  Steiner  v.  Marshall,  15  A.  B. 
R.  487,  140  Fed.  710  (C.  C.  A.  Md.) ;  contra,  Dickas  v.  Barnes,  Tr.,  15  A.  B.  R. 
566,  140  Fed.  849  (C.  C.  A.  Ohio). 

89.  In  re  Whitener,  5  A.  B.  R.  198,  105  Fed.  188  (C.  C.  A.  Tex.);  Steiner 
V.  ^larshall.  15  A.  B.  R.  487,  140  Fed.  710  (C.  C.  A.  Md.). 

90.  In  re  Worcester  Co.,  4  A.  B.  R.  496,  102  Fed.  808  (C.  C.  A.  Mass.); 
In  re  Jourdan,  7  A.  B.  R.  186,  11  Fed.  726  (C.  C.  A.  Mass.);  Hutchinson  v. 
Leroy,  8  A.  B.  R.  21,  113  Fed.  202  (C.  C.  A.  Mass.);  In  re  Osborne,  8  A.  B.  R. 
168,  115  Fed.  1  (C.  C.  A.  Mass.);  Osborne  v.  Perkins,  7  A.  B.  R.  250,  112  Fed. 
127  (C.  C.  A.  Mass.);  obiter,  impliedly,  Steiner  v.  Marshall,  15  A.  B.  R.  487, 
140  Fed.  710  (C.  C.  A.  Md.);  instance,  Mason  v.  Wolkowich,  17  A.  B.  R.  714. 
150  Fed.  699  (C.  C.  A.  Mass.);  instance,  Union  Nat.  Bk.  v.  Neill,  17  A.  B.  R.  853, 
841,  149  Fed.  711,  720  (C.  C.  A.  Tex.).    ' 


1710  REMINGTON   ON    BANKRUPTCY.  §    2920 

petition,  on  the  record  before  us,  involves  onlj^  a  'matter  of  law,'  as  required  by 
§  24b  of  the  Bankrupt  Act.'' 

Contra,  In  re  Mueller,  Tr.,  14  A.  B.  R.  257,  135  Fed.  711  (C.  C.  A.  Ky.) : 
"There  is  no  reason  to  suppose  that  one  may  elect  whether  he  will  bring  up  the 
order  or  judgment  which  he  wishes  to  have  reversed  by  appeal  or  by  a  petition 
for  review. 

"These  remedies  are  exclusive  of  each  other.  That  which  inay  come  here 
by  appeal,  can  not  come  here  for  review.  Otherwise  the  distinction  which  the 
Act  recognizes  will  be  ignored. 

"Neither  is  there  any  reason  for  supposing  that  an  order  or  judgment  may  be 
appealed  when  questions  of  fact  are  to  be  considered  and  reviewed  upon  peti- 
tion if  only  a  question  of  law  is  involved. 

"The  distinction  between  cases  appealable  and  cases  reviewable  lies  deeper 
and  turns  upon  the  character  of  case  or  question." 

Contra,  Davidson  v.  Friedman,  15  A.  B.  R.  490,  140  Fed.  853  (C.  C.  A.  Ohio): 
"It  is  also  insisted  that  we  shall  treat  the  appeal  as  a  petition  for  review. 
These  remedies  are  exclusive  of  each  other  and  there  is  no  more  reason  for 
treating  an  appeal  as  a  petition  for  review  than  there  would  be  for  treating  an 
appeal  as  a  writ  of  error  or  vice  versa." 

Doubtless  the  appeal  has  the  precedence,  and  if  appeal  will  lie,  the  proper 
practice  would  be  to  dismiss  the  petition  for  revision.  This  is  so  for  the 
obvious  reason  that  the  appeal,  if  well  taken,  has  already  vacated  the  or- 
der, so  there  is  nothing  to  review. 

§  2919.  Single  Assignment  of  Errors  Sufficient  Where  Appeal  and 
Error  Simultaneously  Prosecuted. — Where  appeal  and  writ  of  error, 
are  prosecuted  simultaneously  to  review  the  same  alleged  errors,  a  single 
assignment  of  errors  is  all  that  is  necessary. ^^ 

§  2920.  Appeals  in  "Controversies"  Only  Allowable  in  Cases 
within  Act  of  Congress  Establishing  Circuit  Courts  of  Appeal. — 

Appeals  in  controversies  arising  in  bankruptcy  proceedings  are  allowed  in 
cases  that  come  within  the  provisions  of  the  act  of  Congress  establishing 
the  circuit  court  of  appeals   (26  Stat.  826-828),  and  only  in  such  cases. ^^ 

In  re  Columbia  Real  Estate  Co.,  7  A.  B.  R.  441,  112  Fed.  645  (C.  C.  A.  Ind.): 
"The  general  provision  for  appeals,  however,  is  coiitained  in  §  24a,  which  in- 
vests the  Circuit  Court  of  Appeals  'with  appellate  jurisdiction  of  controversies 
arising  in  bankruptcy  proceedings  from  the  courts  of  bankruptcy  from  which 
they  have  appellate  jurisdiction  in  other  cases;'  and  §  6  of  the  act  creating  the 
Circuit  Court  of  Appeals  (26  Stat.  826-828)  referred  to,  confers  appellate  juris- 
diction 'to  review  by  appeal  or  by  writ  of  error  final  decisions  in.  the  district 
courts'  in  all  cases  other  than  those  which  are  reviewable  by  the  Supreme  Court 
pursuant  to  section  5  of  the  same  act.  The  right  to  review  this  order,  therefore, 
rests   on   the  inquiry  whether  it   constitutes   a   final   order   or   decree,   within   the 

91.  Lookman  v.  Lang,  3  2  A.  B.  R.  497,  128  Fed  279  (C.  C.  A.  Colo.). 
"92.  Inferentially,  In  re  McKenzie,  15  A.  B.  R.  681,  142  Fed.  383  (C.  C.  A. 
Ark.);  impliedly,  Delta  Nat'l  Bk.  z'.  Easterbrook,  13  A.  B.  R.  340  (C.  C.  A. 
Tex.);  Stelling  Bros.  Co.  v.  Jones  Lumber  Co.,  8  A.  B.  R.  529,  116  "Fed.  261 
(C.  C.  A.  Wis.);  inferentially,  Walter  Scott  v.  Wilson,  8  A.  B.  R.  349,  115 
Fed.  284  (C.  C.  A.  Ills.). 


§    2921  REVIEW    IN    CIRCUIT    COURT    OF    APPEALS.  1711 

meaning  of  the  latter  provision,  and  the  general  rule  is  well  settled  that  a  de- 
nial of  the  right  to  intervene  is  not  such  final  decision,  and  not  appealable." 

Impliedly,  Dodge  v.  Xorlin,  13  A.  B.  R.  176,  133  Fed.  363  (C.  C.  A.  Colo.): 
"The  purpose  of  Congress  in  the  enactment  of  the  judiciary  act  of  1891,  and  the 
effect  accomplished  by  that  law,  were  to  provide  an  opportunity  for  a  review 
either  in  the  Supreme  Court  or  in  the  Circuit  Court  of  Appeals  of  the  final  de- 
cisions by  the  Circuit  Courts  and  by  the  District  Courts  of  all  the  controversies 
which  they  might  determine.  It  was  not,  in  our  opinion,  the  purpose  of  Con- 
gress to  strike  down  any  portion  of  this  grant  or  to  impair  in  any  way  the 
appellate  jurisdiction  thus  given  by  the  enactment  of  the  bankruptcy  law.  On 
the  other  hand,  the  provisions  of  the  Bankrupt  Act  clearly  show  that  it  intended 
thereby  to  preserve  this  jurisdiction  over  the  controversies  to  which  it  had  al- 
ready attached  in  other  cases,  and  to  supplement  it  with  the  grant  of  authority 
to  review^  the  decisions  of  controversies  which  had  not  theretofore  been  within 
that  jurisdiction.  Before  the  passage  of  the  Bankrupt  Act  the  Courts  of  Appeals 
had  appellate  jurisdiction  of  controversies  arising  in  the  Federal  courts  over  the 
title  to  and  liens  upon  the  property  of  insolvents  who  might  become  bankrupts. 
Congress  provided  by  §  24a  that  the  Courts  of  Appeals  should  still  have  juris- 
diction over  those  controversies  when  they  arose  in  bankruptcy  proceedings. 
By  §  25a  it  granted  to  the  Courts  of  Appeals  additional  jurisdiction  which  be- 
fore the  enactment  of  the  bankrupt  law  they  could  not  exercise,  and  provided 
a  different  time  within  which  this  jurisdiction  might  be  invoked,  to  the  end  that 
the  proceedings  in  bankruptcy  might  not  be  unduly  delayed.  But  there  is  noth- 
ing in  the  provisions  of  §  25a  which  excludes,  revokes,  or  diminishes  the  general 
appellate  jurisdiction  granted  by  the  previous  section  over  controversies  within 
the  jurisdiction  of  the  Courts  of  Appeals  before  the  bankruptcy  law  was  passed. 
The  extent  of  its  effect  is  to  grant  some  additional  jurisdiction,  and  to  restrict 
to  10  days  the  time  within  which  the  jurisdiction  of  the  Court  of  Appeals  may  be 
invoked  in  the  three  classes  of  cases  there  specified. 

"Nor  is  there  anything  in  the  grant  by  §  2-lb  of  the  power  to  revise  and 
superintend  in  matter  of  law  the  proceedings  of  the  inferior  courts  of  bank- 
ruptcy which  in  any  way  affects  or  limits  the  general  appellate  jurisdiction 
vested  by  the  sections  of  the  law  which  have  been  considered.  The  act  of  1898 
does  not  grant  the  appellate  and  the  revisory  jurisdiction  in  the  alternative.  It 
does  not  give  to  disappointed  litigants  the  right  of  appeal  or  the  right  of  revision 
in  matter  of  law.  It  grants  the  right  of  appeal  and  the  right  of  superintendence 
and  revision  in  matter  of  law  only.  It  gives  both  rights  freely  and  without 
limitation.  The  two  grants  are  not  inconsistent,  and  on  familiar  principles  both 
must  stand,  and  in  a  proper  case  either  maj^  be  invoked." 

§  2921.  Decree  in  Equity  Not  Reviewable  by  Writ  of  Error,  nor 
Judgment  at  Law  by  Appeal. — In  controversies  arising  in  bankruptcy 
proceedings,  a  decree  in  equity  cannot  be  reviewed  on  the  facts  by  writ  of 
error  nor  a  judgment  at  law  by  appeal. ^■'^ 

Thus,  suits  at  law  to  recover  specific  personal  property,  preferentially 
conveyed,  are  not  appealable,  but  reviewable  only  by  petition  to  review. ^^ 

93.  Delta  Xat'l  Bank  v.  Easterbrook,  13  A.  B.  R.  340  (C.  C.  A.  Tex.),  citing 
the  following  cases,  Muhlenberg  County  v.  Dyer,  65  Fed.  634;  City  of  Wilming- 
ton V.  Ricand,  90  Fed.  213;  DeLemos  v.  U.  S.,  107  Fed.  127;  Highland  Boy 
Min.  Co.  V.  Strickley,  116  Fed.  855.  But  compare.  Dodge  v.  Xorlin,  13  A.'  B. 
R.   176,   133   Fed.   363    (C.   C.   A.   Colo.). 

94.  Delta  Xat'l   Bk.  v.  Easterbrook,  13  A.  B.   R.  340   (C.   C.  A.  Tex.). 


1712  REMINGTON  ON  BANKRUPTCY.  §  2923 

Conversely,  suits  in  equity  to  set  aside  fraudulent  or  preferential  trans- 
fers are  appealable,  and  not  reviewable  by  petition  for  revision. ^^ 

Doroshow  v.  Ott,  14  A.  B.  R.  39,  134  Fed.  740  (C.  C.  A.  N.  J.):  "We  have  no 
difficulty  in  saying  that  the  petitioner,  in  the  case  at  bar,  has  not  presented  a 
matter  reviewable  in  this  court  under  §  24b  of  the  bankrupt  law.  The  suit 
brought  by  the  trustee  against  the.  petitioner  in  the  District  Court,  was  specially 
authorized  by  the  amendment  of  the  Bankrupt  Act  of  1903,  above  referred  to. 
It  is  true,  the  District  Court  was  the  court  of  bankruptcy  having  jurisdiction 
of  the  bankrupt's  estate,  which  the  complainant,  as  trustee,  was  administering, 
but  the  suit  in  equity  instituted  by  him  was  none  the  less  an  independent  suit, 
and  incapable  of  being  characterized  as  a  proceeding  in  bankruptcy,  within  the 
meaning  of  §  24b  of  the  Bankrupt  Act.  We  cannot  here  and  now,  upon  this 
petition,  consider  the  specifications  of  error  made  b}^  the  petitioner  to  the  in- 
terlocutory decree  of  that  court.  The  orders  and  decrees  of  the  District  Court 
in  that  suit,  whether  interlocutory  or  final,  can  only  be  reviewed  in  this  court 
upon  appeal  regularly  taken." 

§  2922.  Must  Be  "Final"  Order.— But  the  order  sought  to  be  appealed 
from  must  be  a  final  order. 

Thus,  the  dismissal  of  a  petition  for  intervention  to  contest  an  adjudica- 
tion, filed,  not  by  a  creditor,  but  by  a  mere  lienholder,  is  not  a  final  order 
on  the  merits  and  not  appealable ;^'^  nor  are  interlocutory  orders  (injunc- 
tion) in  plenary  suits  by  trustees.^" 

Mere  orders  of  confirmation  or  disapproval  of  referees'  or  masters' 
reports  are  not  final,  and  hence  not  appealable. 

Walter  Scott  &  Co.  v.  Wilson,  8  A.  B.  R.  349,  115  Fed.  284  (C.  C.  A.  Ills.): 
"We  are,  however,  of  opinion  that  the  appeal  is  premature.  There  was  no  final 
decree  from  which  an  appeal  could  be  taken.  The  order  complained  of  is  not 
a  final  decree  adjudging  the  appellant's  right  and  dismissing  its  bill  or  petition. 
It  simply  overrules  the  exceptions  to  the  master's  report  and  approves  of  the 
report.  It  neither  determines  the  appellant's  right  nor  disposes  of  its  suit.  It 
still  remains  within  the  power  of  the  court  below  to  set  aside  that  report,  to 
refer  the  case,  and  to  direct  further  evidence  to  be  taken.  'A  confirmed  report, 
•at  best,  stands  in  the  same  relation  to  a  decree  as  a  verdict  to  a  judgment.  It 
may  be  almost  certain  that  the  decree  will  follow  it,  but  it  cannot  be  enforced 
until  the  decree  is  entered.'     Kingsbury  v.  Kingsbury,  20  ]\Iich.  212." 

§  2923.  Validity,  Priority,  etc.,  of  Liens  Appealable  as  "Contro- 
versies."— Judgments  determining  the  extent,  validity  or  priority  of  mort- 

95.  In  re  Jacobs.  3  A.  B.  R.  671,  99  Fed.  539   (C.  C.  A.  Mo.). 

Trials  without  jury:  Findings  were  not  reviewable  under  the  law  of  1867. 
Packer  v.  Whit,   1  A.   B.   R.  621   (C.   C.  A.  Mass.). 

96.  In  re  Columbia  Real  Estate  Co.;  7  A.  B.  R.  441,  112  Fed.  645  (C.  C.  A. 
Ind.).  Compare,  analogously  (appeal  in  bankruptcy  proceedings  proper), 
Goodman  v.  Brenner,  6  A.  B.   R.  470,  109   Fed.  481   (C.  C.  A.   La.). 

97.  Doroshow  v.  Ott,  14  A.  B.  R.  34,  134  Fed.  740  (C.  C.  A.  N.  J.). 


§  2926  REVIEW  IN  CIRCUIT  COURT  OF  APPEALS.  1713 

gages,  or  other  alleged  liens  on  the  bankrupt's  q,ssets,  are  "controversies 
arising  in  bankruptcy  proceedings,"  and  are  appealable.'''^ 

Dodge  z\  Xorlin,  13  A.  B.  R.  176.  133  Fed.  363  (C.  C.  A.  Colo.) :  "A  judgment 
of  a  court  of  bankruptcy  tliat  a  chattel  mortgage  upon  the  alleged  property  of 
the  bankrupt  is  voidable  by  his  trustee,  that  it  entitles  the  mortgagee  to  no  lien 
upon  the  property,  and  to  no  preference  in  payment  out  of  its  proceeds,  is  a 
final  decision  of  a  controversy  arising  in  bankruptcy  proceedings,  of  which  the 
Circuit  Court  of  Appeals  would  have  had  appellate  jurisdiction  if  it  had  arisen 
in  any  other  case  in  a  Federal  Court,  and  the  decision  may  be  reviewed  by 
appeal." 

And  they  are  appealable,  although  the  lien  be  incident  to  a  debt,  the  debt 
itself  not  being  disputed  and  hence  not  appealable  under  §  25  (a).^^ 

§  2924.  Summary  Order  on  Third  Party  to  Surrender  Assets,  Ap- 
pealable as  "Controversy." — A  summary  order  on  the  trustee's  appli- 
cation, requiring  a  third  party  to  surrender  property  which  previously  such 
third  party  had  persuaded  the  bankruptcy  receiver  voluntarily  to  turn  over 
to  him.  is  an  order  in  a  "controversy,"  and  is  appealable  under  §  24  (a).^°'' 
Similarly,  summary  orders  on  purchasers  at  judicial  sales  and  others  hav- 
ing possession  of  the  purchase  price,  are  appealable  under  §  24  (a), 
where  the  facts  are  in  dispute.^" ^ 

§  2925.  Likewise,  Summary  Order  on  Trustee  or  Receiver  to  Sur- 
render Assets  to  Third  Party. — Likewise,  an  order  on  the  petition  of  a 
third  party  claiming  ownership  of  goods  in  the  hands  of  the  trustee  or 
receiver,  is  such  a  "controversy"  and  is  appealable  under  §  24  (a),.^*^'^ 

§  2926.  Plenary  Suits  in  U.  S.  District  Courts  by  Adverse  Claim- 
ants in  Possession  to  Enjoin  Trustees,  Appealable  as  "Contro- 
versies."— Plenary  suits  in  the  United  States  District  Courts  in  bank- 
ruptcy, brought  by  adverse  claimants  in  possession  of  the  property  involved 
to  enjoin  the  trustee  from  interfering  therewith,  are  "controversies  arising 

98.  Instance,  In  re  Roche,  4  A.  B.  R.  369,  101  Fed.  956  (C.  C.  A.  Tex.) : 
Mortgagee's  attorney  denied  fee  as  part  of  lien  where  mortgage  not  foreclosed 
Dut  property  sold  by  trustee  in  bankruptcy  "clear  and  free." 

In  re  National  Bank,  14  A.  B.  R.  180,  135  Fed.  62  (C.  C.  A.  Ohio);  instance. 
In  re  Soudans  Mfg.  Co.,  8  A.  B.  R.  45,  113  Fed.  806  (C.  C.  A.  Ind.);.  Liddon  & 
Bro.  z'.  Smith,  14  A.  B.  R.  204,  135  Fed.  43  (C.  C.  A.  Fla.);  In  re  Holmes,  15 
A.  B.  R.  689,  142  Fed.  391  (C.  C.  A.  Colo.). 

99.  Hutchinson  v.  Otis,  10  A.  B-.  R.  275,  123  Fed.  14   (C.   C.   A.  Mass.). 

100.  Hinds  v.  Moore,  14  A.  B.  R.  1,  134  Fed.  221  (C.  C.  A.  Tenn.,  reversing 
In  re   Leeds  Woolen  Mills,   12  A.   B.   R.   136,  129   Fed.  922). 

101.  Mason  v.  Wolkowich,  17  A.  B.  R.  717,  150  Fed.  699  (C.  C.  A.  Mass.). 

102.  Walter  Scott  &  Co.  v.  Wilson,  8  A.  B.  R.  349,  115  Fed.  284  (C.  C. 
A.);  instance,  York  Mfg.  Co.  z>.  Cassell,  15  A.  B.  R.  633,  201  U.  S.  344;  Smith 
V.  Evans,  17  A.  B-.  R.  433,  148  Fed.  89  (C.  C.  A.  Ills.);  Hewitt  z:  Berlin  Machine 
Co.,  11   A.   B.   R.  708,   194  Fed.   U.   S-  296.     Compare  ante,  §  2875. 

2  Rem  B-33 


1714  REMINGTON    ON   BANKRUPTCY.  §   2928 

in  bankruptcy  proceedii^gs,"  and  not  proceedings  in  bankruptcy  proper, 
and  are  appealable  under  §  24  (a)  of  the  Act.^"-^ 

§  2927.  Also,  Plenary  Suits  by  Trustees  in  U.  S.  District  Court  to 
Recover  Property  Preferentially  or   Fraudulently  Transferred.— 

And  plenary  suits  brought  by  trustees  in  United  States  District  Courts  un- 
der favor  of  the  amendment  of  1903  to  §§  60  (b),  67  (e)  and  70  (e),  to 
recover  or  set  aside  preferential  or  fraudulent  transfers,  are  appealable, 
under  §  24  (a),  where  the  facts  are  disputed. ^'^■* 

McCarty  v.  Coffin,  18  A.  B.  R.  148,  150  Fed.  307  (C.  C.  A.  Tex.) :  "The  fore- 
going statement  of  the  allegations  of  the  petition  which  began  this  suit  shows 
it  to  be  in  substance  one  to  cancel  the  title  held  by  McCarty,  and  to  decree  that 
the  title  was  in  Coffin  as  trustee.  The  petition  is  variously  called  by  the  par- 
ties in  the  subsequent  proceedings  a  motion,  a  summary  proceeding,  and  a  bill. 
It  is  not  written  with  that  technical  skill  and  proper  formality  usually  found 
in  a  bill  to  cancel  an  adverse  conveyance  and  to  vest  title  in  the  complainant, 
but  we  find  in  the  pleading  all  the  necessary  averments,  and  it  concludes,  if  not 
with  the  usual  prayer,  by  asking  the  court  to  grant  the  relief  sought.  The 
suit  raises  a  distinct  and  separable  issue,  and  is  one  of  those  'controversies  aris- 
ing in  bankruptcy  proceedings'  over  which  the  Circuit  Court  of  Appeals  have 
appellate  jurisdiction  under  §  24a  of  the  Bankruptcy  Act  of  1898.  *  *  *  The 
case  does  not  fall  within  §  25a,  which  relates  to  appeals  from  judgments  in 
certain  enumer'ated  steps  in  bankruptcj^  proceedings." 

Division  2. 
Error  Proceedings  in  the  Circuit  Court  of  Appeals. 

SUBDIVISION  "a." 

Error  Proceedings  in  Bankruptcy  Proceedings  Proper. 

§  2928.  Error  Proceedings  Sole  Method  of  Review  in  Bankruptcy 
Proceedings  Proper,  Except  in  Three  Cases  of  §  25  (a). — Error 
proceedings,  as  distinguished  from  appeals,  are  the  method,  and  exclusive 
method,  of  reviewing  erroneous  orders  made  in  bankruptcy  proceedings 
proper,  where  the  right  of  appeal  therefrom  is  not  expressly  conferred  by 
the  bankruptcy  act  itself  in  §  25  (a)  ;  and  it  is  exercisable  under  § 
24    (b).if^ 

103.  Warehousing  Co.  v.  Hand,  16  A.  B.  R.  56  (C.  C.  A.  Wis.).  See  ante, 
§  ^3875. 

104.  Instance,  Rogers  v.  Page,  15  A.  B.  R.  502,  140  Fed.  596  (C.  C.  A. 
Tcnn.).     See  ante,  §  2874. 

105.  Iloldcn  X'.  Stratton.  10  A.  B.  R.  788,  191  U.  S.  115,  quoted  ante,  §  2911. 
Ingram  7'.  Wilson,  11  A.  B.  R.  194,  125  Fed.  91.3  (C.  C.  A.  Iowa),  quoted  ante, 
§  2911;  Apparently  contra,  Steele  v.  Buel,  5  A.  B.  R.  165,  104  Fed.  968  (C.  C. 
A.   Iowa). 

Section  24  (b)  has  no  application  to  the  territorial  courts.  In  re  Stumpf, 
4  A.  B.  R.  267  (Okla.  Sup.  Ct.). 


%   2935  REVIEW  IN  CIRCUIT  COURT  OE  APPEALS.  1715 

Fisher  v.  Cushman,  4  A.  B.  R.  646,  103  Fed.  860  (C.  C.  A.  Mass.):  "The 
appeal  will  not  lie  because  the  subject  thereof  is  not  within  the  three  specifica- 
tions of  the  matters  of  appeal  found  in  §  25  of  the  Bankrupt  Act." 

§  2929.  Limited  to  Matters  of  Law  under  §  24  (b).— And  the  cir- 
cuit court  of  appeals  is  limited  to  matters  of  law  therein. ^^*^ 

§  2930.  Thus,  Exemptions  Reviewable  Only  By  Petition  to  Re- 
view.— Thus,  the  allowance  or  disallowance  of  claims  for  exemptions  and 
orders  in  relation  to  setting  them  apart,  are  proceedings  in  bankruptcy 
proper,  but  are  not  appealable,  because  not  within  any  of  the  three  classes, 
of  §  25,  and  are  reviewable  by  petition  to  review  and  not  otherwise. ^^'^ 

§  2931.  Likewise,  Reopening  or  Refusal  to  Reopen  Closed  Es- 
tates.— Thus,  an  order  reopening  or  refusing  to  reopen  an  estate  once 
closed    is  not  reviewable  by  appeal,  but  only  by  petition  to  revise. ^^^ 

§  2932.  Administrative  Orders  Reviewable  under  §  24  (b).— Such 
-orders  of  the  bankruptcy  courts  as  relate  merely  to  the  administration  of 
the  estate  are  revisable  by  petition  to  review  under  §  24  (b).!^'^ 

§  2933.   Attorneys'  Fees  and  Other  Expenses  of  Administration. 

— Allowances  of  attorneys'  fees  and  other  expenses  of  administrationii'-' 
■are  reviewable  under  §  24  (b),  and  only  thus. 

§  2934.  Likewise,  Exemption  Matters. — Likewise,  exemption  mat- 
ters.iii 

§  2935.  Orders  on  Nonbankrupt  Partners  to  File  Schedules  or 
Surrender  Firm  Assets. — Orders  upon  individual  members  of  a  bank- 
rupt partnership,  themselves  not  adjudged  bankrupt,  to  file  schedules 
of  their  individual  property  and  debts,  and  to  surrender  their  property 

106.  In  re  O'Connell,   14  A.  B.   R.   238,  137   Fed.   838   (C.   C.   A.   Mass.). 
Compare   similar   ruling   as   to   petitions   for   revision   in    controversies   arising 

in  bankruptcy  proceedings,  post,  §  2940,  et  seq. 

107.  Holden  v.  Stratton,  10  A.  B.  R.  788,  191  U.  S.  115,  quoted  ante,  §  2911; 
Holden  v.  Stratton,  14  A.  B.  R.  94,  198  U.  S.  202;  Ingram  v.  Wilson,  11  A.  B. 
R.  194,  125  Fed.  913  (C.  C.  A.  Iowa);  Steiner  v.  Marshall,  15  A.  B.  R.  487, 
140  Fed.  710  (C.  C.  A.  Md.);  instance,  Lipman  v.  Stein,  14  A.  B.  R.  30,  134 
Fed.  235  (C.  C.  A.  Pa.);  instance.  In  re  Kane,  11  A.  B.  R.  533,  127  Fed.  552 
(C.  C.  A.  Ills.).  But  compare,  apparently  contra,  Steele  v.  Buel,  5  A.  B.  R. 
165,  104  Fed.  968  (C.  C.  A.  Iowa). 

108.  In  re  O'Connell,  14  A.  B.  R.  237,  137  Fed.  838   (C.  C.  A.   Mass.). 

109.  See  ante,  §  2868.  Dickas  v.  Barnes,  15  A.  B.  R.  570,  140  Fed.  849  (C. 
C.  A.  Ohio);  impliedly,  Davidson  v.  Ferguson-McKinney  Co.,  18  A.  B._  R. 
156,  150  Fed.  269   (C.  C.  A.  Tex.).     See  cases  cited  in  next  paragraph  followmg. 

110.  Davidson  i'.   Friedman,  15  A.  B.   R.  490,  140  Fed.   853   (C.  C.  A.  Mich.). 

111.  Davidson  v.  Ferguson-McKinney  Co.,  18  A.  B.  R.  156,  150  Fed.  269 
<C.  C.  A.  Tex.). 


1716  REMIXGTOX    OX    BAXKRUPTCY.  §   2938 

to  the  partnership  trustee  for  administration,  are  reviewable  under 
§  24  (b)  ;^i2  and  so,  also,  are  orders  to  surrender  assets  belonging  to  the 
bankrupt  partnership  estate.  ^^^ 

§  2936.  Likewise,  Distribution  between  Firm  and  Individual 
Creditors. — Likewise,  questions  of  distribution  between  firm  and  indi- 
\  idual  creditors   in  partnership  bankruptcies,  are  thus  reviewable. ^^-^ 

§  2937.  Also,  Orders  of  Sale  and  Controversies  Incident  Thereto, 
Reviewable  under  §  24  (b).— Also,  orders  of  sale  and  controversies 
incident  thereto  are  proceedings  in  bankruptcy  proper,  and  reviewable 
only  under  §  24  (b)  ;^^'^  such  as  orders  of  distribution  of  the  proceeds  of 
a  trustee's  sale.^^^ 

But,  in  such  cases,  on  reason,  it  would  seem  that,  following  the  prin- 
ciple of  Hutchinson  r.  Otis,  10  A.  B.  R.  135,  190  U.  S.  552,  there  must 
be  a  controversy  over  the  order  to  sell,  and  not  solely  over  the  incidental 
matter  of  a  lien. 

§  2938.  And  Summary  Orders  on  Bankrupts  and  Others  to  Sur- 
render Assets  or  Execute  Instruments. — A  summary  order  on  tbe 
bankrupt  to  surrender  assets  to  the  trustee  is  reviewable  only  under 
§  24  (b).ii' 

Samel  v.  Dodd.  16  A.  B.  R.  165,  142  Fed.  68  (C.  C.  A.  Ga.):  "The  following- 
propositions  seem  to  be  settled  law:  (1)  In  proceedings  like  the  present  (sum- 
mary orders  on  bankrupts  to  surrender  assets)  the  Court  of  Appeals  may- 
superintend  and  revise  the  action  of  the  District  Court  only  in  matters  of  law." 

Likewise,  a  summary  order  on  the  bankrupt  to  assign  property  or 
execute  instruments,  to  aid  the  trustee  in  collecting  in  the  assets,  is  re- 
viewable only  by  petition  to  revise,  not  by  appeal. 

112.  Dickas  v.   Barnes,   15   A.   B.   R.   570,   140   Fed.   849    (C.    C.   A.   Ohio). 

113.  In  re   Mertens,   15  A.   B.   R.   702,  142   Fed.  445   (C.   C.   A.   X.   Y.). 

114.  Euclid  Nat'l  Bank  r.  Union  Trust  Co.,  17  A.  B.  R.  834,  149  Fed.  975  (C. 
C.  A.  Va.). 

115.  In  re  :\Ic:\Iahon,  17  A.  B.  R.  537,  149  Fed.  684  (C.  C.  A.  Ohio),  bein^j 
an  instance  of  a  trust  deed  on  property,  alleged  to  be  fraudulent  under  §  67  (e). 
Bank  z\  Title  &  Trust  Co..  14  A.  B.  R.  102,  198  U.  S.  280. 

See  ante,  §§  2870  and  2876. 

Restraining  Orders  Issued  in  Bankruptcy  Proceedings  to  Enjoin  Disposi- 
tion of  Alleged  Undisclosed  Assets. — An  order  refusing  an  injunction  to  re- 
strain the  disposition  of  alleged  undisclosed  assets,  where  the  injunction  wis 
asked  for  by  the  assignee  of  a  proved  claim,  not  guilty  of  laches,  in  an  estate 
where  the  appointment  of  a  trustee  had  originally  been  dispensed  with,  for 
want  of  assets  and  absence  of  creditors,  is  reviewable  under  §  24  (b)  and  such 
petitioner  is  a  party  aggrieved.  Clark  v.  Pidcock,  12  A.  B.  R.  309,  129  Fed. 
745  (C.  C.  A.  N.  J.). 

116.  In  re  Groetzinger  &  Sons,  11  A.  B.  R.  467,  127  Fed.  124  (C.  C.  A.). 

117.  See  ante,  §  2873.  Schweer  v.  Brown,  12  A.  B.  R.  673,  195  U.  S.  171;  In- 
stances, In  re  Purvine,  2  A.  B.  R.  787,  96  Fed.  192  (C.  C.  A.  Tex.);  In  re 
Rosser,   4  A.    B.   R.   153,   101    Fed.   562    (C.    C.   A.    Mo.). 

-Apparently  contra,  where  facts  are  in  dispute,  it  is  reviewable,  if  at  alk 
only  on  appeal,  Ellis  v.  Krulewitch,  15  A.  B.  R.  615,  141  Fed.  954  (C.  C.  A). 


§    2941  REVIEW  IX  CIRCUIT  COURT  OF  APPEALS.  1717 

But  it  is  held  that  a  summary  order  on  a  nonbankrupt  member  of  a 
bankrupt  firm  to  surrender  a  poHcy  of  insurance  is  a  step  in  bankruptcy 
proceedings  proper,  and  reviewable  only  by  petition  for  revision  under 
§  24  (b).iis 

A  summary  order  on  a  third  party — an  adverse  claimant  in.  possession, 
who  was  erroneously  held  to  have  waived  objections  to  the  jurisdiction 
and  to  have  consented — is  reviewable  only  by  petition  to  revise,  not 
by  appeal.  1^^ 

§  2939.  Allowances  to  Widow  and  Children  on  Death  of  BanR- 
rupt  Pending  Adjudication. — It  is  doubtful  whether  the  allowances  to 
the  widow  and  children  under  §  8  on  the  death  of  the  bankrupt  are  to  be 
considered  bankruptcy  proceedings  proper  or  controversies  arising  therein, 
but,  in  either  event,  they  are  reviewable  by  petition  to  revise  where  the 
facts  are  undisputed. ^2** 

SUBDIVISION  "b." 

Error  Proceedings  in  Controversies  Arising  in  Bankruptcy  Pro- 
ceedings AND  IN  Independent  Suits  by  Trustees  in  U.  S.  Dis- 
trict Courts.  ' 

§  2940.  Error  Proceedings  in  "Controversies"  and  in  Independ- 
ent Plenary  Suits. — Error  proceedings,  as  distinguished  from  appeals, 
may  be  taken  in  the  circuit  court  of  appeals,  in  controversies  arising  in 
bankruptcy  proceedings,  as  distinguished  from  bankruptcy  proceedings 
themselves,  and  in  independent  plenary  suits,  from  courts  of  bankruptcy 
in  instances  where  error  proceedings  in  similar  cases  would  lie.^^^ 

§  2941.  Whether  §  24  Applies  Only  to  Orders  in  Proceedings  in 
Bankruptcy  Themselves,  Not  to  Orders  in  Independent  Plenary 
Suits. — Whether  §  24  applies  only  to  orders  made  in  the  proceedings 
themselves — whether  in  "bankruptcy  proceedings"  proper  or  in  mere  "con- 
troversies arising  in  bankruptcy  proceedings" — and  does  not  refer  to 
independent  plenary  suits  brought  by  trustees  to  recover  property  in  the 
U.  S.  District  Courts,  under  favor  of  the  amendment  of  1903  or  by  con- 


118.  In   re   Mertens,   15   A.   B.   R.   701,   142   Fed.   445    (C.   C.   A.   N.   Y.);   Fislier 
V.  Cushman,   4  A.   B.   R.   646,   103   Fed.   860   (C.   C.   A.   Mass.). 

119.  Bank   z:    Title    &   Trust   Co.,    14   A.    B.    R.    102,    198   U.    S.    280,   reversing 
11    A.    B.    R.    79. 

120.  In   re   McKenzie,   15   A.   B.   R.   681,   142   Fed.   383    (C.   C.   A.   Ark.). 

121.  Bankr.   Act,  §   24    (b) :   "The   several   circuit   courts   of  appeal   shall   have 
jurisdiction    in    equity,    either   intelocutory    or    final,    to    superintend    and    revise, 
in   matter   of  law  the  proceedings   of  the   several   inferior  courts   of  bankruptcy 
v/ithin   their  jurisdiction." 


1718  REMINGTON  ON  BANKRUPTCY.  §  2941 

sent,  does  not  seem  to  be  clear.     It  has  apparently  been  held    that  it  does- 
not  refer  to  independent  suits. ^22 

In  re  Jacobs,  3  A.  B.  R.  671,  99  Fed.  539  (C.  C.  A.  Mo.):  "In  view  of  these 
adjudications  upon  the  Bankrupt  Act  of  1867,  we  feel  constrained  to  hold  that 
it  is  only  some  action  taken  or  order  made  in  the  bankruptcy  proceeding  itself 
which  can  be-  reviewed  by  an  original  petition  addressed  to  this  court,  under 
subdivision  'b'  of  §  24  of  the  Bankrupt  Act,  and  that  the  power  thereby  con- 
ferred 'to  superintend  and  revise'  the  action  of  the  District  Court  does  not 
extend  to  suits  brought  in  that  court  by  the  trustee  in  bankruptcy  against  third 
parties,  to  collect  the  assets  of  the  estate,  or  to  suits  brought  by  third  parties 
against  the  trustee,  whether  such  suits  are  rightfully  or  wrongfully  brought  in 
that  court,  as  to  which  point  we  express  no  opinion  at  this  time.  Such  suits  as- 
those  last  referred  to,  whether  at  law  or  in  equity,  are  not  proceedings  in  bank- 
ruptcy, or  'controversies  arising  in  bankruptcy  proceedings,'  within  the  mean- 
ing and  intent  of  the  law  authorizing  petitions  for  review,  but  they  are  suits 
which  must  be  reviewed  in  the  ordinary  way,  by  appeal  or  writ  of  error,  when 
they  have  reached  a  final  determination  in  the  court  of  first  instance.  We  cam 
discover  nothing  in  the  language  or  policy  of  the  recent  Bankrupt  Act  which 
would  seem  to  require  the  various  Circuit  Courts  of  Appeals  to  review  every 
interloctuory  order  made  or  proceeding  taken  in  an  ordinary  action  at  law  or  in. 
equity,  in  a  suit  between  a  trustee  in  bankruptcy  and  a  third  party,  which  hap- 
pens to  be  brought  in  the  District  Court,  simply  because  the  trustee's  title  to 
the  property  claimed,  or  his  liability  to  be  sued,  is  founded  on  the  Bankrupt 
.Act.  Nor  do  we  believe  that  such  a  construction  of  the  act  was  within  the 
contemplation  of  Congress." 

In  re  Rusch,  8  A.  B.  R.  518,  116  Fed.  270  (C.  C.  A.  Wis.):  "By  §  24  (a)  of 
the  Bankrupt  Act,  the  Circuit  Courts  of  .Appeal  are  given  'appellate  jurisdiction 
of  controversies  arising  in  bankruptcy  proceedings  from  the  courts  of  bank- 
ruptcy from  which  they  have  appellate  jurisdiction  in  other  cases.'  By  subdivi- 
sion 'b'  of  that  section  such  courts  are  given  jurisdiction  in  equity,  either 
interlocutory  or  final,  to  superintend  and  revise  in  matter  of  law  the  proceed- 
ings of  the  several  inferior  courts  of  bankruptcy  within  their  jurisdiction.  This^ 
revisory  power  is  like  to  that  conferred  upon  Circuit  Courts  under  the  Bank- 
ruptcy Act  of  1867.  Under  that  act  it  was  ruled  that  the  jurisdiction  thus 
conferred  upon  the  Circuit  Courts  was  dual  in  character: 

"  'First,  jurisdiction  as  a  court  of  bankruptcy  over  the  proceedings  in  bank- 
ruptcy initiated  by  the  petition,  and  ending  in  the  distribution  of  assets  among 
the  creditors,  and  the  discharge,  or  refusal  of  a  discharge,  of  the  bankrupt; 
secondly,  jurisdiction  as  an  ordinary  court  of  suits  at  law  or  in  equity  brought 
by  or  against  the  assignee  in  reference  to  alleged  property  of  the  bankrupt,  or 
to  claims  alleged  to  be  due  from  or  to  him.'     *     *     * 

"This  rule  is  applicable  to  the  grant  of  jurisdiction  under  the  present  Bank- 
ruptcy Act.  It  follows  that  the  power  to  revise  by  original  petition  here  the 
ruling  of  the  bankruptcy  court  extends  only  to  some  order  made  in  the  bank- 
ruptcy proceedings  proper,  and  does  not  embrace  proceedings  in  suits  brought 
by  the  trustee  in  bankruptcy  against  third  parties.  *  *  *  -^g  \■^Q]^^  j,^  j-]-,g 
opinion  in  the  principal  case,  herewith  decided    *    *    *     ^-|-,^|.  ^y,g  proceeding  be- 

122.  Compare,  In  re  Antigo  Screen  Door  Co.,  10  A.  B.  R.  362,  123  Fed. 
^49  (C.  C.  A.  Wis.),  where  the  same  court  that  decided  In  re  Rusch,  8  A.  B. 
R.  518,  116  Fed.  270  (C.  C.  A.  Wis.),  and  In  re  Jacobs,  3  A.  B.  R.  671,  99  Fed. 
539  (C.  C.  A.  Mo.),  held,  that  if  actual  possession  were  surrendered  to  the- 
court  it  would  have  jurisdiction. 


§    2942  REVIEW  IN  CIRCUIT  COURT  OF  APPEALS.  1719 

low  was  not  'a  proceeding  in  bankruptcy,'  but  was  in  the  nature  of  an  independ- 
ent suit  by  the  trustee,  which  could  have  been  maintained  equally  in  a  State 
court.  *  *  *  And  was  maintainable  in  the  bankruptcy  court  as  a  plenary  suit, 
and  only  because  of  the  submission  of  the  G.  W.  Jones  Lumber  Company  to 
its  jurisdiction." 

Doroshow  v.  Ott,  14  A.  B.  R.  39,  134  Fed.  740  (C.  C.  A.  N.  J.):  "We  have  no 
difficulty  in  saying  that  the  petitioner,  in  the  case  at  bar,  has  not  presented  a 
matter  reviewable  in  this  court  under  §  24b  of  the  bankrupt  law.  The  suit 
brought  by  the  trustee  against"  the  petitioner  in  the  District  Court,  was  specially 
.authorized  by  the  amendment  of  the  Bankrupt  Act  of  1903,  above  referred  to. 
It  is  true,  the  District  Court  was  the  court  of  bankruptcy  having  jurisdiction 
of  the  bankrupt's  estate,  which  the  complainant,  as  trustee,  was  administering, 
but  the  suit  in  equity  instituted  by  him  was  none  the  less  an  independent  suit, 
and  incapable  of  being  characterized  as  a  proceeding  in  bankruptcy,  within  the 
meaning  of  §  24b  of  the  Bankrupt  Act.  We  cannot  here  and  now,  upon  this  pe- 
tition, consider  the  specifications  of  error  made  by  the  petitioner  to  the  inter- 
locutory decree  of  that  court.  The  orders  and  decrees  of  the  District  Court  in 
that  suit,  whether  interlocutory  or  final,  can  only  be  reviewed  in  this  court  upon 
appeal  regularly  taken." 

But,  again,  it  has  been  held  that  it  inckides  independent  plenary  suits.   ' 

Delta  Nat'l  Bk.  v.  Easterbrook,  13  A.  B.  R.  340,  133  Fed.  521  (C.  C.  A.  Tex.): 
"In  the  lower  court  this  was  an  action  at  law  for  the  specific  recovery  of  per- 
sonal property,  and  was  a  controversy  arising  in  bankruptcy  proceedings,  of 
which  the  lower  court  had  jurisdiction  under  §  70e.  *  *  *  From  the  final 
judgment  rendered  in  the  case  no  appeal  lies  under  §  25  *  *  *  and,  if  this 
court  has  jurisdiction  to  review  the  same,  the  authority  must  be  found  under  § 
24a  *  *  *  and  in  the  appellate  jurisdiction  of  the  Circuit  Courts  of  Appeals 
as  granted  by  the  Act  of  1891,  which  jurisdiction  is  not  restricted  by  the  Bank- 
ruptcy Law;  and  therefore  decrees  in  equity  and  judgments  at  law,  although  in 
controversies  arising  in  bankruptcy  proceedings,  may  be  revised  by  this  court." 

It  would  seem,  perhaps,  that  it  refers  to  the  review  of  the  action  of 
the  court  in  charge  of  the  bankruptcy  case  as  to  orders  made  in  the  course 
of  the  proceedings,  rather  than  to  independent  suits  by  trustees.  These 
independent  suits  by  trustees,  wherever  brought,  whether  in  the  state 
courts,  or,  under  favor  of  the  amendment  of  1903,  in  the  U.  S.  District 
Courts  in  bankruptcy,  follow  the  course  of  procedure  of  the  forum. 
The  distinction,  however,  is  academic,  since  the  procedure  would  be  the 
same  whether  under  §  24  or  under  the  general  law. 

§  2942.    Section  24    (b)    Authorizes  Review  Only  of  Law,   Not 

Pacts. — Section  24  (b)  refers  only  to  revision  in  matters  of  law  and  not 
fact :  the  circuit  court  of  appeals  will  revise  the  action  of  the  district  court 
under  §  24  (b)  only  on  questions  of  law,  not  on  questions  of  fact.^^.T 

Elliott  V.  Toeppner,  9  A.   B.   R.   56,  187  U.   S.   327:     "Section  24   (b)     *     *     * 

is  confined  to  questions  of  law  and  does  not  contemplate  a  review  of  the  facts." 

In  re  Taft,  13  A.  B.  R.  419,  133  Fed.  511  (C.  C.  A.  Ohio):     "Inasmuch  as  our 

123.  See  ante,  §  2882.  In  re  Whitener,  3  A.  B.  R.  198.  105  Fed.  180  (C.  C. 
A.  Tex.);  In  re  Richards,  3  A.  B.  R.  145,  96  Fed.  935  (C.  C.  A.  Wis.);  In  re 
Rosser,  4  A.  B.   R.  153,  101  Fed.    562    (C.    C.    A.    Mo.);    In    re    Rouse,    Haz- 


1720  REMINGTON  ON  BANKRUPTCY.  §  2943 

jurisdiction  to  review  the  orders  of  the  bankrupt  courts,  under  §  24b  of  the  Bank- 
rupt Act  of  1898,  does  not  extend  to  any  review  of  a  finding  or  conclusion  of 
fact,  but  is  limited  to  a  review  of  decisions  of  law  made  by  the  District  Court, 
it  becomes  essential  that  we  shall  have  presented  to  us,  by  such  a  petition  for 
review,  specific  decisions  of  law  made  by  the  lower  court  by  which  the  peti- 
tioners are  aggrieved." 

Printing  Co.  z:  Brewing  Co.,  4  A.  B.  R.  183,  101  Fed.  700  (C.  C.  A.  Ky.) :  "Two 
modes  of  reviewing  the  decisions  and  orders  of  the  District  Court  in  bankrupt 
proceedings  are  provided  by  the  Bankrupt  Act.  The  first  is  that  found  in  § 
24b  of  the  act.     *     *     * 

"The  superintending  and  revising  authority  granted  by  the  twenty-fourth 
section  was  evidently  intended  to  provide  a  summary  way  for  reviewing  the 
orders  and  decisions  of  the  bankrupt  courts  upon  questions  of  law,  and  does 
not  contemplate  any  review  of  the  facts.  Under  §  25,  a  review  of  both  ques- 
tions of  fact  and  law  is  contemplated.  Under  §  24,  the  jurisdiction  is  not  ex- 
ercised under  an  appeal,  but  upon  an  original  petition  filed  in  this  court  by  any 
person  aggrieved  by  the  decision  or  order  complained  of.  This  differentiation 
of  the  modes  of  redress  provided  by  the  two  sections  seems  altogether  con- 
formable to  the  language  employed,  and  is  the  interpretation  announced  by  the 
Circuit  Court  of  Appeals  for  the  Seventh  Circuit." 

In  re  Throckmorton,  17  A.  B.  R.  856  (C.  C.  A.  Ohio):  "Obviously  our  juris- 
diction is  restricted  to  matters  of  law,  and  the  legal  questions  we  can  examine 
are  only  those  which  arise  out  of  the  facts  found  or  conceded." 

In  re  Purvine,  2  A.  B.  R.  787.  96  Fed.  192  (C.  C.  A.  Tex.):  "This  court  only 
revises  the  action  of  the  District  Court  in  matters  of  law.  Bankruptcj^  Act 
1898,  §§  24,   24b. 

"The  facts  are  for  the  District  Court.  The  judge  presiding  in  that  court 
found  that  Purvine  had  the  money  in  his  possession  and  control,  and  there  was 
ample  evidence  to  support  such  finding;  so  the  sole  question  here  is  one  of 
the  power  of  the  District  Court  to  order  a  bankrupt  having  money  in  his  pos- 
session, belonging  to  the  bankrupt  estate,  to  turn  the  same  over  to  the  trustee, 
and  to  punish  as  for  contempt  the  failure  to  do  so." 

And  the  circuit  court  of  appeals  will  look  no  further  into  the  facts,  as 
found  by  the  district  court,  than  to  ascertain  whether  they  are  supported 
by  the  evidence.  ^-^ 

§  2943.  Intervening  Petitions  Claiming  Property  or  Funds  in 
Custody  of  Bankruptcy  Court  or  Claiming  Liens  or  Other  Interests 
Therein  Reviev^^able  by  Petition  to  Revise.— Intervening  petitions 
claiming  property  or  funds  in  the  custody  of  the  bankruptcy  court  or 
claiming  liens  thereon,  or  other  interests  therein,  are  reviewable  by  petition 
to  revise,  where  the  facts  are  found  and  not  disputed.  125 

ard  &  Co.,  1  A.  B.  R.  2,34,  91  Fed.  96  (C.  C.  A.  Ills.);  In  re  Holmes, 
15  A.  B.  R.  693,  142  Fed.  391  (C.  C.  A.  Colo.),  quoted  ante;  Mueller  z'  Nugent, 
7  A.  B.  R.  224,  184  U.  S.  9;  Bank  v.  Chicago  Title  &  Trust  Co.,  14  A.  B  R  102, 
198  U.  S.  280,  quoted  ante;  Loan  &  Trust  Co.,  14  A.  B.  R.  3113,  135  Fed.  717 
(C  C.  A.  W.  Va.).  Similarly  as  to  bankruptcy  proceedings  proper'.  In  re  O'Con- 
nell.  14  A.  B.  R.  238,  137  Fed.  838  (C.  C.  A.  Alass.). 

124.  Cases    cited,    supra. 

125.  Hutchinson   z\    LeRoy,   8   A.   B.    R.   20,   113    Fed.    200    (C.    C     \     Mass  ) 
See  ante,  §  2875  and  §   2885.  ^^<i^^J. 


^  2946  review  in  circuit  court  of  appeals.  1721 

Division  3. 

Procedure  on  Appeal  and  on  Petitions  for  Revision  to  the  Circuit 

Court  of  Appeals. 

§  2944.  Brief  Resume.— The  Bankruptcy  Act,  in  brief,  provides  two 
different  methods  of  reviewing  in  the  circuit  court  of  appeals  judgments 
and  orders  of  the  district  courts  in  bankruptcy;  one,  by  petition  for  re- 
vision, which  brings  up  only  matters  of  law  and  which  is  not  available  to 
review  erroneous  findings  of  facts ;  the  other,  by  appeal,  which  brings  up 
both  law  and  fact.  In  all  instances  of  review,  whether  by  way  of  petition 
for  revision  or  by  way  of  appeal,  whether  in  bankruptcy  proceedings 
proper  or  in  controversies  arising  in  bankruptcy  proceedings  or  in  inde- 
pendent suits  by  trustees  in  bankruptcy  in  the  district  court,  the  right  to 
exercise  the  particular  method  of  review  adopted,  and  the  practice  and 
procedure  in  exercising  it,  follow  the  usual  course  of  equity  practice  in 
the  federal  courts ;  save  and  except  that,  in  bankruptcy  proceedings  proper, 
appeal  is  available  only  in  the  three  instances  of  §  25,  namely,  adjudica- 
tions of  bankruptcy,  discharges  and  allowances  and  rejections  of  claims, 
and  in  those  three  instances  is  perhaps  the  only  available  method  of  re- 
view; and  that  method  is  to  be  pursued  in  accordance  with  the  peculiar 
provisions  of  the  Bankruptcy  Act,  and  the  rules  and  general  orders  made 
in  pursuance  thereof ;  whilst  in  all  other  instances  of  bankruptcy  proceed- 
ings proper,  review  may  be  had  only  by  petition  for  revision. ^^^ 

subdivision  "a." 

Procedure  on  Error  Proceedings  or  Petition  for  Revision. 

§  2945.  Procedure  on  Error  to  Be  by  Writ  of  Error  or  Petition 
to  Revise,  and  Notice. — Error  proceedings  must  be  upon  writ  of  error 
or  petition  to  revise,  and  upon  due  notice.  ^2' 

§  2946.  If  by  Petition  to  Revise,  Filing-  of  Petition  and  Notice, 
Sole  Requirements. — In  error  proceedings  by  petition  to  revise,  in  the 
absence  of  local  rule  of  court  and  of  a  showing  of  prejudice  to  some 
party's  rights,  no  other  requiirements  exist  than  the  filing  of  the  petition 
to  revise  and  the  giving  of  notice ;  the  petition  for  review  need  not  be 
"■'allowed"  by  the  judge;  bond  need  not  be  given;  the  transcript  of  the 
record  filed  need  not  be  certified,  and  need  not  contain  the  pleadings  nor 
the  evidence,  nor  show  the  parties,  and  need  not  be  filed  within  any  par- 
ticular time. 

Drug  Co.  V.  Drug  Co.,  14  A.  B.  R.  477,  1.36  Fed.  396  (C.  C.  A.  Tex.):  "The 
trustee  of  the  bankrupt's  estate  moves  to  dismiss  this  petition  to  revise  because  it 

126,  See   cases   cited  ante,   §   2881,   et   seq.;   §§   2928.   2941. 

127.  Attesting  of  writ  of  error;  its  amendability ;  laches  in  asking  for  its 
dismissal.  Long  v.  Farmers'  State  Bk.,  17  A.  B.  R.  103,  147  Fed.  360  (C.  A. 
Iowa). 


1722  KDMINGTON  ON  BANKRUPTCY.  §  2949 

was  not  allowed  by  any  judge  of  this  or  the  lower  court;  no  bond  has  been 
given;  the  transcript  of  the  record  filed  is  not  certified  by  the  clerk  of  the 
lower  court;  the  transcript  does  not  contain  the  pleadings  upon  which  the  is- 
sues were  tried,  nor  show  who  are  the  proper  parties  to  this  proceeding;  the 
transcript  does  not  contain  the  evidence  upon  which  the  findings  of  the  referee 
were  based;  the  petition  to  revise  was  filed  more  than  three  months  after  the 
entry  of  the  judgment  below;  and,  lastly,  because  no  supersedeas  has  been 
granted. 

"In  our  opinion,  none  of  these  grounds  are  well  taken.  The  statute  allows 
the  petition  to  revise  to  be  filed  on  due  notice,  but  provides  no  other  regula- 
tions. This  court  has  made  no  rules  as  to  any  of  the  requisites  or  formalities 
referred  to  in  the  motion  to  dismiss." 

§  2947.  Petition  for  Review  to  Be  Filed. — A  petition  for  review 
must  be  filed. ^^s 

But,  as  noted  in  the  preceding  paragraph,  such  petition  for  review  need 
not  be  "allowed"  by  the  judge,  unless  a  rule  of  court  so  prescribes,  or 
some  showing  is  made  of  prejudice  to  some  party's  rights.       * 

§  2948.  Petition  to  Set  Forth  Order  Complained  of. — The  petition 
should  set  forth  the  specific  order  complained  of  as  erroneous. ^^9 

In  re  Taft,  13  A.  B.  R.  417,  133  Fed.  511  (C.  C.  A.  Ohio):  "It  is  therefore  an 
elementary  rule  of  procedure  that  the  petition  for  a  review  shall  set  out  the 
matters  of  law  we  are  asked  to  review." 

In  re  Richards,  3  A.  B.  R.  145,  96  Fed.  935  (C.  C.  A.  Wis.):  "The  petition  in 
■  such  case  should  state  specifically  the  question  of  law  which  was  involved  and 
was  ruled  upon  by  the  court  below." 

In  re  O'Connell,  14  A.  B.  R.  238,  137  Fed.  838  (C.  C.  A.  Mass.):  "We  held 
that  on  petitions  of  this  class  the  records  should  present  to  us  simply,  clearly 
and  unequivocally  the  issues  of  law  to  the  like  eflfect  as  bills  of  exception,  pro- 
ceedings without  a  jury,,  and  proceedings  in  the  Supreme  Court  on  admiralty 
appeals  as  provided  in  the  act  of  Feb.  16,  1875.  We  also  said  that  in  order  that 
it  may  appear  by  the  record  that  issues  raised  on  appeal  were  presented  below, 
findings  of  fact  which  involve  distinct  propositions  of. law,  or  something  else  as 
a  substitute  therefor,  are  necessary." 

§  2949.   How  Far  to  Set  Forth  Issue  on  Which  Erroneous  Order 

Made. — The  petition  for  review,  it  is  said,  should  set  forth  the  facts  or 
finding  of  facts  upon  which  the  erroneous  order  was  made.^^^ 

But  it  is  questioned  whether  the  petition  is  the  proper  place   for  the 

128.  Bankr.  Act,  §  24  (b) :  "Such  power  shall  be  exercised  on  due  notice 
and  petition  by  any  party  aggrieved."  _ 

Inferentially,  In  re  Taft.  13  A.   B.  R.  417,  133  Fed.  511   (C.  C.  A.  Ohio). 

129.  In  re  Boston  Dry  Goods  Co.,  11  A.  B.  R.  97,  125  Fed.  126,  127,  130  (C. 
C  A  Mass.);  In  re  Shoe  &  Leather  Reporter,  12  A.  B.  R.  248,  129  Fed.  58S 
(C.  C.  A.  Mass.);  In  re  D.  Abraham,  2  A.  B.  R.  266,  93  Fed.  767  (C.  C.  A. 
Ala.,  reversed,  on  other  grounds,  in  5  A.  B.  R.  623,  sub  nom.  Bryan  v.  Bern- 
heimer). 

130.  In  re  Taft,  13  A.  B.  R.  417,  133  Fed.  511  (C.  C.  A.  Ohio);  Steiner  z-. 
Marshall,  15  A.  B.  R.  487,  140  Fed.  710   (C.  C.  A.  Md.). 


§   2952  REVIEW  IN  CIRCUIT  COURT  OF  APPEALS.  1723 

Statement  of  facts.     The  body  of  the  decision  in  In  re  Taft  does  not  seem 
to  support  the  syllabus  in  this  particular. 

The  rule  rather  is  that  the  petition  should  state  specifically  the  question 
of  law  involved  and  ruled  upon  by  the  court  below.^^i 

In  re  Baker,  4  A.  B.  R.  778,  104  Fed.  287  (C.  C.  A.  Mass.):  "Although,  under 
Equity  Rule  26,  the  old  prolixity  is  not  required,  yet,  following  the  guidance  of 
the  recognized  precedents  for  bills  of  review  for  alleged  errors  in  law  this  pe- 
tition should  have  presented,  in  some  way,  enough  of  the  tenor  of  the  record 
in  the  District  Court  to  enable  us  to  perceive  the  issue  of  law  which  it  seeks 
to  raise." 

§  2950.  Record  to  Set  Forth  Order  Complained  of. — The  record, 
on  review,  must  set  forth  the  order  or  judgment  complained  of:  the  mere 
opinion  of  the  lower  court  is  not  sufficient. ^^^ 

In  re  Richards,  3  A.  B.  R.  146,  96  Fed.  935  (C.  C.  A.  Ind.) :  "We  might  prop- 
erly dismiss  this  petition  without  consideration  of  the  merits,  both  upon  the 
ground  that  no  order  appears  to  have  been  entered  by  the  District  Court  de- 
termining the  prayer  of  the  petition,  and  upon  the  further  ground  that  the  prac- 
tice adopted  by  the  petitioners  in  seeking  a  review  of  the  decision  below  is 
not  conformable  to  law.  *  *  *  Xhe  petition  in  such  case  should  state  spe- 
cifically the  question  of  law  which  was  involved  and  was  ruled  upon  b^  the 
court  below,  and  should  be  accompanied  by  a  certified  copy  of  so  much  of  the 
record  as  will  exhibit  the  manner  in  which  the  question  arose  and  its  determin- 
ation." 

§  2951.  And  to  Present,  Clearly,  Issues  of  Law. — The  record  on 
review  should  present  clearly,  and  unequivocally,  the  issues  of  law  pre- 
sented.^^^ 

§  2952.   Also,  to  Show  Insufficiency  of  Grounds  for  Order. — The 

presumption  is  that  the  district  court's  order  was   founded  on  sufficient 
grounds  and  the  contrary  must  be  shown  by  the  record.  ^^^ 

131.  In  re  Richards,  3  A.  B.  R.  145,  96  Fed.  975  (C.  C.  A.  Wis.),  quoted 
ante,  §   2948. 

132.  In  re  Boston  Dry  Goods  Co..  11  A.  B.  R.  97.  125  Fed.  226,  227,  230 
(C.  C.  A.  Mass.),  cited  in  In  re  O'Connell,  14  A.  B.  R.  237,  137  Fed.  838  (C. 
C.  A  Mass.);  Rush  v.  Lake.  10  A.  B.  R.  455,  122  Fed.  561  (C.  C.  A.,  revers- 
ing 7  A.  B.  R.  96);  In  re  Pettingill  &  Co.,  14  A.  B.  R.  757,  137  Fed.  840  £C. 
C.  A.  Mass.). 

133.  In  re  O'Connell,  14  A.  B.  R.  237,  137  Fed.  838  (C.  C.  A.  Mass.),  quoted 
ante,  §  2948;  In  re  Boston  Dry  Goods  Co.,  11  A.  B.  R.  97,  125  Fed.  226,  227, 
230  (C.  C.  A.  Mass.).  Analogously,  Devries  v.  Shanahan,  10  A.  B.  R.  518,  122 
Fed.   629    (C.   C.   A.   Md.). 

134.  Kuntz  V.  Young,  12  A.  B.  R.  505,  131  Fed.  719  (C.  C.  A.  Minn.);  In  re 
O'Connell,  14  A.  B.  R.  237,  137  Fed.  838  (C.  C.  A.  Minn.).  See  ante,  §§ 
2841,    2890,    2922. 

The  record  should  show  the  order  complained  of  is  a  final  order  deter- 
mining the  parties'  rights  or   disposing  of  the  suit. 


1724  rh;mington  on  bankruptcy.  §  2956 

§  2953.   Whether  Testimony  and  Other  Evidence  to  Appear. — To 

what  extent  the  testimony  and  other  evidence  must  appear^^o  jg  J-^Qt  f^Hy 
settled. 

§  2954.  Not  by  "Bill  of  Exceptions."— But  a  bill  of  exceptions  has 
no  function  and  accomplishes  no  purpose  in  proceedings  in  bankruptcy.^^^ 
A  proceeding  in  bankruptcy  is  a  proceeding  in  equity.^^r  Nevertheless, 
a  so-called  bill  of  exceptions  may  be  treated  as  a  stipulation  of  the  par- 
ties as  to  the  facts. ^^^ 

But  it  has  been  held  that  the  record  should  present  simply,  clearly  and 
unequivocally  the  issues  of  law,  to  the  like  efifect  as  bills  of  exceptions. ^-^^^ 

§  2955.  Findings  of  Fact  or  Equivalent,  Requisite. — In  order  that 
it  may  appear  by  the  record  that  issues  raised  in  the  reviewing  court  were 
presented  below,  findings  of  fact,  which  involve  distinct  propositions  of 
law,  or  something  else  as  a  substitute  therefor,  are  necessary. i^'* 

In  re  Taft,  13  A.  B.  R.  419,  133  Fed.  511  (C.  C.  A.  Ohio):  "Having  no  authority 
to  review  a  conchision  of  fact,  we  must,  if  we  can,  discover  the  conclusions  of 
fact  upon  which  the  district  judge  made  the  order  complained  of  and  review 
the  questions  of  law  necessarily  raised  and  decided  upon  the  facts  so  found. 
The  district  judge,  however,  made  no  separate  finding  of  facts,  but  affirmed  the 
'findings'  and  'decision'  of  the  referee." 

§  2956.  Mere  "Opinion"  of  District  Court  Insufficient,  unless 
Made  Part  of  Record. — The  mere  opinion  of  the  district  court  is 
insufficient  ;i-*^  unless  it  is  specially  made  part  of  the  record. ^-^^ 

135.  Analogously  (on  appeal),  Williams  Bros.  v.  Savage,  9  A.  B.  R.  723, 
120  Fed.  417  (C.  C.  A.  Va.). 

^  Compare,  Drug  Co.  v.  Drug  Co.,  14  A.  B.  R.  477,  136  Fed.  369  (C.  C.  A.  Tex.); 
'"The  trustee  of  the  bankrupt's  estate  moves  to  dismiss  this  petition  to  revise 
because  it  was  not  allowed  by  any  judge  of  this  or  the  lower  court;  no  bond 
has  been  given;  the  transcript  of  the  record  filed  is  not  certified  by  the  clerk 
of  the  lower  court;  the  transcript  does  not  contain  the  pleadings  upon  which 
the  issues  were  tried,  nor  show  who  are  the  proper  parties  to  this  proceeding; 
the  transcript  does  not  contain  the  evidence  upon  which  the  findings  of  the 
referee  were  based;  the  petition  to  revise  was  filed  more  than  three  months 
after  the  entry  of  the  judgment  below;  and,  lastly,  because  no  supersedeas  has 
been  granted.  In  our  ^opinion,  none  of  these  grounds  are  well  taken.  The 
statute  allows  the  petition  to  revise  to  be  filed  on  due  notice,  but  provides  no 
other  regulations." 

136.  Dodge  v.   Norlin,  13  A.   B.   R.   176,   133   Fed.  363    (C.   C.   A.   Colo.). 

137.  Dodge  v.  Norlin,  13  A.  B.  R.  176,  133  Fed.  363  (C.  C.  A    Colo.) 

138.  Dodge  v.  Norlin,  13  A.  B.  R.  176,  133  Fed.  363  (C.  C.  A.  Colo.). 

139.  In  re  O'Connell,  14  A.  B.  R.  237,  137  Fed.  838  (C.  C.  A.  Mass.),  quoted 
ante,    §    2948. 

140.  In  re  O'Connell,  14  A.  B.  R.  238,  137  Fed.  838  (C.  C.  A.  Mass)-  In  re 
Boston  Dry  Goods  Co.,  11  A.  B.  R.  97,  125  Fed.  226,  227,  230  (C.  C.  A.  Mass.); 
In  re  Shoe  &  Leather  Reporter,  12  A.  B.  R.  248,  129  Fed.  588  CC.  C.  a'.  Mass.); 
In  re  Pettmgill  &  Co.,  14  A.  B.  R.  760,  137  Fed.  840  (C.  C.  A.  Mass  ) 

141.  In  re  Pettingill   &  Co.,  14  A.  B.   R.  760,  137  Fed.  840   (C.  C.  A.  Mass  ). 

142.  In  re  Pettmgill  &  Co.,  14  A.  B.  R.  760,  137  Fed.  840  (C.  C.  A.  Mass.). 
Chapman  Tr.  v.  Bowen,  18  A.  B.  R.  844,  207  U.  S.  — 


§   2960  REVIEW  IN  CIRCUIT  COURT  OF  APPEALS.  1725 

§  2957.  But  May  Be  "Looked  to."— But  the  "opinion"  may  be  looked 
to,  to  ascertain  in  a  general  way  the  proposition  on  which  the  case  has 
been  disposed  of,  and  in  particular  the  questions  of  law  passed  on.^-*^ 

§  2958.  Due  Notice  to  Be  Given.— The  statute  requires  that  the 
power  to  revise  shall  be  exercised  on  due  notice. ^^^  What  is  due  notice, 
.^o  far  as  time  is  concerned,  is  not  specified.^"'"' 

The  form  of  the  "due  notice"  is  undoubtedly  the  usual  form  in  cases 
of  revision  in  the  federal  courts. 

SUBDIVISION    "b." 
Procedure  on  Appeal. 

§  2959.    Procedure  on  Appeal  Follows  Equity  Appeal  Procedure. 

— The  appeal  proceedings  follow  the  manner  of  appeals  in  equity  cases. ^-^^ 
Not  only  is  this  expressly  provided  in  §  25    (a),  in  the  clause  "as  in 
equity  cases,"  but  it  is  in  conformity  with  General  Order  No.  XXXVI' 
which  provides : 

"1.  Appeals  froin  a  court  of  bankruptcy  to  a  circuit  court  of  appeals,  or  to  the 
Supreme  Court  of  the  territory  shall  be  allowed  by  a  judge  of  the  court  appealed 
from  or  of  the  court  appealed  to,  and  shall  be  regulated  except  as  otherwise 
provided  by  the  Act  by  the  rules  governing  appeals  in  equity  in  the  courts  of 
the  United  States." 

In  re  Robertshaw  Co.,  14  A.  B.  R.  342,  135  Fed.  220  (D.  C.  Penn.) :  "So  that 
§§  698  and  750  of  Revised  Statutes  as  to  what  the  transcript  shall  contain  on 
appeal  'in  causes  in  equity'  are  in  full  force  and  apply  in  this  case,  the  latter  of 
which,  in  the  absence  of  stipulation,  provides  for  the  transmission  of  the  whole 
of  the  record  in  the  strict  sense  of  the  word  (Nashau,  etc.,  Co.  v.  Boston,  etc., 
Co.,  61  Fed.  237)  and  the  former,  for  sending  up  the  proofs,  entries  and  papers 
on  file  'necessary  to  a  hearing  of  the  appeal.'  " 

§  2960.    Application  for  Leave,  Allow^ance,  Citation  and  Notice. 

— The  practice  is  to  present  to  the  court  appealed  from,  or  to  the  court 
appealed  to,  an  application  for  leave  to  appeal ;  and  for  the  court  then 
to  enter  an  order  allowing  the  applicant  to  appeal ;  whereupon  the  prayer 
for  appeal,  its  allowance  and  the  citation  and  service  thereon  should  be 
filed  with  the  district  court,  within  the  time  limit. ^^^  But  the  prayer  for 
reversal  and  the  citation  may  be  waived. ^"'^ 

143.  In   re   Pettingill   &  Co.,   14  A.   B.   R.   760,  137   Fed.   840   (C.   C.   A.   Mass.). 
Annexing   Judges'    "Opinion." — In    some    circuits,    the    court    of    appeals    has 

prescribed  that  the  opinion  of  the  court  below  is  also  to  be  attached  as  part 
of  the  record.  In  re  Robertshaw  Mfg.  Co.,  14  A.  B.  R.  342,  135  Fed.  220  (D. 
C.   Pa.). 

144.  Bankr.  Act,  §  24  (b)  "*  **  *  Such  power  shall  be  exercised  on  due 
notice  and  petition  by  any  party  aggrieved." 

145.  See  post,   subdiv.  "E." 

146.  In   re   Baker,   4   A.    B.    R.   778,    104   Fed.    287    (C.    C.    A.    Mass.). 

147.  U.  S.  Rev.  Stats.,  §  997.  Lockman  v.  Lang,  11  A.  B.  R.  597,  128  Fed. 
279  (C.  C.  A.  Colo.);  Norcross  v.  Nave,  4  A.  B.  R.  317,  101  Fed.  796  (C.  C  A. 
Mo.). 

148.  Lockman  v.  Lang,  11  A.  B.  R.  597,  128  Fed.  279   (C.  C.  A.  Colo.). 


1726  REMINGTON   ON  BANKRUPTCY.  §  2963 

§  2961.  Assignment  of  Errors  to  Be  Filed. — Before,  or  at  the  time 
of,  the  allowance  of  an  appeal,  an  assignment  of  errors  must  be  filed.  This 
assignment  of  errors  is  indispensable  and  cannot  be  waived,  and  if  not 
filed  the  appeal    will  be  dismissed. ^^^ 

And  where  the  assignment  of  errors  is  in  such  general  form  as  not  to 
sufficiently  indicate  the  particular  error  complained  of  as  required  by 
Rule  XI,  the  court  will  not  take  cognizance  of  them;  but  in  special  cir- 
cumstances may  allow  an  amendment,  if  prompt  application  therefor  be 
raade.i^*^ 

§  2962.  Complete  Record  to  Be  Made. — A  complete  record  must  be 
made  up  and  it  must  contain  within  itself,  and  not  by  reference,  all  the 
papers,  exhibits,  depositions  and  other  proceedings  which  are  necessary 
to  the  hearing.  ^^1 

Dodge  V.  Norlin,  13  A.  B.  R.  176,  133  Fed.  363  (C.  C.  A.  Colo.):  "An  appeal 
makes  the  entire  record  available  to  the  appellant,  and  imposes  the  duty  upon 
him,  and  upon  the  clerk  of  the  lower  court,  to  place  the  material  parts  of  it  ia 
the  transcript  sent  to  the  appellate  court." 

§  2963.  Need  Certify  Only  So  Much  as  Sufficient  to  Exhibit  Er- 
rors.— While  appeal  makes  available  the  entire  record,  it  is  only  neces- 
sary that  so  much  of  it  as  will  exhibit  the  manner  in  which  the  question 
arose,  and  its  determination,  be  certified. ^-^^ 

149.  Lockman  v.  Lang,  11  A.  B.  R.  597,  128  Fed.  279   (C.  C.  A.  Colo.). 

Rule  XI  of  Circuit  Court  of  Appeals:  "The  plaintiff  in  error  or  appellant 
shall  file  with  the  clerk  of  the  court  below,  with  his  petition  for  the  writ 
of  error  or  appeal,  an  assignment  of  errors  which  shall  set  out  separately  and 
particularly  each  error  asserted  and  intended  to  be  urged.  No  writ  of  error 
or  appeal  shall  be  allowed  until  such  assignment  of  errors  shall  have  been 
filed." 

U.  S.  Rev.  Stats..  §  997.  Flickinger  v.  Nat'l  Bk.,  16  A.  B.  R.  679,  145  Fed. 
162  (C.  C.  A.  Ohio). 

150.  Flickinger  r.  Nat'l  Bk.,  16  A.  B.  R.  679,  145   Fed.   162   (C.   C.  A.  Ohio). 
Allowance   Conditioned  on  Giving  Bond. — Allowance  of  appeal   on   condition 

that  bond  is  given  by  petitioner  does  not  become  effective  until  the  bond  is 
given  and  accepted,  and  the  filing  of  an  assignment  of  errors  before  or  at  the 
time  of  the  approval  of  the  bond  is  a  filing  within  the  time  prescribed  by  the 
rule.      Lockman  v.   Lang,   11    A.    B.   R.   597.   128   Fed.   279    (C.    C.   A.    Colo.), 

Single  Assignment  Sufficient  Where  Error  and  Appeal  Simultaneously  Pros- 
ecuted.— Where  appeal  and  error  are  prosecuted  simultaneously  to  review  the 
same  rulings  and  the  alleged  errors  are  the  same  in  both,  a  single-  assignment 
of  errors  is  all  that  is  necessary  in  order  to  comply  with  rule  11.  Lockman 
V.  Lang,  11  A.   B.  R.  597,  128  Fed.  279   (C.  C.  A.  Colo.). 

151.  Williams  Bros.  v.  Savage,  9  A.  B.  R.  723,  120  Fed.  497  (C:  C.  A.  Va.); 
In  re  Robertshaw  Mfg.  Co.,  14  A.  B.  R.  341,  135  Fed.  220  (D.  C.  Pa.);  Devries 
V.  Shanahan,  10  A.  B.  R.  518,  122  Fed.  629  (C.  C.  A.  Md.) ;  impliedly,  Flick- 
inger V.  Nat'l  Bk.,  16  A.  B.  R.  678,  145  Fed.  162  fC.  C.  A.  Ohio);  In  re  Richards, 

3  A.  B.   R.  145,  96   Fed.  935   (C.   C.  A.  Wis.);  impliedly,  Cunningham  v.   Bank, 

4  A.  B.  R.  192,  103  Fed.  932  (C.  C  A.  Ky.) ;  inferentiallv,  'in  re  Baker, 
4  A.  B.  R.  778,  104  Fed.  287  (C.  C.  A.  Mass.);  'inferentially.  In 
re  O'Connell  (In  re  Dow),  14  A.  B.  R.  237,  137  Fed.  838  (C.  C.  A.  Mass.),  quoted 
ante,  §  2948. 

152.  Dodge  v.  Norlin,  13  A.  B.  R.  176,  133  Fed.  363  (C.  C.  A.  Colo.).  Im- 
pliedly, In  re  Richards,  3  A.  B.  R.  145,  96  Fed.  935  (C.  C.  A.  Wis.).  Cunning- 
ham V.  Bank,  4  A.   B.   R.  192,  103   Fed.  932   (C.   C.  A.  Ky.) 


^  2967  re;vie\v  ix  circuit  court  of  appeals.  1727 

In  re  Robertshaw,  14  A.  B.  R.  341,  135  Fed.  220  (D.  C.  Pa.):  "The  petition 
of  the  Imperial  Woolen  Company  upon  which  this  rule  was  granted,  sets  forth 
such  parts  of  the  record  as  they  regard  sufficient  for  a  full  and  complete  under- 
standing of  the  case  in  the  appellate  court,  and  we  are  of  the  opinion  that  their 
judgment  is  right  in  this  respect."' 

§  2964.  But  Discretion  of  Parties  in  Making  Up  Record  Not  to 
Be  Interfered  with. — But  the  discretion  of  the  parties  as  to  what  is  es- 
sential should  not  be  interfered  with  by  the  court  whose  error  is  com- 
l^lained  of. 

In  re  Robertshaw,  14  A.  B.  R.  341,  135  Fed.  220  (D.  C.  Pa.):  "*  *  *  but 
we  know  of  no  law  which  authorizes  the  court,  from  which  an  appeal  is  taken, 
to  designate  what  records  in  the  court  below  shall  be  certified  upon  which  the 
appellate  court  shall  determine  the  appeal;  in  fact,  the  judge  of  the  court 
from  which  the  appeal  is  taken  ought  not  in  the  least  interfere  in  the  discretion 
allowed  by  the  general  terms  used  in  the  acts  of  Congress  and  rules-  of  court 
in  designating  the  record  to  be  certified  in  cases  of  appeal,  as  his  judgment  is 
to  be  reviewed,  and  his  opinion  of  the  importance  and  relevancy  of  matters 
contained  in  the  record  might,  in  the  estimation  of  counsel  for  one  side  or  the 
other,  be  as  faulty  as  it  is  claimed  his  judgment  is  from  which  an  appeal  is  taken, 
and  if  an  order  of  the  court  from  which  the  appeal  is  taken  could  have  the  effect 
of  restricting  the  record  in  all  cases  where  such  a  decree  had  been  made,  there 
would  be  the  possibility  of  a  feeling  upon  the  one  side  or  the  other  that  they  had 
not  secured  a  fair  hearing  on  a  full  record." 

It  has  been  held  that  an  appeal  from  an  order  granting  a  discharge  will 
be  dismissed  where  it  is  impossible  to  tell  from  the  record  whether  any 
of  the  steps  to  perfect  the  appeal  were  taken  in  proper  time  nor  when 
they  were  taken. ^^^ 

§  2965.  Parties  May  Stipulate  as  to  What  Necessary. — The  parties 
tnay  stipulate  as  to  what  is  necessary  and  thus  dispense  with  the  entire 
record. ^^^  But  this,  doubtless,  would  be  subject  to  the  correction  of  the 
court  appealed  from,  to  supply  omissions  or  corrections. 

§  2966.  Must  Be  Stipulated  or  Certified  That  Complete  Record 
of  All  Necessary.- — It  must  appear,  either  by  stipulation  or  by  certificate 
of  the  district  clerk,  that  it  is  a  full  and  complete  record,  or  that  it  con- 
tains all  that  is  necessary  to  the  determination  of  the  matters  involved. ^^^ 

§  2967.  Record  Imports  Verity,  May  Not  Be  Contradicted,  Ex- 
plained or  Extended  by  Evidence  Dehors. — The  record,  on  review  or 

153.  Williams  Bros.  v.  Savage,  9  A.  B.   R.  720,  120  Fed.  497   (C.  C.  A.  Va.). 

154.  Obiter,  In  re  Robertshaw,  14  A.  B.  R.  341,  135  Fed.  220  (D.  C.  Pa.); 
impliedlv,  Cunningham  v.  Bk.,  4  A.  B.  R.  192,  103  Fed.  932   (C.   C.  A.   Ky.). 

155.  Cunningham  v.  Bank,  4  A.  B.  R.  192,  103  Fed.  932   (C.  C.  A.  Ky.). 
Certificate   must  be   that   of   district  clerk,   not   of   referee  or   special   master. 

Coal  Fields  Co.  v.  Caldwell,  17  A.  B.  R.  139,  147  Fed.  475  (C.  C.  A.  W.  Va.). 


1728  REMINGTON  ON  BANKRUPTCY.  §  2968 

appeal,  imports  absolute  verity,  and  may  not  be  contradicted,  explained  or 
extended  by  evidence  dehors  the  record. ^•'•^ 

§  2968.    Remedies  for  Incomplete  Transcript  on  Appeal. — If  the 

certificate  of  the  clerk  of  the  district  court  does  not  show  that  the  record 
is  full  and  complete,  the  appeal  should  not  be  dismissed,  but  the  record 
should  be  completed. 

Cunningham  v.  Bank,  4  A.  B.  R.  192,.  103  Fed.  9.32  (C.  C.  A.  Ky.)  :  "Counsel 
insist  that  as  the  transcript  does  not  purport  to  be  a  full  record,  nor  a  record 
composed  of  such  part  of  the  record  as  has  been  agreed  upon  by  stipulation 
or  directed  by  the  court,  and  that  it  is  not  a  'legal  record,'  and  that  the  appeal 
should  be  dismissed  upon  the  authority  of  ]\Ieyer  et  al.  z'.  Mansur  &  Tebbetts 
Implement  Compan}'.  decided  bj^  the  Circuit  Court  of  Appeals  for  the  Fifth 
Circuit,  and  reported  in  29  C.  C.  A.  46.5,  and  8.5  Fed.   874. 

"In  Railroad  Company  z\  Schutte,  100  U.  S.  644,  we  find  authority  or  a  less 
vigorous  rule.  The  transcript  in  that  case  had  been  made  up  of  such  papers 
and  evidence  as  the  appellant  deemed  necessary  for  the  hearing  of  the  matter 
involved  by  the  appeal.  The  clerk  certified  that  it  was  a  transcript  of  such  p^trts 
of  the  record  as  were  'necessary  on  the  hearing  of  the  appeal  orayed  r;nd  al- 
lowed in  said  cause.'  It  was  urged  by  the  appellee  that  much  that  was  impor- 
tant had  been  omitted,  and  the  court  was  removed  to  dismiss  the  appeal  because 
no  properly  certified  transcript  had  been  filed.  This  the  court  declined  to  do, 
but  ordered,  "that  the  appellees  file  with  the  clerk  of  this  court,  pp.d  with  rlie 
counsel  for  the  appellant,  on  or  before  the  first  day  of  February  next,  a  state- 
ment of  the  papers,  documents  and  proofs  used  on  the  hearing  below,  and 
omitted  in  the  transcript  now  on  file,  which  they  deem  necessary  for  the  proper 
presentation  of  the  cause,  and  that  unless  the  appellant  shall,  on  or  before  the 
15th  day  of  March,  file  in  this  court  as  part  of  the  record  copies  of  such  papers, 
duly  certified  by  the  clerk  of  the  Circuit  Court,  or  his  deputy,  under  the  seal  of 
the  court,  this  appeal  be  dismissed.  If  in  this  way  unnecessary  papers  are 
brought  up,  we  will,  on  application,  make  such  order  in  respect  to  costs  as  may 
under  the  circumstances  be  proper.' 

"It  is  desirable  that  a  transcript  sent  to  this  court  upon  appeal  shall  contain 
no  immaterial  matter,  and  the  third  paragraph  of  the  fourteenth  rule  of  this 
court  prescribes  that,  'No  case  will  be  heard  until  a  complete  record,  contain- 
ing in  itself,  and  not  by  reference,  all  the  papers,  exhibits,  depositions  and  other 
proceedings  which  are  necessary  to  the  hearing  in  this  court  shall  be  filed.' 

"It  is  manifest  that  neither  the  counsel  for  the  appellant  nor  the  clerk  can 
conclusively  determine  what  parts  are  'necessary  to  the  hearing  in  this  court.' 
When,  therefore,  the  certificate  does  not  show  the  record  is  a  full  and  complete 
record  of  the  entire  proceedings,  it  ought  to  appear  by  stipulation  or  otherwise 
that  it  does  include  all  that  is  necessary  to  a  determination  of  the  matters  in- 
volved by  the  appeal,  and  if  the  appellee  is  not  content  with  the  transcript  as 
filed,  he  should  seasonably  move  the  court  to  require  the  appellant  to  complete 
the  record  by  filing  a  transcript  of  such  other  papers  and  evidence  as  he  deems 
necessary  and  points  out." 

156.    In   re   McCall,   16   A.   B.   R.   670.   145   Fed.   898    (C.   C.   A.   Tenn.). 

Supplementing  Facts  Shown  on  Record. — The  facts  shown  on  the  record 
may  be  supplemented  by  other  facts  than  those  shown  therein  under  certain 
circumstances,  it  is  held  in  some  cases.  Ex  parte  Cuddv.  131  U.  S.  280;  Ex 
parte   O'Xcal,  11   A.   B.   R.   196,   125   Fed.  967    (C.   C.   A.   Fla.). 


§    2971  REVIEW  IN  CIRCUIT  COURT  OF  APPEALS.  "  1729 

Upon  a  disagreement  as  to  what  the  record  shall  contain,  the  best  prac- 
tice requires  the  appellant  to  file  a  precipe  with  the  clerk,  pointing  out 
specifically  what  records  in  his  judgment  are  necessary  to  be  certified; 
and  if  the  appellee  deems  these  insufficient,  he  may  suggest  a  diminution 
of  the  record  and  ask  for  a-  certiorari. ^^t  if  ^  party  to  the  appeal  is 
aggrieved  by  want  of  sufiicient  record,  he  may  move  the  court  to  require 
a  more  complete  record  to  be  transmitted. ^^^ 

In  such  motion,  the  mover  should  point  out  the  papers  or  other  neces- 
sary matters  in  evidence  that  have  been  omitted. ^'^^ 

In  re  Robertshaw  Mfg.  Co.,  14  A.  B.  R.  341,  135  Fed.  220  (D.  C.  Pa.):  "The 
best  practice  is  to  require  the  appellant  to  file  a  precipe  with  the  clerk,  pointing 
out  specifically  what  records  in  his  judgment  are  necessary  to  be  certified  on  the 
appeal." 

Where  there  is  not  an  entire  lack  of  an  assignment  of  errors  but  the 
transcript  on  appeal  is  imperfect,  in  that  it  does  not  contain  all  the  evi- 
dence on  wdiich  the  cause  was  decided,  the  transcript  may  not  be  stricken 
from  the  files,  but  the  remedy  is  an  application  to  the  court  for  a  cer- 
tiorari, to  send  up  the  missing  matter. ^^*^' 

The  court  below,  may,  by  nunc  pro  tunc  order,  correct  the  record  to 
conform  to  the  facts,  upon  suggestions  of  diminution  thereof. ^^^ 

§  2969.  Whether  Findings  of  Fact  Requisite  on  Appeal. — Whether 
findings  of  fact  are  requisite  on  appeal  is  not  settled. ^^- 

That  they  are  demandable  as  of  right,  at  least  on  the  three  subjects  of 
adjudication  of  bankrirptcy,  discharges  and  allowances  and  rejections  of 
claims  under  §  25  (a),  has  been  held;  and,  again,  it  has  been  held  that 
they  are  not  demandable. ^^^ 

§  2970.  Record  to  Show  Assignment  of  Errors,  Prayer  for  Re- 
versal and  Citation. — The  record  must  show  the  assignment  of  errors, 
the  prayer  for  reversal  and  the  citation  to  the  adverse  party. 

Lockman  z:  Lang,  11  A.  B.  R.  597,  128  Fed.  279  (C.  C.  A.  Colo.):  "When  an  ap- 
peal is  prayed  and  allowed  in  open  court  the  prayer  for  reversal  and  the  cita- 
tion may  be  waived  but  the  assignment  of  errors  is  indispensable  to  the  per- 
fection of  the  appeal." 

§  2971.  Prayer  for  Reversal  and  Citation  Waivable,  but  Assign- 
ment of  Errors  Not. — P.ut  if  the  prayer  for  reversal  and  the  citation  are. 

157.  In  re  Robertshaw  Mfg.  Co.,  14  A.  B.  R.  341,  135  Fed.  220  (D.  C.  Pa.). 

158.  Cunningham  z:  Bank,  4  A.  B.  R.  192,  103  Fed.  932  (C.  C.  A.  Ky.); 
Flickinger  v.  Xat'l   Bk.,  16  A.  B.   R.  679,  145   Fed.  162   (C.   C.   A.   Ohio). 

159.  Cunningham  v.  Bank,  4  A.  B.  R.  192,  103  Fed.  932  (C.   C.  A.  Ky.). 

160.  Flickinger  z:  Nat'l   Bk.,  16  A.   B.   R.  679,   145   Fed.   162   (C.   C.   A.   Ohio). 

161.  Hays  v.   Wagner,   18  A.   B.   R.   163    (C.    C.   A.   Ohio). 

162.  In  re  Rauchenplat,  9  A.  B.  R.  766,  1  P.  R.  441  (D.  C.  Porto  Rico). 

163.  In  re  Meyers,  5  A.  B.  R.  4,  105  Fed.  353  (D.  C.  N.  Y.). 

2  Rem  B— 34 


1730  REMINGTON  ON  BANKRUPTCY.  §  2974 

waived,   it   will   be   sufficient   if   the   record   shows   such   waiver. ^'^■*      The 
assignment  of  errors,  however,  cannot  be  waived. ^"^'^ 

§  2972.  Also,  Time  of  Perfecting  of  Appellate  Proceedings. — The 

record  also  must  show  the  time  when  the  proceedings  were  perfected.^*^** 

§  2973.  Citation  May  Be  Granted  after  Expiration  of  Appeal  Time. 

■ — A  citation  is  not  jurisdictional  and  may  be  granted  after  the  time  to 
appeal  has  expired.  • 

Lockman  v.  Lang,  12  A.  B.  R.  497,  132  Fed.  1  (C.  C.  A.  Colo.):  "A  citation 
is.  not  jurisdictional.  Where  an  appeal  has  been  allowed  by  the  taking  of  se- 
curity within  the  statutory  time,  and  the  transcript  of  the  record  has  been  filed 
and  the  case  has  been  docketed  at  the  proper  term  of  the  appellate  court,  the 
failure  to  issue  a  citation  within  the  time  prescribed  for  the  appeal  does  not 
detract  from  the  jurisdiction  of  the  reviewing  court,  or  furnish  ground  for  a 
dismissal  of  the  appeal,  but  the  appellate  court  will  grant  an  opportunity  to  is- 
sue and  serve  a  citation." 

§  2974.  Record  Sufficient  if  Contains  All  on  Which  District  Court 
•  Acted  if  Not  All  on  Which  Referee  Acted. — It  is  the  district  court's 
order  that  is  being  reviewed  or  appealed  from,  in  the  circuit  court  of 
appeals,  not  the  referee's  order;  and  so  the  record  is  complete  if  it  con- 
tains all  the  evidence  on  which  the  district  court  acted,  even  if  it  does 
tfot  contain  all  the  evidence  on  which  the  referee  acted. 

Cunningham  v.  Bank,  4  A.  B.  R.  192,  103  Fed.  933  (C.  C.  A.  Ky.) :  "The  doc- 
uments and  proofs  desired  by  the  appellee  constituted  the  original  evidence 
upon  which  the  referee  made  the  findings  and  orders  which  were  subsequently 
reviewed  by  the  judge  below,  is  not  denied.  But  that  review,  so  far  as  appears 
from  the  transcript  on  file,  or  the  affidavit  which  is  the  foundation  of  the  motion 
now  under  consideration,  was  not  made  upon  the  original  documents  or  other 
proofs  which  were  before  the  referee,  but  upon  a  certificate  of  the  questions 
presented  and  a  summary  of  the  evidence  which  related  to  those  questions  as 
provided  by  the  Twenty-seventh  General  Order  in  Bankruptcy.  Thai  order  is 
as  follows: 

"  'When  a  bankrupt,  creditor,  trustee  or  other  person  shall  desire  a  review  by 
the  judge  of  any  order  made  by  the  referee,  he  shall  file  with  the  referee  his 
petition  therefor,  setting  out  the  error  complained  of;  and  the  referee  shall 
forthwith  certify  to  the  judge  the  question  presented,  a  summary  of  the  evi- 
dence relating  thereto,  and  the  finding  and  order  of  the  referee  thereon.' 

"This  order  is  based  upon  the  fifth  paragraph  of  the  39th  section  of  the  Bank- 
ruptcy Act  of  1898,  which,  among  other  duties  of  the  referee,  requires  that  they 
shall  make  up  records,  'embodying  the  evidence,  or  the  substance  thereof,  as 
agreed  upon  by  the  parties  in  all  contested  matters  arising  before  them,  when- 

164.  Lockman  t'.  Lang,  11  A.  B.  R.  597,  128  Fed.  279   (C.   C.  A.   Colo.). 

165.  Lockman  7'.  Lang,  11   A.  B.  R.  597,  128  Fed.  279   CC.   C.  A.   Colo.). 

166.  Williams  Bros.  z'.  Savage,  9  A.  B.  R.  720,  120  Fed.  497  (C.  C.  A.  Va.). 
vSce    post,    §    2983. 

When  are  appeal  proceedings  perfected?     See  post,  §  2978. 


§   2977  REVIEW  IX  CIRCUIT  COURT  OF  APPEALS.  1731 

ever  requested  to  do  so  by  either  of  the  parties  thereto,  together  with  their 
findings  therein,   and  transmit  them   to  the  judge.' 

"Following  the  practice  prescribed  by  the  Twenty-seventh  General  Order,  the 
appellants  and  appellee  filed  their  respective  petitions,  setting  out  the  errors 
complained  of,  and  praying  that  the  referee  would  certify  the  questions  pre- 
sented, 'and  a  summary  of  the  evidence  relating  thereto  and  the  finding  and 
order  of  the  referee  thereon.' 

"This  the  referee  did,  and  at  the  instance  of  the  appellee  he  amended  his  cer- 
tificate by  certifying  certain  additional  facts  desired  as  part  of  the  summary  of 
evidence.  This  certificate  and  summary  are  found  in  the  record  as  certified, 
and"  no  exception  appears  to  have  been  taken,  either  before  the  referee  or  court, 
to   the   sufficiency  and  completeness  thereof. 

"In  the  absence  of  some  order  of  the  court  below  we  must  presume  that  the 
hearing  in  the  district  court  was  upon  the  summary  of  the  evidence,  thus 
certified  by  the  referee,  and  that  the  original  evidence  now  sought  to  be  made 
part  of  the  transcript  constituted  no  part  of  the  record  in  the  court  below. 

"•The  clear  purpose  of  the  provisions  of  the  39th  section,  set  out  above  was 
to  avoid,  as  far  as  possible,  the  sending  of  the  original  proofs  to  the  judge  and 
to  substitute  therefor,  where  the  ends  of  justice  would  permit,  a '  summary 
thereof. 

"To  effectuate  this  object  is  the  purpose  of  the  General  Order  already  re- 
ferred to.  Undoubtedly  it  was  entirely  within  the  competency  of  the  judge  at 
request  of  either  party  to  have  directed  the  filing  of  all  or  any  part  of  the 
original  documents  or  proofs  which  were  on  file  with  the  referee.  Nothing 
before  us  indicates  that  any  eflfort  was  made,  either  before  the  referee  or  judge, 
to  supplement  the  summary  of  evidence  certified  to  the  judge  in  accordance 
with  the  terms  of  the  General  Order,  and  in  this  condition  of  things  we  think 
the  present  application   should   be   denied."' 

§  2975.    Record  to  Be  Printed. — The  record  must  be  printed. i*^" 

SUBDIVISION    "q." 

Security  for  Appeal  axd  Review. 

§  2976.    Bon&  Not  Requisite,  on  Petition  for  Revie"w,  Except. — 

But,  in  the  absence  of  local  rule  of  court  and  of  any  showing  that  any 
parties'  rights  will  suffer,  no  bond  need  be  given  by  petitioner  in  error  for 
review  under  §  24  (b).^^^ 

§  2977.  But  Requisite  on  Appeal. — The  giving  and  approval  of  se- 
curity is  necessary  in  order  to  perfect  an  appeal  (except  when  the  trustee 
appeals  ).^*^  9 

167.  Williams  Bros.  v.   Savage.  9  A.   B.   R.  720,   120   Fed.  497   (C.   C.   A.   Va.). 

168.  Drug  Co.  V.   Drug  Co.,   14  A.   B.   R.   477,   136   Fed.   396    (C.   C   A.   Tex.). 

169.  Rev.  Stat.  U.  S.,  §  1000.  Compare,  In  re  Dresser,  14  A.  B.  R.  41,  43  (Ref. 
N.  Y.). 

A  bond  on  appeal  from  an  order  of  involuntarj^  adjudication  is  sufificient 
although  it  runs  only  to  the  original  petitioning  creditors,  although  other 
petitioning  creditors  had  joined.  Flickinger  v.  Xat'I  Ek.,  16  A.  B.  R.  678, 
145   Fed.   162   (C.   C.  A.   Ohio). 


1732  REMINGTON    ON    BANKRUPTCY.  ^    2981 

Credit  Company  v.  Ark.  Central  Ry.  Co.,  128  U.  S.  261  (cited  in  Williams 
Bros.  v.  Savage,  9  A.  B.  R.  723,  120  Fed.  -197  (C.  C.  A.  Va.):  "An  appeal  cannot 
be  said  to  be  taken,  any  more  than  a  writ  of  error  can  be  said  to  be  brought, 
until  it  is  in  some  way  presented  to  the  court  which  made  the  decree  appealed 
from,  thereby  putting  an  end  to  its  jurisdiction  over  the  cause,  and  making  it 
its  duty  to  send  it  to  the  appellate  court.  This  is  done  by  filing  the  papers 
with  the  petition  and  allowance  of  the  appeal,  if  there  be  such  a  petition  and 
allowance,  and  the  appeal  bond  and  citation." 

§  2978.  And  Approval  of  Security,  Perfects  and  "Allows"  Appeal. 

— And  the  approval  of  the  security  perfects  the  appeal ;  and  is  the  "al- 
lowance" of  the  appeal.^"'' 

§  2979.  Perfecting  Appeal  Transfers  Jurisdiction  and  No  Further 
Steps  Possible. — The  perfecting  of  the  appeal  effects,  ipso  facto,  a 
transfer  of  jurisdiction  to  the  appellate  court.  It  suspends  the  case  in  the 
lower  court,  and  no  steps  therein  can  be  taken  during  the  pendency  of  the 
appeal.  ^^^ 

First  Nat'l  Bk.  v.  State  Xat.  Bk.,  12  A.  B.  R.  440,  131  Fed.  422  (C.  C.  A. 
Mont.)  :  "The  overwhelming  weight  of  authority  of  the  State  courts  is  that  an 
appeal,  properly  perfected,  absolutely  removes  the  case  from  the  trial  court, 
and  places  it  in  the  appellate  tribunal.  The  case  must,  of  necessity,  either  be 
in  the  appellate  or  lower  court.  It  cannot  very  well  be  in  both  courts  at  the 
same  time.  Such  a  course  would  lead  to  endless  confusion.  Under  all  the  or- 
dinary rules  of  practice,  the  appellate  court  alone  would  have  the  jurisdiction. 
After  the'  cause  leaves  the  lower  court,  it  is  deprived  of  taking  any  action  upon 
any  question  involved  in  the  appeal.  Many  of  the  authorities  in  the  State 
courts  upon  this  point  are  collected  and  cited  in  Elliott's  App.  Proc,  §  541. 
The  Federal  authorities  are  substantially  to  the  same  effect. " 

Lockman  v.  Lang,  12  A.  B.  R.  497,  132  Fed.  1  (C.  C.  A.  Colo.) :  "An  appeal  is  a 
matter  of  right,  and  it  is  allowed  and  the  jurisdiction  of  the  case  is  transferred 
to  the  appellate  court  by  the  acceptance,  by  the  proper  court  or  judge,  of 
security  upon  the  appeal,  within  the  time  fixed  by  the  statute." 

§  2980.  Trustee  Need  Not  Give  Bond. — The  trustee  need  not  give 
security  on  appeal  or  review. ^"- 

SUBDIVISION    "d." 

Time  for  ArPEAL  and  Review  to  the  Circuit  Court  of  Appeals. 

§  2981.    Time  for  Appeal  in  Bankruptcy  Proceedings  Proper. — 

Appeals  to  the  circuit  court  of  appeals  in  bankruptcy  proceedings  proper 

170.  Credit  Co.  z'.  Ark.  Central  R'y  Co.,  128  U.  S.  261;  Lockman  z:  Lang, 
13  A.  B.  R.  497,  132  Fed.  1  (C.  C.  A.  Colo.),  quoted  post,  §  2979;  Williams  Bros. 
V.  Savage,  9  A.  B.  R.  732,  120  Fed.  497  (C.  C.  A.  Va.). 

171.  Impliedly,  Williams  Bros.  v.  Savage,  9  A.  B.  R.  723,  120  Fed.  497  (C.  C. 
A.    Va.). 

172.  Bankr.  Act,  §  25  (c) ;  In  re  Dresser  &  Co.,  14  A.  B.  R.  41  (Ref.  N.  Y.). 
In  re  Barrett,  12  A.  B.  R.  626,  132  Fed.  362   (D.   C.  Tenn.). 


§   2986  REVIEW  IX  CIRCUIT  COURT  OF  APPEALS.  1733 

must   be   taken   within   ten   days   after   the   judgment   appealed    from  has 
been  rendered. ^'^ 

§  2982.   May  Be  Heard  by  Appellate  Court  in  Term  or  Vacation. 

— And  may  be  heard  and  determined  by  the  appellate  court  in  term  or  va- 
cation as  the  case  may  be.^''^ 

The  provisions  of  section  25  (a)  limiting  the  time  for  appeal  to  ten  days, 
apply  exclusively  to  appeals  in  bankruptcy  proceedings  proper,  and  to  the 
three  cases  mentioned  in  the  statute  allowing  appeals  in  bankruptcy  pro- 
ceedings proper. i~5 

§  2983.  Record  to  Show  Time  of  Appeal. — And  the  record  must 
show  the  time.^''^ 

§  2984.  Date  of  Entering  Order  or  Judgment,  Not  of  Actual  Ren- 
dition, Fixes  Date. — The  date  of  the  filing  of  the  order  with  the  clerk 
or  the  entry  of  judgment,  and  not  the  date  of  the  actual  rendition  of  the 
order  or  judgment,  fixes  the  time  for  appeal  and  writ  of  error. ^'^" 

§  2985.  Appeal  Not  "Taken"  until  "Allowance"  Made,  and  Bond 
and  Citation  Filed. — An  appeal  is  not  "taken,"  within  the  meaning  of 
§  25  (a),  until  the  petition  and  allowance  of  appeal  are  made,  where  there 
is  such  petition  and  allowance,  and  the  appeal  bond  and  citation  are  filed, 
in  the  court  which  made  the  decree  appealed  from.^'^ 

§  2986.  But  Delay  in  Bond  and  Citation  Not  Fatal,  if  Appeal  "Al- 
lowed" in  Time. — If  the  appeal  is  allowed  in  time,  but  delay  occurs  in 
filing  the  bond  and  serving  the  citation  to  perfect  the  appeal,  the  appeal 
will  not  be  dismissed. ^"^ 

Columbia  Iron  Wks.  v.  Nat'l  Lead  Co.,  11  A.  B.  R.  340  (C.  C.  A.  Mich.): 
■'It  appears  that  the  appeal  was  prayed  and  allowed  within  ten  days,  as  pre- 
scribed by  the  act,  but  that  the  bond  was  not  filed,  nor  the  citation  issued  and 

173.  Bankr.  Act,  §  25  (a).  Williams  Bros.  v.  Savage,  9  A.  B.  R.  720,  120 
Fed.  497  (C.  C.  A.  Va.);  In  re  Good,  3  A.  B.  R.  604,  94  Fed.  389  (C.  C.  A. 
Mo.);  Norcross  v.  Nave,  4  A.  B.  R.  317,  101  Fed.  796  (C.  C.  A.  IVJo.). 

174.  Bankr.  Act,  §  25  (a);  Williams  Bros.  v.  Savage,  9  A.  B.  R.  720,  120  Fed. 
497   (C.   C.   A.  Va.). 

175.  Boonville  Nat'l  Bk.  v.  Blakey,  6  A.  B.  R.  13,  107  Fed.  891  (C.  C.  A. 
Ind.);   Steele  v.   Buel,   5  A.   B.  R.   165,  104   Fed.   988   (C.   C.  A.   Iowa). 

176.  Williams  Bros.  v.  Savage,  9  A.  B.  R.  720,  120  Fed.  497  (C.  C.  A.  Va.). 
See    ante,   §    2972. 

177.  U.  S.  Rev.  Stats.  §  1008;  Peterson  v.  Nash  Bros.,  7  A.  B.  R.  181,  112 
Fed.  311  (C.  C.  A.  Minn.);  In  re  McCall.  16  A.  B.  R.  670,  145  Fed.  898  (C.  'C. 
A.  Tenn.);  impliedly,  Norcross  v.  Nave,  4  A.  B.  R.  317,  101  Fed.  796  (C.  C.  A. 
Mo.). 

178.  Norcross  v.  Nave,  4  A.  B.  R.  317,  101  Fed.  796  (C.  C.  A.  Mo.).  But 
compare  (citation  and  bond  not  jurisdictional).  In  re  Hill  Co.,  17  A.  B.  R. 
519    (C.    C.   A.    Ills.).     Also   compare,   ante,   §   2973. 

179.  In  re  Hill  Co.,  17  A.  B.   R.  518  (C.  C.  A.  Ills.). 


1734  REMINGTON  ON  BANKRUPTCY.  §  2987 

served,  until  a  few  days  after  the  expiration  of  the  ten  days.  But  the  general 
rule  is  that  when  an  appeal  is  allowed  within  the  time  prescribed  by  law  it  is 
sufificient  for  the  purpose  of  removing  the  case,  though  it  is  necessary,  in  order 
to  perfect  the  appeal,  that  a  bond  should  be  filed  and  that  a  citation  should  be 
issued  and  served,  where,  as  in  this  case,  the  appeal  is  not  praj^ed  in  open  court. 
The  filing  of  the  bond  and  the  service  of  the  citation  are  steps  to  be,  taken  in 
perfecting  the  appeal,  and  if  these  steps  are  taken  before  a  motion  to  dismiss 
the  appeal  is  made,  the  court  will  ordinarily  decline  to  dismiss  the  appeal  be- 
cause of  the  delay  in  filing  the  bond  and  serving  the  citation.  In  the  present 
case  the  delay  was  for  a  few  days  only,  and  we  do  not  think  the  interests  of 
the  opposite  party  were,  to  any  appreciable  extent,  impaired  thereb3^  The  mo- 
tion to  dismiss  upon  that  ground  is,  therefore,  denied." 

Indeed,  it  is  doubtful  whether  citation  and  bond  are  jurisdictional. 

In  re  Hill  Co.,  17  A.  B.  R.  518  (C.  C.  A.  Ills.):  "The  general  rule  is  established, 
as  stated  by  this  court  in  [NIcNulta  v.  West  Chicago  Park  Com'rs,  99  Fed. 
328,  that  no  citation  is  required  'when  an  appeal,  is  allowed  in  open  court  at 
the  same  term  when  the  decree  was  rendered.'  In  appeals  in  bankruptcy,  how- 
ever, this  rule  may  not  be  applicable,  for  the  reason  that  there  are  no  stated 
terms  of  the  bankruptcy  court,  as  such,  but  the  jurisdiction  is  exercised  by  the 
district  courts  throughout  the  proceedings  (§  2).  'In  vacation,  in  chambers  and 
during  their  respective  terms.'  Thus  each  'proceeding  in  bankruptcy,  from  its 
commencement  to  its  close  upon  the  final  settlement,  is  but  one  suit.'  Wis- 
well  V.  Campbell,  93  U.  S.  347,  348. 

"The  contention  is  that  an  appeal  in  such  cases,  not  allowed  instanter,  is  not 
'taken,'  within  the  meaning  of  §  25a,  unless  a  citation  issues  and  bond  is  filed 
within  the  ten  days.  Whether  a  citation  is  needful,  by  way  of  notice  to  the 
parties,  in  any  appeal  in  bankruptcy,  may  not  be  clear  under  the  authorities; 
and  the  cases  cited  for  and  against  the  present  motions  are  not  harmonious 
in  reference  to  citation  or  bond,  as  requisites  to  confer  jurisdiction  of  any  ap- 
peal. In  Jacobs  v.  George,  150  U.  S.  415,  416;  and  Mattingly  v.  N.  W.  Virginia 
Railroad,  158  U.  S.  53,  however,  the  general  doctrine  is  established  for  appeals 
in  equity  that  'neither  signing  nor  service  of  the  citation  is  jurisdictional,  its 
only  office  being  to  give  notice  to  the  appellees,'  and  that  failure  or  defects 
therein  may  be  cured  after  the  time  limited  for  appeal.  Like  rule  is  applied  to 
perfect  the  bond  for  appeal.  Edmonson  v.  Bloomshire,  7  Wall.  306,  311;  Peugh 
V.  Davis,  110  U.  S.  227,  228.  Under  these  decisions,  the  Circuit  Court  of  Ap- 
peals of  the  Sixth  Circuit  so  ruled  in  reference  to  appeal  in  bankruptc)^  in 
Columbia  Iron  Works  v.  National  Lead  Co.,  11  Am.  B.  R.  340,  127  Fed.  99,  101; 
and  as  well  the  Circuit  Court  of  Appeals  of  the  Eighth  Circuit  in  Lockman  v. 
Lang,  12  Am.  ^.  R.  497,  132  Fed.  1,  3,  and  Gray  v.  Grand  Forks  Mercantile  Co., 
14  Am.  B.  R.  780,  138  Fed.  344,  346.  We  concur  in  the  view  that  bankruptcy 
appeals  are  within  the  rule  thus  stated,  so  that  citation  and  bond  are  not  juris- 
dictional requisites,  and  the  motion  to  dismiss  is  overruled." 

§  2987.  Application  for  Extension  Too  Late  after  Expiration 
Time. — Applications  for  extension  of  time  for  filing  come  too  late  when 
made  after  the  expiration  of  the  time.^^*^ 

180.  In  re  Alden  Electric  Co.,  10  A.  B.  R.  370,  123  Fed.  415  (C.  C.  A.).  Com- 
pare, inferentially,  to  same  effect.  In  re  Scott,  3  A.  B.  R.  326,  99  Fed  404  (D 
C.    N.    Car.). 


§   2991         ■  REVIEW  IN  CIRCUIT  COURT  OF  APPEALS.  1735 

§  2988.  Time  for  Appeal  Begins  from  Date  of  Entry  of  Order 
Overruling  Motion  for  Rehearing.— Where  a  motion  for  a  rehearing 
has  been  filed  in  time,  the  time  for  appeal  begins  to  run  from  the  date  of 
entry  of  the  order  overruling  the  motion. 

Thus,  from  an  order  confirming  a  composition,  not  until  entry  of  the 
order  overruling  the  motion  for  a  rehearing. ^^^ 

§  2989.  Motion  for  Rehearing  Not  Filed  in  Time,  Insufficient. — 

But  if  the  motion  for  rehearing  is  not  filed  in  time,  it  will  be  ineffective 
to  revive  the  lost  right  of  appeal. ^'^^ 

§  2990.  Reviving  Lost  Right  of  Appeal  by  Motion  Pretended  to 
Be  for  Reconsideration  of  Merits. — It  has  beeij  held,  in  some  cases, 
that  rehearings  will  not  be  granted  upon  the  pretence  of  reconsidering  the 
merits,  where  the  real  purpose  is  to  revive  the  petitioner's  right  of  appeal, 
which  had  been  lost  by  delay.  ^^^ 

In  re  Wright,  3  A.  B.  R.  184,  96  Fed.  820  (D.  C.  Mass.):  "The  court  is  satis- 
fied with  its  original  decision  upon  the  merits  of  the  case,  and  will  not  grant  a 
rehearing  in  order  to  give  those  merits  further  consideration.  To  grant  a  re- 
hearing upon  the  pretense  of  reconsidering  the  merits  of  the  case,  but  really  to- 
revive  the  petitioner's  right  of  appeal,  would  be  the  employment  of  an  unworthy 
fiction.  The  record  should  show  the  true  purpose  for  which  the  rehearing  was. 
sought  and  granted." 

It  has  been  held,  in  other  cases,  that  the  right  to  grant  a  rehearing  ex- 
isting, it  may  be  granted  for  the  purpose  of  reviving  the  right  of  appeal. 

In  re  Worcester  County,  4  A.  B.  R.  496,  102  Fed.  808  (G.  C.  A.  Mass.) :  "It 
is  apparent  that  the  purpose  was  to  revive  the  right  of  appeal.  *  *  *  During 
that  term  the  court  had,  of  course,  entire  control  over  the  decree  entered  on 
July  21st,  and  might  at  any  time  vacate  it  and  enter  a  new  decree.  It  is  of  no 
consequence  whether  the  petition  was  regarded  by  the  District  Court  as  a  peti- 
tion for  a  rehearing  or  for  a  review,  as  the  power  of  the  court  in  this  particular 
ii  regardless  of  forms,  and  may  be  exercised  even  in  a  summary  manner." 

Obiter,  In  re  Hudson  Clothing  Co.,  15  A.  B.  R.  254,  140  Fed.  49  (D.  C.  Me.): 
"It  is  undoubtedly  true  also,  that  the  court  has  a  right  to  grant  a  rehearing  for 
the  purpose  of  allowing  an  appeal  to  be  taken."  But  in  this  case  the  rehearing 
was  refused  because  the  aggrieved  party  had  been  warned  to  get  a  stenographer 
to  preserve  the  testimony  and  had  neglected  to  get  one. 

§  2991.  Alias  Order  of  Adjudication  Ineffective  to  Revive  Lost 
Right  of  Appeal. — And  the  entry  of  an  alias  order  of  adjudication,  sub- 
sequently to  the  approval  of  a  master's  report  and  entry  of  order  of  ad- 
judication thereon,  will  not  revive  a  lost  right  of  appeal. ^^^ 

181.  In  re  McCall,  16  A.  B.   R.  670,   145   Fed.  898   (C.   C.   A.   Tenn.). 

182.  Conboy'  v.   Nat'l   Bk.,   16  A.   B.   R.   775,   203  U.   S.   141. 

183.  In  re  Girard  Glazed  Kid  Co.,  12  A.  B.  R.  295,  129  Fed.  841  (D.  C. 
Penn.). 

184.  In  re  Berkebile,  16  A.  B.  R.  277,  144  Fed.  577   (C.  C.  A.  N.  Y.). 


1736  REMINGTON  ON  BANKRUPTCY.  '         §  2994 

§  2992.  Time  for  Appeal  in  "Controversies,"  Limited  by  Act 
Creating  Circuit  Court  of  Appeals. — The  time  for  taking  appeal  to  the 
circiiit  court  of  appeals  in  "controversies  arising  in  hankruptcy  proceed- 
ings," and  in  independent  actions  brought  by  the  trustee  to  recover  as- 
sets, etc.,  is  governed  by  the  provisions  of  the  act  creating  circuit  courts  of 
appeal.  1^^ 

Boonville  Nafl  Bk.  v.  Blakey,  6  A.  B.  R.  13,  107  Fed.  891  (C.  C.  A.  Ind.) : 
"The  motions  to  dismiss  are  without  merit  and  must  be  overruled.  They  pro- 
ceed upon  the  theory  that  from  all  decrees  or  orders  affecting  the  bankrupt's 
estate  an  appeal  must  be  taken  within  ten  days,  under  §  25  of  the  Bankrupt  iVct. 
This  is  an  erroneous  view.  That  section,  limiting  the  time  for  appeal  to  ten 
days,  has  application  only  to  decrees  or  orders  in  the  bankruptcy  proceedings; 
and  to  the  three  particular  cases  mentioned  in  the  section.  In  the  case  at  bar 
the  claims  were  by  the  estate  against  strangers  to  the  estate,  asserted  in  in- 
dependent proceedings.  The  section  has  no  reference  to  independent  suits  to 
assert  title  to  money  or  property  as  assets  of  the  bankrupt  against  strangers  to 
the  proceedings.  Such  independent  suits  with  respect  to  appeals  come  under' 
the  provisions  of  the  Act  creating  the  Circuit  Court  of  Appeals  with  respect  to 
the  period  of  liinitation  for  an  appeal."' 

§  2993.  No  Express  Time  for  Petitions  for  Review. — Petitions  for 
review  to  the  circuit  court  of  appeals  have  no  express  time  Hmit  for 
fiHng.ise 

Drug  Co.  V.  Drug  Co.,  14  A.  B.  R.  477,  136  Fed.  396  (C.  C.  A.  Tex.):  "The 
statute  allows  the  petition  to  revise  to  be  filed  on  due  notice,  but  provides  no 
other  regulations.  This  court  has  made  no  rules  as  to  any  of  the  requisites  or 
fonnalities."  • 

In  re  Groetzinger  &  Sons,  11  A.  B.  R.  467,  127  Fed.  124  (C.  C.  A.):  "The 
ground  upon  which  the  motion  to  dismiss  the  petition  for  review  rests  is  that 
the  petition  was  not  filed  within  six  months  after  the  entry  of  the  decree. 
*  *  *  But  *  *  *  neither  the  Bankrupt  Act  nor  any  rule  of  court  limits  the 
time  within  which  a  petition  for  a  review  in  bankruptcy  may  be  filed." 

§  2994.  But  Dismissed  for  Laches. — But  will  be  dismissed  for  laches 
in  prosecuting  the  proceedings.^^" 

185.  Inferentially,  Steele  f.  Buel,  5  A.  B.  R.  165,  104  Fed.  968  (C.  C.  A. 
Iowa);  inferentially.  In  re  Robertshaw,  14  A.  B.  R.  342,  135  Fed.  220  (D.  C. 
Pa.). 

186.  In  re  Holmes,  15  A.  B.  R.  693,  142  Fed.  391  (C.  C.  A.  Colo.);  In  re 
N.  Y.  Economical  Ptg.  Co.,  5  A.  B.  R.  697,  106  Fed.  839  (C.  C.  A.  N.  Y.) ;  In 
re  Worcester  Co.,  4  A.   B.   R.   496,   102   Fed.   808    (C.   C.   A.   Mass.). 

187.  In  re  Koenig  &  Van  Hoogenhuyze,  11  A.  B.  R.  617,  127  Fed.  891  (D.  C. 
Tex.),  in  which  case  a  delay  of  two  years  and  nine  months  from  the  filing  of 
the  petition  of  review,  without  any  real  effort  to  prosecute  it  to  a  hearing  and 
determination,  was  held  to  iustify  its  dismissal  upon  the  ground  that  it  was 
not  prosecuted  with   due   diligence. 

Compare,  to  same  effect,  Crim  v.  Woodford,  14  A.  B.  R.  302,  136  Fed.  3  4 
(C.   C.  A.   W.  Va.). 


<^    2999  REVIEW  IN  CIRCUIT  COURT  OF  APPEALS.  1737 

§  2995.  But  Not  Dismissed  unless  Delay  Unreasonable. — But  will 
not  be  dismissed  unless  there  has  been  unreasonable  delay. ^^^ 

'  §  2996.  Delay  Excusable  on  Good  Cause   Shown. — And  delay  in 
filing  the  record  may  be  excused  on  good  cause  shown. ^^^ 

In  re  Groetzinger  &  Sons,  11  A.  B.  R.  467,  127  Fed.  124  (C.  C.  A.):  "Yet,  upon 
the  facts  appearing,  we  think  a  reasonable  excuse  is  shown  for  delay  in  filing 
the  petition  for  review." 

But  neglect  of  the  referee  to  certify  the  facts  will  not  excuse  the  peti- 
tioner in  review. ^^^ 

§  2997.  By  Analogy  Should  Be  Filed  within  Six  Months'  Time.— 

By  analogy,  the  petition  for  review  should,  in  good  practice,  be  filed  within 
the  six  months'  time  fixed  by  chapter  517,  §  11,  26  Stats.  U.  S.  829,  for 
review  in  other  cases. ^^^ 

In  re  Holmes,  15  A.  B.  R.  693,  142  Fed.  391  (C.  C.  A.  Colo.):  "The  acts  of 
Congress  prescribe  no  time  within  which  bills  of  review  must  be  presented  in 
ordinary  cases  in  chancery  and  yet  the  rule  is  well  settled  that  such  bills,  to 
correct  errors  apparent  upon  the  face  of  the  record,  may  not  be  successfully 
maintained  unless  they  are  filed  within  the  times  limited  for  the  review  by  ap- 
peal of  the  decrees  they  question." 

In  re  Groetzinger  &  Sons,  11  A.  B.  R.  467,  127  Fed.  124  (C.  C.  A.):  "We  think 
that,  by  analogy,  such  petition  ought  to  be  filed  within  the  period  of  six  months 
allowed  by  the  Act  of  Alarch  3,  1891,  Stats.,  §  829,  for  an  appeal  in  other  cases. 

§  2998.  At  Least  in  All  Cases  of  "Controversies." — At  least  in  all 
cases  of  "controversies  arising  in  bankruptcy  proceedings,"  as  distinguished 
from  bankruptcy  proceedings  proper. ^^- 

§  2999.  Time  for  Review  in  Bankruptcy  Proceedings  Proper, 
Ten  Days  by  Analogy. — And  it  has  been  held  that  in  bankruptcy  pro- 
ceedings proper  the  time  for  review  should,  by  analogy  to  §  25  (a),  be 
limited  to  ten  days.^^^ 

188.  In  re  N.  Y.  Economical  Ptg.  Co..  5  A.  B.  R.  697,  106  Fed.  839  (C.  C. 
A.  N.  Y.);  Analogously,  Crim  z'.  Woodford.  14  A.  B.  R.  302.  136  Fed.  34  (C. 
C.   A.   W.   Va.). 

189.  Compare,  to  same  effect,  Drug  Co.  ■:■.  Drug  Co..  14  A.  B.  R.  477,  136 
Fed.  396   (C.  C.  A.  Tex.). 

190.  In  re  Koenig  &  Van  Hoogenhuyze,  11  A.  B.  R.  617,  127  Fed.  891  (D. 
C.  Tex.). 

191.  Obiter,  In  re  X.  Y.  Economical  Ptg.  Co.,  5  A.  B.  R.  697,  106  Fed.  839 
<C.  C.  A.  N.  Y.);  obiter.  In  re  Worcester  Co.,  4  A.  B.  R.  496,  102  Fed.  808 
(C.  C.  A.  Mass.);  obiter,  inferentially,  Loan  &  Trust  Co.  z:  Graham,  14  A.  B.  R. 
313,  317,  135  Fed.  717  (C.  C.  A.  W.  Va.).  But  see  In  re  Good,  3  A.  B.  R.  605, 
•94  Fed.  389  (C.  C.  A.  Mo.). 

192.  In  re   Friend,  13   A.   B.   R.  598,  134  Fed.  778   (C.   C.  A.   Ills.). 

193.  In  re  Friend,  13  A.  B.  R.  598,  134  Fed.  778  (C.  C.  A.  Ills.);  But  compare. 
In   re   Good.   3   A.   B.   R.   605,  94   Fed.   389    (C.    C.   A.   Mo.). 

Costs  on  Appeal  and  Error. — See  In  re  Henschel,  8  A.  B.  R.  201  (D.  C.  N. 
Y.);  In  re  Jourdan,  7  A.  B.  R.  186  (C.  C.  A.  Mass.).  For  discussion  of  costs  on 
appeal  and  error,  see  general  subject  of  "Costs,"  §  2001,  et  seq. 


1738  REMINGTON  ON  BANKRUPTCY.  §  3032 

§  3000.  Rehearing  Where  Order  Based  on  Authority  Since  Over- 
I'uled. — Rehearing  will  be  granted  at  any  time  within  the  term  or  before 
tlie  court  has  completely  lost  jurisdiction,  where  the  order  sought  to  be 
reheard  was  based  on  an  authority  that  has  since  been  overruled. ^^^ 

SUBDIVISION    "t." 

He;aring  in  Appellate;  and  Reviewing  Court. 

§  3001.  Objections  Not  Raised  Below,  Not  Heard  Above. — Ob- 
jections (other  than  jurisdictional  objections  not  waivable)  that  have  not 
been  raised  in  the  court  below,  will  not,  as  a  general  rule,  be  considered  on 
appeal    or    error. ^^^ 

Buckingham  v.  Estes,  12  A.  B.  R.  182,  128  Fed.  58-1  (C.  C.  A.  Tenn.) :  "The 
trustee  has  entered  a  motion  here  to  dismiss  the  petition  of  Mrs.  Estes,  the 
appellee,  because  she  is  a  married  woman,  and  cannot  sue  in  her  own  name 
without  the  intervention  of  a  trustee  or  next  friend.  Without  regard  to  the 
merits  of  this  motion  such  an  objection  cannot  for  the  first  time  be  taken  upon 
appeal." 

§  3002.  Record  to  Show  Same  Issues  Presented  to  Court  Below. 

— And  the  record,  on  review,  should  show  that  the  issues  of  law  presented 
above  were  presented  to  the  court  below. ^^*^ 

In  re  Boston  Dry  Goods  Co.,  11  A.  B.  R.  97,  125  Fed.  226  (C.  C.  A.  Mass.): 
"This  observation  applies  particularly  to  this  .case,  to  the  extent  that  we  ought 
not  to  take  jurisdiction  over  propositions  of  the  character  submitted  to  us, 
which  the  record  does  not  clearly  show  were  brought  specifically  to  the  atten- 
tion of  the  District  Court,  as  we  have  already  explained." 

Thus,  the  point  that  the  specifications  in  opposition  to  discharge  Avere 
indefinite,  not  raised  in  the  court  below,  will  not  be  considered  the  first 
time  on  appeal. ^°"  Likewise,  objections  to  a  private  sale,  and  to  a  sale 
before  appraisement,  cannot  be  made  for  the  first  time  on  review  of  the 
referee's  order. ^'^^     And  an  objection  that  some  of  the  property  belonging 

194.  Unitype   Co.  v.   Long,  17  A.   B.   R.   627    (C.   C.   A.   Ohio). 

195.  In  re  Gutterson,  14  A.  B.  R.  495,  136  Fed.  698  (D.  C.  Mass.);  In  re 
Boston  Dry  Goods  Co.,  11  A.  B.  R.  97.  125  Fed.  226  (C.  C.  A.  Mass.);  Vehon 
V.  Ulman,  17  A.  B.  R.  435,  147  Fed.  694  (C.  C.  A.  Ills.);  Bond  v.  Milliken,  17 
A.  B.  R.  811,  109  N.  W.  774  (Iowa);  Frank  v.  Volkommer.  17  A.  B.  R.  806 
(U.  S.).  Instance,  Love  v.  Export  Storage  Co.,  16  A.  B.  R.  171,  143  Fed.  1 
(C.   C.  A.   Tenn.). 

Contra,  on  review  of  referee's  order  by  district  court.  In  re  Wilde's  Sons, 
16  A.  B.  R.  386,  144  Fed.  972  (C.  C.  A.  N.  Y.) :  "*  *  *  we  are  clearly  of 
the  opinion  that,  when  a  district  court  is  reviewing  an  order  or  report  of  a 
referee  in  bankruptcy,  under  the  very  broad  provisions  of  act,  July  1,  1898, 
ch.  541,  §  2  (10),  30  Stat.  546  (U.  S.  Comp.  St.,  1901,  p.  3421),  it  may  properly 
consider  any  point  presented  by  the  record  then  before  it,  whether  such  point 
was  or  was  not  discussed  before  or  by  the  referee." 

196.  In  re  O'Connell,  14  A.  B.  R.  237,  137  Fed.  838  (C.  C.  A.  Mass.);  In  re 
Shoe   &   Leather   Reporter,   12  A.   B.   R.   248,  129   Fed.   588   (C.   C.   A.   Mass.). 

197.  Osborne  :v.   Perkins,  7   A.   B.   R.   250,   112   Fed.   127    (C.    C.   A.   Mass.). 

198.  In   re    Gutterson,    14   A.    B.    R.   495,    136    Fed.    698    (D.    C.    Mass.). 


^    3004  REVIEW  IN  CIRCUIT  COURT  OE  APPEALS.  1739 

to  the  bankrupt  estate  and  ordered  to  be  sold,  has  not  been  inventoried  in 
the  manner  required  by  the  Bankrupt  Act,  cannot  be  urged  for  the  first 
time  upon  a  revisory  petition. ^^^  Again,  where,  in  an  action  by  a  married 
woman  against  her  husband  and  his  trustee  in  bankruptcy  to  enforce  a 
resuhing  trust  in  certain  land  which  was  about  to  be  sold  as  part  of  the 
bankrupt  estate,  the  plaintiff  is  successful,  the  defendant  may  not,  on  ap- 
peal, for  the  first  time  object  that  the  plaintiff  cannot  sue  in  her  own  name 
without  the  intervention  of  a  trustee  or  next  friend,  nor  that  no  decree  pro 
canfesso  against  the  husband  was  taken  for  want  of  an  answer,  he  not 
being  an  indispensable  party  to  the  suit.200  The  objection  that  the  trustee 
and  not  the  creditors  nor  bankrupt  was  the  proper  party,  comes  too  late 
on   review. 2<^^ 

§  3003.  Even  Jurisdictional  Questions,  unless  Nonwaivable,  Not 
Considered  for  First  Time  on  Review. — And  where  the  questions 
are  even  jurisdictional  but  are  waivable  they  will  not  be  considered  for 
the  first  time,  on  appeal  or  error.  Thus,  in  a  suit  in  the  federal  court, 
brought  by  a  bankruptcy  officer  to  recover  assets  fraudulently  transferred 
(before  the  amendment  of  1903  conferred  jurisdiction),  where  no  ob- 
jection was  made  by  the  defendant  until  the  case  had  reached  the  reviewing 
court,  the  defendant  was  held  to  be  too  late  to  raise  objection  to  the 
jurisdiction. -'^2 

§  3004.  But  Will  Be,  if  Not  Waivable,  Though  Not  Considered 
Below,  nor  Assigned  as  Error. — But  jurisdictional  errors  that  are  not 
v/aivable  by  the  parties  will  be  considered  by  the  reviewing  court,  though 
not  brought  to  the  attention  of  the  court  below,  nor  assigned  as  error 
above.     The  court  will  take  notice  of  such  errors,  of  its  own  accord. 

Taft  z'.  Century  Sav.  Bk.,  15  A.  B.  R.  596,  141  Fed.  369  (C.  C.  A.  Iowa):  "The 
fact  that  the  parties  failed  to  suggest  want  of  jurisdiction  to  the  court  below,  or 
to  this  court,  is  of  no  importance.  It  is  the  duty  of  this  court,  sua  sponte,  to 
take  notice  of  want  of  jurisdiction  if  the  same  appears  by  the  record.  Chapman 
v.  Barney,  129  U.  S.  677,  681;  Mattingly  v.  N.  W.  Virginia  Railroad,  158  U.  S. 
53,  57;  Yocum  v.  Parker,  130  Fed.  770,  66  C.  C.  A.  80,  and  cases  cited. 

"An  inspection  of  the  petition  discloses  that  there  is  ho  allegation  showing 
the  amount  of  the  bankrupt's  indebtedness.     *     *     * 

"*  *  *  \Yq  observe  no  difference  in  principle  between  the  omission  of  an 
averment  bringing  the  debtor  without  the  exception  as  to  wage-earners  or  per- 
sons engaged  chiefly  in  farming  or  the  tillage  of  the  soil  and  the  omission  of 
an   averment   bringing   the    debtor   within    the    class    which   owes    debts    to    the 

199.  In  re  Shoe  &  Leather  Reporter,  12  A.  B.  R.  248,  129  Fed.  588  (C. 
C.  A.  Mass.). 

200.  Buckingham  v.   Estes,   12  A.   B.   R.  182,  128   Fed.  584   (C.    C.  A.  Tenn*.). 

201.  In  re  Koenig  &  Van  Hoogenhuyze,  11  A.  B.  R.  619,  127  Fed.  891  (D. 
C.   Tex.). 

202.  Boonville  Nat'l  Bk.  v.  Blakev,  6  A.  B.  R.  13,  107  Fed.  891  (C.  C.  A. 
Ind.). 


1740  REMINGTON  ON  BANKRUPTCY.  §  3008 

amount  of  $1,000  or  over.  These  provisions  are  both,  in  our  opinion,  jurisdic- 
tional, and  either  of  the  omissions  just  mentioned  shows  that  the  debtor  pro- 
ceeded against  is  not  within  the  class  of  persons  subject  to  the  provisions  of  the 
Bankruptcy  Act,  or  subject  to  the  jurisdiction  of  the  court  in  bankruptcy.  The 
petition  in  this  case  was  therefore  defective  in  not  disclosing  that  the  debtor 
owed  at  least  $1,000,  and  for  that  reason  it  conferred  no  jurisdiction  upon  the 
court  to  subject  Cohen,  the  debtor,  to  the  provisions  of  the  Act." 

§  3005.  Plain  Error  Noticed,  Though  Not  Raised  by  Parties 
Themselves. — And  the  reviewing  court  has  its  option  to  notice  a  plain 
error,  although  it  is  not  assigned. 

Boonville  Nat'l  Bk.  v.  Blakey,  6  A.  B.  R.  13,  107  Fed.  891  (C.  C.  A.  Ind.): 
"Rule  11  of  this  Court,  which  provides  that  errors  not  assigned  according  to 
the  rule  will  be  disregarded,  reserves  to  the  court  the  right  at  its  option  to 
notice  a  plain  error  not  assigned.  The  rule  is  one  of  order  and  of  convenience 
in  aid  of  the  court,  and  was  not  designed  to  prevent  the  correction  of  an  ob- 
vious error,  in  any  case  when,  in  the  judgment  of  the  court,  the  importance  of 
the  question  demands  its  consideration.  The  necessity  for  proper  and  orderly 
proceedings  in  bankruptcy  matters,  and  the  restriction  of  power  to  the  purposes 
and  within  the  limits  of  the  Bankrupt  Act,  require  at  our  hands  the  consideration 
of  the  question,  even  if  the  supposed  error  were  not  well  assigned." 

§  3006.  Issues  Directly  Raised  by  Pleadings  Considered,  Though 
First  Made  Point  of  on  Appeal. — And  issues  raised  by  the  pleadings, 
particularly  if  jurisdictional,  will  be  considered  on  appeal,  although  there 
tirst  made  point  of.-*'^ 

§  3007.  Findings  of  Fact,  or  Equivalent,  Essential  to  Show  Is- 
sues Same.^In  order  that  it  may  appear  by  the  record  that  issues 
raised  on  appeal  or  error  were  presented  below\  findings  of  fact  which 
involve  distinct  propositions  of  law,  or  something  else  as  a  substitute 
therefor,  are  necessary. -"^^ 

§  3008.  "Opinion"  of  Court  Insufficient,  Though  May  Be  "Looked 

to." — The  mere  opinion  of  the  district  court  is  insufiicient  ;-""^  unless  it 
is  specially  made  part  of  the  record. ^o^  But  the  opinion  of  the  court 
below  may  be  "looked  to,"  to  ascertain,  in  a  general  way,  the  proposition 

203.  In  re  West,  5  A.  B.  R.  734  (C.  C.  A.  N.  Y.) :  In  this  case  an  averment 
of  the  existence  of  the  requisite  $500  was  made  in  the  petition^  to  which  there  was 
a  general  denial  made,  but  there  was  a  stipulation  of  counsel  entered  into 
which  failed  to  refer  to  the  amount  of  the  creditors'  claims:  held,  reversible 
error,  for  which   the   cause  was  remanded  for   further  proof. 

204..  In  re  O'Connell,  14  A.  B.  R.  238,  137  Fed.  838  (C.  C.  A.  Mass.);  In  re 
Boston  Dry  Goods  Co.,  11  A.  B.  R.  97,  125  Fed.  226,  227,  230  (C.  C.  A.  Mass.); 
In  re  Shoe  &  Leather  Reporter,  12  A.  B.  R.  248,  129  Fed.  588  (C.  C.  A. 
Mass.);  In  re  Pettingill  &  Co.,  14  A.  B.  R.  760,  137  Fed.  840   (C.  C.  A.  Mass.). 

205.  In  re  Pettingill  &  Co.,  14  A.   B.  R.  760,  137  Fed.  840   (C.   C.  A.  Mass.) 

206.  In  re  Pettingill  &  Co.,  14  A.  B.  R.  760,  137  Fed.  840  (C.  C.  A.  Mass.). 
Chapman  Tr.  v.  Bowen,  18  A.  B.  R.  844,  207  U.  S.  — .     Also  see  ante,  §  2956. 


§    3009  REVIEW  IN  CIRCUIT  COURT  OF  APPEALS.  1741 

on  which  the  case  has  been  disposed  of,  and  in  particular  the  questions 
of  law  passed  on.-"" 

§  3009.  Judgment  on  Facts  Not  Disturbed  Except  for  Manifest 
Error. — The  judgment  of  the  court  below  on  the  facts  will  not  be  dis- 
turbed unless  clearly  against  the  weight  of  the  evidence  or  unless  plain 
and  manifest  error  exists. -*^^ 

Hussey  z'.  Dry  Goods  Co.,  17  A.  B.  R.  516  (C.  C.  A.  Kas.) :  "This  court,  in  a 
uniform  series  of  decisions,  has  declared  that,  when  the  trial  court  has  con- 
sidered conflicting  evidence  and  made  its  findings  and  decree  thereon,  it  will  be 
taken  as  presumptively  correct,  and  will  be  followed  unless  an  obvious  error 
has  occurred  in  the  application  of  the  law  or  a  serious  and  important  mistake 
has  been  made  in  consideration  of  the  evidence." 

Loan  &  Trust  Co.  v.  Graham,  14  A.  B.  R.  313,  135  Fed.  717  (C.  C.  A.  W.  Va.)  : 
"*  *  *  and  that  fact  both  the  referee  and  the  lower  court  having  determined 
adversely  to  the  trust  company,  this  court,  treating  this  as  a  petition  for  review, 
could  not  disturb,  and,  treating  it  as  an  appeal,  should  only  do  so  where  those 
tribunals  appear  plainly  to  have  been  wrong  in  the  conclusions  reached  by  them. 
Under  the  facts  of  this  case  it  may  be  said  that  there  was  room  for  difference 
of  opinion  as  to  just  what  was  the  true  transaction  between  the  parties;  but 
certainly  no  such  doubt  as  wotild  justify  this  court  in  departing  from  the  well- 
established  rule  of  accepting  the  decision  of  the  lower  courts,  particularly  where 
they  both  coincide  as  to  what  are  the  facts." 

In  re  Cole,  16  A.  B.  R.  303,  144  Fed.  392  (C.  C.  A.  Me.,  affirming  14  A.  B.  R. 
389):  "The  question  whether  the  money  was  in  the  possession  or  control  of 
Mrs.  Cole  is,  under  .the  circumstances  of  this  case,  what  the  law  designates  a 
question  of  fact,  over  which  we  could,  of  course,  have  no  jurisdiction  on  this 
petition,  which  raises  only  questions  of  law,  unless  the  finding  of  the  District 
Court  against  her  was  so  wholly  unjustified  on  the  proofs  as  would  require  us, 
on  a  writ  of  error,  to  set  aside  a  verdict  of  a  jury  for  want  of  any  evidence  what- 
ever to  sustain  it,  or  for  some  other  reason  kindred  thereto." 

In  re  Noyes  Bros.,  11  A.  B.  R.  507,  127  Fed.  506  (C.  C.  A.  Mass.):  "It  is  a 
familiar  rule  in  equity  that  an  appellate  court  will  not  interfere  with  findings  of 
£j^j,^  *  =ic  *  unless  the  findings  are  clearly  erroneous,  or,  as  it  is  sometimes 
expressed,  manifestly  against  the  weight  of  the  evidence." 

And  it  is  especially  true  that  the  reviewing  courts  will  not  disturb  a 
findings  of  facts,  where  both  the  referee  and  district  judge  have  coin- 
cided.209 

207.  In  re  Pettingill  &  Co.,  14  A.  B.  R.  760,  137  Fed.  840  (C.  C.  A.  Mass.); 
Samel  v.  Dodd,  16  A.  B.  R.  165,  142  Fed.  68  (C.  C.  A.  Ga.) ;  by  local  rule  In 
re  Robertshaw  Mfg.  Co.,  14  A.  B.  R.  342,  135  Fed.  220  (D.  C.  Fa.).     Also,  §  2957. 

208.  Osborne  v.  Perkins,  7  A.  B.  R.  250,  112  Fed.  127  (C.  C.  A.  Mass.); 
Dodge  z'.  Nolin,  13  A.  B.  R.  176,  133  Fed.  363  (C.  C.  A.  Colo.);  Buckingham 
V.  Estes,  12  A.  B.  R.  182,  128  Fed.  584  (C.  C.  A.  Tenn.)  quoted  post,  this 
same  paragraph;  Barton  Bros.  v.  Produce.  Co.,  14  A.  B.  R.  502,  136  Fed.  355  (C. 
C.  A.  Ark.);  Woods  v.  Little,  13  A.  B.  R.  742,  134  Fed.  229  (C.  C. 
A.  Penn.);     In  re  Levy  &  Co.,  15  A.  B.  R.   166,  142   Fed.  442   (C.   C.  A.). 

209.  Loan  &  Trust  Co.  v.  Graham,  14  A.  B.  R.  313,  135  Fed.  717  (C.  C.  A. 
W.  Va.). 


1742  REMIXGTOX  OX  BAXKRUPTCY.  §  3011 

Buckingham  z:  Estes,  12  A.  B.  R.  182,  128  Fed.  584  (C.  C.  A.  Tenn.) :  "The 
master  and  the  court  below  concurred  in  the  finding  of  facts,  and  when  that  is 
the  case  this  court  will  not  reverse  or  modify  unless  a  very  plain  mistake  is 
definiteh'  pointed  out." 

But  where  the  special  master  and  the  district  judge  are  not  in  accord, 
there  will  be  less  hesitanc}^  in  disturbing  such  findings. -^"^  And  where  the 
district  court  considered  other  evidence  than  simply  the  master's  report, 
'the  master's  report  will  not  conclude  the  circuit  court  of  appeals.-^^ 
\\1iere  there  are  no  express  findings  stated  in  such  a  way  as  to  make  it 
clear  they  are  distinct  findings  upon  questions  of  fact,  the  reviewing 
court  will  not  attach  the  usual  weight  accorded  to  the  findings  of  courts 
of  first  instance.-^- 

§  3010.  Trivialities  Not  Considered— Substantial  Interest  to  Be 
Shown. — Equity  will  not  concern  itself  with  trivialities  :-^-^  nor.  unless, 
on  the  whole  case,  the  proponent  satisfies  the  court  that  he  has  a  sub- 
stantial interest  that  is  in  danger. 

In  re  Boston  Dry  Goods  Co.,  11  A.  B.  R.  102  (C.  C.  A.  Mass.):  "In  this 
particular  case  we  do  not  feel  called  on  to  exercise  the  liberality  with  reference 
to  the  practice  on  petitions  of  this  character  which  we  have  sometimes  exer- 
cised, for  the  reasons  which  we  have  already  stated.  If  it  involved  substantial 
interests,  we  might  make  the  "due  allowance"  which  we  have  said  we  have 
ordinarih^  made,  and  endeavor  to  sift  out  from  the  record  the  issues  of  law,  if 
it  presents  any.  We  might  feel  called  on  to  do  this  even  in  cases  which  could 
be  said  to  relate  to  the  mere  administration  by  the  District  Court  of  the  bank- 
ruptcy statutes.  But  the  case  at  bar  is  not  merelj^  administrative  in  its  charac- 
ter; it  relates  to  a  subject  matter  as  to  which,  as  we  have  alreadj^  said,  there  is 
no  suggestion  of  any  practical  detriment  that  would  come  to  the  estate  from  the 
determination  of  the  District  Court  to  which  the  petition  relates,  even  if,  strictly- 
speaking,  that  determination  should  have  been  otherwise  than  what  it  was. 
It  would  be  detrimental  to  the  authority  of  the  District  Court,  injurious  to  its. 
administration  of  the  bankruptcy'  statutes  and  involve  tlie  numerous  and  useless 
delaj-s  which  those  statutes  evidently  have  been  framed  to  avoid,  if.  in  adminis- 
trative matters  where  no  substantial  interests  are  concerned,  we  became  med- 
dlesome bej-ond  what  the  law  requires  of  us." 

§  3011.  Clerical  Mistakes  Disregarded. — And  clerical  mistakes  wilV 
be  disresrarded.-^-* 


210.  Mason  f.  Wolkowich.  17  A.  B.  R.  719,  150   Fed.  699    (C.   C.  A.   Mass.). 

211.  Merchants   Xat"l   Bk.  v.    Cole,   18  A.    B.   R.   44.   149    Fed.   708    fC.   C.   A. 
Ohio). 

212.  Burleigh  r.  Foreman.  12  A.  B.  R.  91.  139  Fed.  1.3   (C.   C.   A.   Mass.). 

213.  In  re  Shoe  &  Leather  Reporter,  12  A.  B.  R.  249,  129  Fed.  588   (C.  C.  A. 
Mass.,  cited  and  followed  in   In   re   O'Connell.   14  A.   B.   R.   237). 

214.  In- re  McCall,  16  A.  B.  R.  670,  145  Fed.  898  (C.  C.  A.  Tenn.). 


§   3012  Hevmw  IN  CIRCUIT  COURT  OF  APPEALS.  1743 

SUBDIVISION    "F." 

Proceedings  after  Decision  on  Appeal  and  Review. 

§  3012.  Obedience  to  Mandate  Enforced  by  Mandamus. — The  cir- 
cuit court  of  appeals  may  enforce  obedience  to  its  mandate  by  man- 
damus.^^^ 

215.  Ex  parte  Chicago  Title  &  Trust  Co.,  16  A.  B.  R.  848,  146  Fed.  743 
(C.  C.  A.  Ills.). 


CHAPTER  LIX. 
Appeals  and  Petitions  for  Review  to  Supreme  Court. 

DIVISION  1. 
Synopsis  of  Chapter. 

§  3013.  Allowance  or  Rejection  of  Claims  Only  "Bankruptcy  Proceedings 
Proper"  Appealable  to  Supreme  Court. 

§  3014.  But  Only  Permissible,  Then,  if  Amount  in  Controversy  Exceeds  $2,000, 
etc. 

§  3015.  Or  Some  Supreme  Court  Justice  Certifies  Essential  to  Uniform  con- 
struction of  Act. 

§  3016.  Appeals  to  Supreme  Court  in  '"Controversies"  Where  Would  Have  Juris- 
diction in  Other  Cases. 

§  3017.  "Other  Cases"  Refers  to  Cases  Covered  by  Act  Creating  Circuit  Courts 
of  Appeal. 

§  3018.  But  Only  in  "Controversies"  and  Xot  in  "Bankruptcy  Proceedings 
Proper." 

§  3019.  Jurisdictional  Questions,  in  "Controversies,"  Appealable  Directly  from 
District  Court  to  Supreme,  Only  Where  Jurisdiction  Would  Exist 
if  Xot  Concerning  Bankruptcy. 

§  3020.  To  Be  on  Certificate. 

§  3021.  "Question  of  Jurisdiction"  ]\Ieans  Jurisdiction  Over  Subject  Matter  as 
Pleaded,   Xot  Over  Particular  Person   as   Dependent  on  Proof. 

§  3022.  Appeals  to  Supreme  Court  to  Be  Taken  within  Thirty  Days. 

§  3023.   Record  for  Transmission  to  Supreme  Court. 

DIVISIOX  2. 

§  3024.  Review  by  Error  or  Petition  in  Supreme  Court. 

§  3025.  Both  Bankruptcy  Proceedings  Proper  and  Also  '"Controversies"  Re- 
viewable in  Supreme  Court  on  Certiorari. 

DIVISION  3. 

§  3026.  State  Supreme  Court's  Decision  on  Trustee's  Action  to  Recover  Assets 
Transferred  Contrar}^  to  Bankruptcy  Act,  Presents  Federal  Question, 
Reviewable  by  Supreme  Court. 

Division  1. 

Appeals  to  Supreme  Court  from  Courts  of  Bankruptcy. 

§  3013.  Allowance  or  Rejection  of  Claims  Only  "Bankruptcy  Pro- 
ceedings Proper"  Appealable  to  Supreme  Court. — The  only  matters, 
in  "bankruptcy  proceedings  proper,"  as  distinguished  from  "controversies," 
appealable  from  the  circuit  court  of  appeals  to  the  United  States  Supreme 
Court,  are  cases  of  the  allowance  or  rejection  of  claims.^ 

And  the  rights  and  remedies  of  parties  appealing  to  the  Supreme  Court 
of  the  United  States  are  laid  down  in  §  24  (a)  and  in  §  25  (b)  and  (d).^ 

1.  Bankr.  Act,  §  25   (b). 

2.  Hutchinson. 7'.  Otis,  10  A.  B.  R.  275,  115  Fed.  937,  190  U.  S.  552  (C.  C.  A. 
Mass.).  ■ 


■§  3017      APPEALS   AND   PETITIONS   FOR  REVIEW   TO   SUPREME   COURT.  1745 

Where  the  question  involved  is  the  allowance  or  rejection  of  a  claim, 
there  may  be  an  appeal  from  the  circuit  court  of  appeals  to  the  Supreme 
Court  of  the  United  States,  in  bankruptcy  cases. 

§  3014.  But  Only  Permissible,  Then,  if  Amount  in  Controversy  Ex- 
ceeds $2,000,  etc. — But  such  appeal  is  allowable  only  in  two  cases,  1st, 
where  the  amount  in  controversy  exceeds  the  sum  of  two  thousand  dol- 
lars and  the  question  involved  is  also  one  which  might  have  been  taken  on 
appeal  or  writ  of  error  from  the  highest  court  of  a  state  to  the  Supreme 
Court  of  the  United   States.^ 

Thus,  the  rejection  of  a  set  off  forming  an  integral  part  of  a  claim  is  so 
appealable.'* 

§  3015.  Or  Some  Supreme  Court  Justice  Certifies  Essential  to 
Uniform  Construction  of  Act. — Or  2nd,  where  some  justice  of  the  Su- 
preme Court  of  the  United  States  shall  certify  that,  in  his  opinion,  the 
determination  of  the  question  or  questions  involved  in  the  allowance  or 
rejection  of  such  claim  is  essential  to  a  uniform  construction  of  this  act 
throughout  the  United  States.^ 

§  3016.  Appeals  to  Supreme  Court  in  "Controversies"  Where 
Would  Have  Jurisdiction  in  "Other  Cases." — Appeals  in  contro- 
versies arising  in  bankruptcy  proceedings  may  be  taken  to  the  Supreme 
Court  from  other  courts  of  bankruptcy,  from  which  it  would  have  juris- 
diction in  other  cases.^ 

Obiter,  First  Nat'l  Bk.  y.  Klug,  186  U.  S.  204,  8  A.  B.  R.  14:  "Apart  from  §  25, 
the  Circuit  Courts  of  Appeals  have  jurisdiction  on  petition  to  superintend  and 
revise  any  matter  of  law  in  bankruptcy  proceedings  and  also  jurisdiction  of 
controversies  over  which  they  would  have  appellate  jurisdiction  in  other  cases. 
The  decisions  of  those  courts  might  be  reviewed  here  on  certiorari,  or  in  certain 
cases  by  appeal,  under  §  6  of  the  act  of  1891.  Mueller  v.  Nugent,  184  U.  S.  1, 
7  Am.  B.  R.  224;  Huntington  v.  Saunders,  163  U.  S.  319;  Aztec  Mining  Co.  v. 
Ripley,  151  U.  S.  79,  81." 

§  3017.  "Other  Cases"  Refer  to  Cases  Covered  by  Act  Creating 
Circuit  Courts  of  Appeal. — The  "jurisdiction  in  other  cases"  men- 
tioned in  §  24  (a),  refers  to  the  judiciary  act  of  March  3,  1891,  creating 
circuit  courts  of  appeal.''' 

Thus,  judgments  of  the  circuit  court  of  appeals  in  actions  brought  by  the 
trustee   in   the    federal   circuit   court   or   removed   there    from    the    state 

3.  Bankr.  Act,  §  25  (b)  (1).  Hutchinson  v.  Otis,  10  A.  B.  R.  275,  115  Fed. 
937,  190  U.  S.  552  (C.  C.  A.  Mass.). 

4.  Western  Tie  &  Timber  Co.  v.  Brown,  13  A.  B.  R.  447,  19G  U.  S.  502. 

5.  Bankr.  Act,  §  25  (b)   (2). 

6.  Bankr.  Act,  §  24  (a). 

7.  First  National  Bk.  v.  Klug,  186  U.  S.  204,  8  A.  B.  R.  14. 

2  Rem  B— 35 


1746  REMINGTON  ON  BANKRUPTCY.  ^  3019 

court,  or  brought  in  the  U.  S.  district  court  by  consent  or  under  favor  of 
•the  amendment  of  1903  conferring  jurisdiction  to  recover  property  pref- 
erentially or  fraudulently  conveyed,  are  final  and  cannot  be  reviewed  by 
the  Supreme  Court. ^ 

§  3018.  But  Only  in  "Controversies"  and  Not  in  Bankruptcy  Pro- 
ceedings Proper. — But  the  Supreme  Court  has  appellate  jurisdiction  in 
such  "other  cases"  in  accordance  with  the  act  of  1891,  only  in  "contro- 
versies," not  in  bankruptcy  proceedings  proper. 

Thus,  the  question  as  to  whether  a  debtor  should  or  should  not  be  ad- 
judged bankrupt  is  pre-eminently  a  question  in  the  regular  course  of  the 
bankruptcy  proceedings  themselves,  and  is  governed  as  to  appeals  and 
reviews  solely  by  the  provisions  found  in  the  Bankruptcy  Act  relative  to 
appeals  and  reviews  in  bankruptcy  proceedings,  and  no  appeal  is  allowed 
to  the  Supreme  Court  by  the  statute  in  such  cases.^ 

As  noted,  ante,  §  3013  appeals  to  the  Supreme  Court  in  bankruptcy  pro- 
ceedings proper,  except  where  a  justice  certifies  the  question  as  essential 
tc  uniformity  of  construction,  are  allowable  in  only  one  case,  namely,  that 
the  allowance  or  rejection  of  the  claim  or  demand  be  of  a  claim  or  demand 
in  excess  of  $2,000. 

Thus,  also,  the  bankruptcy  court  being  necessarily  vested  with  juris- 
diction to  determine  a  bankrupt's  claim  to  exemptions,  a  direct  appeal  to 
the  Supreme  Court  from  an  erroneous  decision  (of  U.  S.  district  court) 
against  an  asserted  right  of  exemptions  of  the  proceeds  of  insurance  pol- 
icies will  not  lie,  the  jurisdiction  of  the  court  not  being  in  issue  within 
the  meaning  of  the  act  of  i\Iarch  3,  1891.^'^ 

§  3019.  Jurisdictional  Questions,  in  "Controversies,"  Appealable 
Directly  from  District  Court  to  Supreme,  Only  Where  Jurisdiction 
Would  Exist  if  Not  Concerning  Bankruptcy. — Questions  of  jurisdic- 
tion arising  in  "controversies"  may  be  appealed  directly  from  the  district 
court  to  the  Supreme  Court  in  cases  where  it  would  have  jurisdiction  if 
they  had  not  arisen  out  of  bankruptcy  proceedings. ^^ 

Bardes  v.  Hawarden  Bank,  3  A.  B.  R.  680,  178  U.  S.  52-i:  "By  the  oth  section 
of  the  Judiciary  Act  of  March  3,  1891  (26  Stat,  at  L.  826,  ch.  517),  it  was  pro- 
vided that  appeals  or  writs  of  error  might  be  taken  from  the  District  Courts 
or  from  the  Circuit  Courts  direct  to  this  court,  among  other  cases,  in  any  case 
in  which  the  jurisdiction  of  the  court  was  in  issue,  but  that  in- such  cases  the 
question  of  jurisdiction  alone  should  be  certified  from  the  court  below  for  deci- 

8.  Spencer  v.  Duplan  Silk  Co.,  11  A.  B.  R.  563,  191  U.  S.  526.  Analogously, 
compare,  Boonville  Xat'l  Bank  v.  Blakey,  6  A.  B.  R.  13  (C.  C.  A.  Ind.). 

9.  First  National  Bk.  v.  Klug,  186  U.  S.  204,  8  A.  B.  R.  14. 

10.  Lucius  V.  Cawthon-Coleman  Co.,  13  A.  B.  R.  696,  196  U.  S.  149. 

11.  Impliedly,  Lucius  v.  Cawthon-Coleman  Co.,  13  A.  B.  R.  696,  196  U.  S. 
149.  Compare,  instance  of  direct  petition  for  review  from  district  court  to 
Supreme  Court,  Ex  parte  O'Neal,  11  A.  B.  R.  196,  from  a  conviction  of  con- 
tempt of  court. 


§   3021       APPEALS   AND   PETITIONS   FOR  REVIEW   TO   SUPREME   COURT.  1747 

sion;  by  the  6th  section,  that  in  cases  made  final  in  the  Circuit  Courts  of  Ap- 
peals, those  courts  might  at  any  time  certify  to  this  court  any  questions  or 
propositions  of  law  concerning  which  they  desire  instruction  for  the  proper  de- 
cision of  the  cases,  and  this  court  might  answer  the  questions,  or  might  require 
the  whole  record  and  cause  to  be  sent  up  for  consideration;  and  also  that  in 
respect  of  cases  so  made  final,  it  should  be  competent  for  this  court  to  require 
by  certiorari  or  otherwise  any  such  case  to  be  certified  to  this  "court  for  review 
and  determination  with  the  same  power  and  authority  as  if  it  had  been  brought 
here  by  appeal  or  writ  of  error. 

"It  was  early  held  under  that  act  (McLish  v.  Rofif,  141  U.  S.  661),  that  appeals 
or  writs  of  error  in  cases  in  which  the  jurisdiction  of  the  court  was  in  issue  could 
only  be  taken  directly  to  this  court  after  final  judgments;  and  subsequently,  in 
United  States  v.  Rider,  163  U.  S.  132,  that  review  by  appeal,  writ  of  error,  or 
otherwise,  must  be  as  prescribed  by  that  act,  and  that  the  use  of  certificate  was 
limited  by  it  to  the  certificate  by  the  courts  below,  after  final  judgment,  of 
questions  made  as  to  their  own  jurisdiction,  and  to  the  certificate  by  the  Circuit 
Courts  of  Appeals  of  questions  of  law  in  relation  to  which  the  advice  of  this 
court  was  sought  as  therein  provided.  We  there  held  that  the  Act  of  March  3, 
1891,  covered  the  whole  subject  matter,  and  furnished  the  exclusive  rule  in  re- 
spect of  appellate  jurisdiction  on  appeal,  writ  of  error,  or  certificate. 

"The  Bankruptcy  Act  has  made  no  change  in  this  regard,  and  as  this  case 
has  not  gone  to  judgment,  the  certificate  must  be  dismissed." 

§  3020.  To  Be  on  Certificate. — But  there  must  be  a  certificate,  certify- 
ing the  question  of  jurisdiction,  and  only  the  question  of  jurisdiction  is 
to  be  so  certified. ^- 

§  3021.  "Question  of  Jurisdiction"  Means  Jurisdiction  Over  Sub- 
ject Matter  as  Pleaded,  Not  Over  Particular  Person  as  Dependent 
on  Proof. — The  "question  of  jurisdiction"  refers  to  jurisdiction  over  the 
subject  matter,  as  exhibited  by  the  pleadings,  not  jurisdiction  over  the 
particular  person  as  the  same  may  be  found  by  the  evidence  to  exist  or  not 
to  exist. 

First  Nat'l  Bk.  v.  Klug,  8  A.  B.  R.  14,  }86  U.  S.  204:  "The  conclusion  was,  it 
is  true,  that  Klug  could  not  be  adjudged  a  bankrupt  (being  a  'farmer'  and  en- 
gaged chiefly  in  farming),  but  the  court  had  jurisdiction  to  so  determine,  and 
its  jurisdiction  over  the  subject  matter  was  not  and  could  not  be  questioned." 

Columbia  Iron  Wks.  v.  Nat'l  Lead  Co.,  11  A.  B.  R.  341,  127  Fed.  99  (C.  C.  A. 
Mich.):  "In  this  court  a  motion  was  made  by  the  appellees  to  dismiss  the  ap- 
peal upon  the  ground  that  this  court  did  not  have  jurisdiction  thereof,  but  that 
the  appeal  should  have  been  taken  to  the  Supreme  Court  of  the  United  States, 
for  the  reason  that  the  question  of  the  jurisdiction  of  the  District  Court  was  in- 
volved in  that  its  order  adjudged  that  the  Columbia  Iron  Works  was  a  corpora- 
tion engaged  principally  in  manufacturing  or  mercantile  pursuits  within  the  true 
intent  and  meaning  of  the  Bankrupt  Act,  and  upon  the  further  ground  that  the 
appeal  was  not  taken  within  ten  days  from  the  adjudication  in  bankruptcy. 
This  court  postponed  the  hearing  of  said  motion  to  the  hearing  upon  the  merits. 

12.  First  National  Bk.  v.  Klug,  186  U.  S.  204,  8  A.  B.  R.  l4;  Bardes  v.  Hawar- 
den  Bank,  3  A.  B.  R.  680,  178  U.  S.  524. 


1748  REMINGTON  ON  BANKRUPTCY.  §  3024 

We  think  the  motion  to  dismiss  the  appeal  for  want  of  jurisdiction  thereof 
should  be  disallowed  upon  the  authority  of  the  case  of  Denver  First  National 
Bank  v.  Klug,  186  U.  S.  202,  8  Am.  B.  R.  12.  There  can  be  no  question  in  respect 
of  the  jurisdiction  of  the  District  Court  over  the  subject  matter,  and  it  seems 
quite  clear  that  it  also  had  jurisdiction  to  determine  whether  the  corporation 
was  principally  engaged  in  such  business  as  that  it  could  be  adjudged  a  bank- 
rupt." 

§  3022.  Appeals  to  Supreme  Court  to  Be  Taken  within  Thirty- 
Days. — Appeals  from  the  circuit  court  of  appeals,  and  from  the  su- 
preme courts  of  the  territories,  and  from  the  District  of  Columbia,  and 
from  other  courts  of  bankruptcy,  to  the  Supreme  Court  of  the  United 
States,  are  to  be  taken  within  thirty  days  after  the  judgment  or  decree 
appealed  from.^^ 

If  a  motion  for  rehearing  is  filed  within  the  thirty  days  though  not  de- 
cided until  subsequent  thereto,  the  time  for  appeal,  nevertheless,  will  begin 
to  run  on  the  date  of  the  original  order,  and  not  on  that  of  the  overruling 
of  the  motion  for  rehearing.  ^^  And  where  the  motion  for  a  rehearing  is 
not  filed  until  after  the  expiration  of  the  thirty  days,  it  is  ineiTective  to 
extend  the  time  for  appeal. ^^  Nor  can  the  allowance  of  an  appeal  on  the 
certificate  of  a  justice  of  the  Supreme  Court,  made  after  the  expiration 
of  the  thirty  days,  operate  as  an  adjudication  that  the  appeal  is  in  time.^^ 

§  3023.  Record  for  Transmission  to  Supreme  Court. — The  record 
transmitted  to  the  Supreme  Court  of  the  United  States  consists  of  the 
pleadings,  the  judgment  or  decree,  the  finding  of  facts  and  the  conclusions 
of  law;  and  it  is  made  the  duty  of  the  courts  from  whom  appeal  is  taken 
to  make  and  file  its  finding  of  facts  and  its  conclusions  of  law  thereon  and 
to  state  the  same  separately,  at  or  before  the  time  it  enters  the  judgment 
or  decree. ^^ 

DivKiox  2. 

Review  and  Error  Proceedings  in  Supreme  Court  from  Courts  oe 

Bankruptcy. 

§  3024.  Review  by  Error  or  Petition  in  Supreme  Court. — Contro- 
versies may  be  certified  to  the  Supreme  Court  of  the  United  States  from 
other  courts  of  the  United  States,  and  the  former  court  may  exercise  juris- 
distion  thereon  and  issue  writs  of  certiorari  pursuant  to  the  provisions  of 

13.  Gen.  Ord.  No.  XXXVI  2.  Conboy  v.  Nat'l  Bk.,  16  A.  B.  R.  773,  203  U. 
S.  141. 

14.  Inferentially,  Conboy  v.  Natl  Bk.,  16  A.  B.   R.  773,  203  U.  S.   141. 

15.  Conboy  v.  Xat'l  Bk.,  16  A.  B.  R.  773,  203  U.  S.  141. 

16.  Conboy  v.  Nat'l  Bk.,  16  A.  B.  R.  773,  203  U.  S.  141. 

17.  Gen.  Ord.  No.  XXXVI  3.  In  re  Rauchenplat,  9  A.  B.  R.  763,  1  P.  R.  471 
(D.  C.  Porto  Rico). 


§   3026      APPEAI^S   AND  PETITIONS   FOR  REVIEW   TO   SUPREME   COURT.  1749 

the  United  States  Laws  now  in  force  or  such  as  may  be  hereafter  en- 
acted. ^^ 

§  3025.  Both  Bankruptcy  Proceeding's  Proper  and  Also  "Contro- 
versies" Reviewable  in  Supreme  Court  on  Certiorari. — The  judg- 
ments and  orders  of  the  circuit  court  of  appeals  in  bankruptcy  proceed- 
ings proper,  and  also  in  controversies  arising  in  bankruptcy  proceedings, 
may  be  reviewed  on  certiorari,  pursuant  to  the  act  of  March  3,  1891, 

First  Nat'l  Bk.  v.  Klug,  8  A.  B.  R.  14,  186  U.  S.  204:  "The  words  'bankruptcy 
proceedings'  are  used  in  this  section,  in  contradistinction  to  controversies  arising 
out  of  the  settlement  of  the  estates  of  bankrupts,  as  they  are  also  so  used  in 
§§  23  and  24.  The  certification  referred  to  is  that  provided  for  in  §§  5  and  6  of 
the  act  of  March  3,  1891,  and  this  case  in  that  particular  does  not  fall  within 
tliose  sections. 

"Apart  from  §  25,  the  Circuit  Courts  of  Appeals  has  jurisdiction  on  petition 
to  superintend  and  revise  any  matter  of  law  in  bankruptcj^  proceedings  and  also 
jurisdiction  of  controversies  over  which  they  would  have  appellate  jurisdiction 
in  other  cases.  The  decision-s  of  those  courts  might  be  reviewed  here  on  cer- 
tiorari, or  in  certain  cases  by  appeal,  under  §  6  of  the  act  of  1891." 

But  perhaps  appeal  is  the  exclusive  remedy  as  to  the  allowance  or 
rejection  of  a  claim  over  $2,000  under  §  25  (b)   (1)  and  (2). 

Division  3. 

Review  and  Appeals  from  State  Supreme  Courts  to  United  States 

Supreme  Court. 

§  3026.  State  Supreme  Court's  Decision  on  Trustee's  Action  to 
Recover  Assets  Transferred  Contrary  to  Bankruptcy  Act,  Presents 
Federal  Question,  Reviewable  by  Supreme  Court. — Actions  by  trus- 
tees to  recover  assets,  asserted  ,to  belong  to  bankrupt  estates,  by  virtue 
of  the  bankruptcy  statute,  presents  a  federal  question,  and  give  jurisdiction 
to  the  United  States  Supreme  Court  to  review  the  decision  of  a  state  court 
of  last  resort  therein. ^^ 

Rector  v.  City  Deposit  Bank  Co.,  15  A.  B.  R.  336,  200  U.  S.  405:  "Both  these 
contentions  might  well  be  disposed  of  by  saying  that  the  action  was  brought  by 
&  trustee  appointed  under  the  Bankrupt  Law  of  the  United  States,  seeking  to 
recover  what  was  asserted  to  be  an  asset  of  the  bankrupt  estate  under  that  law. 
This,  therefore,  presented  a  Federal  question,  and  the  denial  of  the  asserted  right 
was  a  denial  of  a  right  or  title  specially  claimed  under  a  law  of  the  United 
States.     *    *     *    We  think  as  the  suit  was  brought  by  a  trustee  in  bankruptcy  in 

18.  Bankr.  Act,  §  25  (d). 

19.  Fan  Claire  Nat'l  Bk.  z'.  Jackman,  17  A.  B.  R.  680,  204  U.  S.  522  (afhrm- 
ing  125  Wis.  478).  . 

No  review  by  Supreme  Court  of  decision  of  State  Supreme  Court  affirmmg 
holding  of  inferior  state  court,  that  order  of  bankruptcy  court  setting  aside  ex- 
emptions is  res  adjudicata.     Smalley  v.  Laugcnour,  13  A.  B.  R.  692,  196  U.  S.  93. 


1750  REMINGTON  ON  BANKRUPTCY.  J^  3026 

virtue  of  the  power  and  authority  conferred  upon  him  by  a  law  of  the  United 
States,  the  certificate  makes  clear  the  fact,  if  it  were  otherwise  doubtful,  that 
rights  under  the  Bankrupt  Law  were  relied  upon  and  passed  upon  below. 
And  as,  this  being  true,  the  right  of  the  trustee  in  bankruptcy  to  recover  thus 
depended  upon  a  law  of  the  United  States,  there  was  clearly  jurisdiction  within 
the  purview  of  §  709  of  the  Revised  Statutes." 

The  certificate  of  the  state  court  of  last  resort  cannot  import  a  federal 
question  into  a  record,  where  otherwise  such  question  does  not  arise. ^^ 
But  such  certificate  may  elucidate  the  determination  as  to  whether  a 
federal  question  exists. 21 

20.  Rector  v.  City  Deposit  Bank  Co.,  15  A.  B.  R.  336,  200  U.  S.  405. 

21.  Rector  v.  City  Deposit  Bank  Co.,  15  A.  B.  R.  336,  200  U.  S.  405. 


THE  BANKRUPTCY  ACT  OF  1898. 


AN  ACT 

To  Create  a  Uniform  System  of  Bankruptcy  ix  the  United  States 

AND  Territories 

(Adopted   July    1,    1898;  Amendme4its   Approved    February   5,    1903   and 
June,  1906.)     Amendments  in  Italics. 


CHAPTER  I. 

Definitions. 

Section  1.  Meaning  of  Words  and  Phrases. — a  The  words  and 
phrases  used  in  this  act  and  in  proceedings  pursuant  hereto  shall,  unless 
the  same  be  inconsistent  with  the  context,  be  construed  as  follows :  ( 1 )  "A 
person  against  whom  a  petition  has  been  filed"  shall  include  a  person  who 
has  filed  a  voluntary  petition;  (2)  "adjudication"  shall  mean  the  date  of 
the  entry  of  a  decree  that  the  defendant,  in  a  bankruptcy  proceeding,  is  a 
bankrupt,  or  if  such  decree  is  appealed  from,  then  the  date  when  such  de- 
cree is  finally  confirmed;  (3)  "appellate  courts"  shall  include  the  circuit 
courts  of  appeals  of  the  United  States,  the  supreme  courts  of  the  Terri- 
tories, and  the  Supreme  Court  of  the  United  States;  (4)  "bankrupt"  shall 
iticlude  a  person  against  whom  an  involuntary  petition  or  an  application 
to  set  a  composition  aside  or  to  revoke  a  discharge  has  been  filed,  or  who 
has  filed  a  voluntary  petition,  or  who  has  been  adjudged  a  bankrupt; 
(5)  "clerk"  shall  mean  the  clerk  of  a  court  of  bankruptcy;  (6)  "corpora- 
tions" shall  mean  all  bodies  having  any  of  the  powers  and  privileges  of 
private  corporations  not  possessed  by  individuals  or  partnerships,  and  shall 
include  limited  or  other  partnership  associations  organized  under  laws 
making  the  capital  subscribed  alone  responsible  for  the  debts  of  the  asso- 
ciation;  (7)  "court"  shall  mean  the  court  of  bankruptcy  in  which  the  pro- 
ceedings are  pending,  and  may  include  the  referee;  (8)  "courts  of  bank- 
ruptcy" shall  include  the  district  courts  of  the  United  States  and  of  the 
Territories,  the  supreme  court  of  the  District  of  Columbia,  and  the  United 
States  court  of  the  Indian  Territory,  and  of  Alaska;  (9)  "creditor"  shall 
include  anyone  who  owns  a  demand  or  claim  provable  in  bankruptcy,  and 
may  include  his  duly  authorized  agent,  attorney,  or  proxy;  (10)  "date  of 
bankruptcy,"  or  "time  of  bankruptcy,"  or  "commencement  of  proceed- 
ings," or  "bankruptcy,"  with  reference  to  time,  shall  mean  the  date  when 
the  petition  was  filed;  (11)  "debt"  shall  include  any  debt,  demand,  or 
claim  provable  in  bankruptcy;  (12)  "discharge"  shall  mean  the  release  of 
a  bankrupt  from  all  of  his  debts  which  are  provable  in  bankruptcy,  except 


1756  REMINGTON   ON    BANKRUPTCY. 

such  as  are  excepted  by  this  act;  (13)  "document"  shall  include  any  book, 
deed,  or  instrument  in  writing;  (14)  "holiday"  shall  include  Christmas, 
the  Fourth  of  July,  the  Twenty-second  of  February,  and  any  day  ap- 
pointed by  the  President  of  the  United  States  or  the  Congress  of  the 
United  States  as  a  holiday  or  as  a  day  of  public  fasting  or  thanksgiving; 
(15)  a  person  shall  be  deemed  insolvent  within  the  provisions  of  this  act 
v/henever  the  aggregate  of  "his  property,  exclusive  of  any  property  which 
he  may  have  conveyed,  transferred,'  concealed,  or  removed,  or  permitted 
to  be  concealed  or  removed,  with  intent  to  defraud,  hinder  or  delay  his 
creditors,  shall  not,  at  a  fair  valuation,  be  sufficient  in  amount  to  pay  his 
debts;  (16)  "judge"  shall  mean  a  judge  of  a  court  of  bankruptcy,  not 
including  the  referee;  (17)  "oath"  shall  include  affirmation;  (18)  "offi- 
cer" shall  include  clerk,  marshal,  receiver,  referee,  and  trustee,  'and  the 
imposing  of  a  duty  upon  or  the  forbidding  of  an  act  by  any  officer  shall 
include  his  successor  and  any  person  authorized  by  law  to  perform  the 
duties  of  such  officer;  (19)  "persons"  shall  include  corporations,  except 
Avhere  otherwise  specified,  and  officers,  partnerships,  and  women,  and 
when  used  with  reference  to  the  commission  of  acts  which  are  herein  for- 
bidden shall  include  persons  who  are  participants  in  the  forbidden  acts, 
and  the  agents,  officers,  and  members  of  the  board  of  directors  or  trustees, 
or  other  similiar  controlling  bodies  of  corporations;  (20)  "petition"  shall 
mean  a  paper  filed  in  a  court  of  bankruptcy  or  with  a  clerk  or  deputy  clerk 
by  a  debtor  praying  for  the  benefits  of  this  act,  or  by  creditors  alleging 
the   commission   of  an   act   of  bankruptcy  by  a    debtor   therein    named ; 

(21)  "referee"  shall  mean  the  referee  who  has  jurisdiction  of  the  case 
or  to  whom  the  case  has  been  referred,  or  anyone  acting  in  his  stead; 

(22)  "conceal"  shall  include  secrete,  falsify,  and  mutilate;  (23)  "secured 
creditor"  shall  include  a  creditor  who  has  security  for  his  debt  upon  the 
property  of  the  bankrupt  of  a  nature  to  be  assignable  under  this  act,  or 
who  owns  such  a  debt  for  which  some  indorser,  surety,  or  other  persons 
secondarily  liable  for  the  bankrupt  has  such  security  upon  the  bankrupt's 
assets;  (24)  "States"  shall  include  the  Territories,  the  Indian  Territory, 
Alaska,  and  the  District  of  Columbia;  (25)  "transfer"  shall  include  the 
sale  and  every  other  and  different  mode  of  disposing  of  or  parting  with 
property,  or  the  possession  of  property,  absolutely  or  conditionally,  as  a 
payment,  pledge,  mortgage,  gift,  or  security;  (26)  "trustee"  shall  include 
all  of  the  trustees  of  an  estate;  (27)  "wage-earner"  shall  mean  an  in- 
dividual who  works  for  wages,  salary,  or  hire,  at  a  rate  of  compensation 
not  exceeding  one  thousand  five  hundred  dollars  per  year;  (28)  words 
importing  the  masculine  gender  may  be  applied  to  and  include  corpora- 
tions, partnerships,  and  women;  (29)  words  importing  the  plural  number 
may  be  applied  to  and  mean  only  a  single  person  or  thing;  (30)  words 
importing  the  singular  number  may  be  applied  to  and  mean  several  persons 
or  things. 


the  bankruptcy  act  of  1898.  1757 

Creation  of  Courts  of  Bankrutcy  and  their  Jurisdiction. 

CHAPTER  II. 

Sec.  2.  Courts  and  Jurisdiction: — That  the  courts  of  bank- 
ruptcy as  hereinbefore  defined,  viz.,  the  district  courts  of  the  United 
States  in  the  several  States,  the  supreme  court  of  the  District  of 
Columbia,  the  district  courts  of  the  several  territories,  and  the  United 
States  courts  in  the  Indian  Territory  and  the  District  of  Alaska, 
are  hereby  made  courts  of  bankruptcy,  and  are  hereby  invested, 
within  their  respective  territorial  limits  as  now  established,  or  as  they  may 
be  hereafter  changed,  with  such  jurisdiction  at  law  and  in  equity  as  will 
enable  them  to  exercise  original  jurisdiction  in  bankruptcy  proceedingfs, 
in  vacation  in  chambers  and  during  their  respective  terms,  as  they  are 
row  or  may.be  hereafter  held,  to  (1)  adjudge  persons  bankrupt  who  have 
had  their  principal  place  of  business,  resided,  or  had  their  domicile  within 
.  their  respective  territorial  jurisdictions  for  the  preceding  six  months,  or 
the  greater  portion  thereof,  or  who  do  not  have  their  principal  place  of 
business,  reside,  or  have  their  domicile  within  the  United  States,  but  have 
property  within  their  jurisdictions,  or  who  have  been  adjudged  bankrupts 
by  courts  of  competent  jurisdiction  without  the  United  States  and  have 
property  within  their  jurisdictions;  (2)  allow  claims,  disallow  claims, 
reconsider  allowed  or  disallowed  claims,  and  allow  or  disallow  them 
against  bankrupt  estates;  (3)  appoint  receivers  or  the  marshals,  upon 
application  of  parties  in  interest,  in  case  the  court  shall  find  it  absolutely 
necessary,  for  the  preservation  of  estates,  to  take  charge  of  the  property 
cf  bankrupts  after  the  filing  of  the  petition  and  until  it  is  dismissed  or 
the  trustee  is  qualified ;  (4)  arraign,  try,  and  punish  bankrupts,  officers, 
and  other  persons,  and  the  agents,  officers,  members  of  the  board  of  di- 
rectors or  trustees,  or  other  similar  controlling  bodies,  of  corporations  for 
violations  of  this  act,  in  accordance  with  the  laws  of  procedure  of  the 
United  States  now  in  force,  or  such  as  may  be  hereafter  enacted,  regu- 
lating trials  for  the  alleged  violation  of  laws  of  the  United  States;  (5)  au- 
thorize the  business  of  bankrupts  to  be  conducted  for  limited  periods  by 
receivers,  the  marshals,  or  trustees,  if  necessary  in  the  best  interests  of 
the  estates,  and  alloiv  such  officers  additional  conipcnsation  for  such  serv- 
ices, but  not  at  a  greater  rate  than  in  this  act  allozced  trustees  for  similar 
services;  (6)  bring  in  and  substitute  additional  persons  or  parties  in  pro- 
ceedings in  bankruptcy  when  necessary  for  the  complete  determination  of 
a  matter  in  controversy;  (7)  cause  the  estates  of  bankrupts  to  be  collected, 
reduced  to  money  and  distributed,  and  determine  controversies  in  relation 
thereto,  except  as  herein  otherwise  provided;  (8)  close  estates,  whenever 
it  appears  that  they  have  been  fully  administered,  by  approving  the  final 
accounts  and  discharging  the  trustees,  and  reopen  them  whenever  it  ap- 
pears they  were  closed  before  being  fully  administered;  (9)  confirm  or 
reject  compositions  between  debtors  and  their  creditors,  and  set  aside  com- 
positions and  reinstate  the  cases;    (10)   consider  and  confirm,  modify  or 


1758  REMINGTON  ON  BANKRUPTCY, 

overrule,  or  return,  with  instructions  for  further  proceedings,  records  and 
findings  certified  to  them  by  referees;  (11)  determine  all  claims  of  bank- 
rupts to  their  exemptions;  (12)  discharge  or  refuse  to  discharge  bank- 
rupts and  set  aside  discharges  and  reinstate  the  cases;  (13)  enforce 
obedience  by  bankrupts,  officers,  and  other  persons  to  all  lawful  orders, 
by  fine  or  imprisonment  or  fine  and  imprisonment;  (14)  extradite  bank- 
rupts from  their  respective  districts  to  other  districts;  (15)  make  such 
orders,  issue  such  process,  and  enter  such  judgments  in  a'ddition  to  those 
specifically  provided  for  as  may  be  necessary  for  the  enforcement  of  the 
provisions  of  this  act;  (16)  punish  persons  for  contempts  committed  be- 
fore referees;  (17)  pursuant  to  the  recommendation  of  creditors,  or  when 
they  neglect  to  recommend  the  appointment  of  trustees,  appoint  trustees, 
and  upon  complaints  of  creditors,  remove  trustees  for  cause  upon  hearings 
and  after  notices  to  them;  (18)  tax  costs,  whenever  they  are  allowed  by 
law,  and  render  judgments  therefor  against  the  unsuccessful  party,  or 
the  successful  party  for  cause,  or  in  part  against  each  of  the  parties,  and 
against  estates,  in  proceedings  in  bankruptcy;  and  (19)  transfer  cases  to 
other  courts  of  bankruptcy. 

Nothing  in  this  section  contained  shall  be  construed  to  deprive  a  court 
of  bankruptcy  of  any  power  it  would  possess  were  certain  specific  powers 
not  herein  enumerated. 

CHAPTER  III. 
Bankrupts. 

Sec.  3.  Acts  of  Bankruptcy. — a  Acts  of  bankruptcy  by  a  person  shall 
consist  of  his  having  (1)  conveyed,  transferred,  concealed,  or  removed, 
or  permitted  to  be  concealed  or  removed,  any  part  of  his  property  with 
intent  to  hinder,  delay,  or  defraud  his  creditors,  or  any  of  them;  or  (2) 
transferred,  while  insolvent,  any  portion  of  his  property  to  one  or  more 
of  his  creditors  with  intent  to  prefer  such  creditors  over  his  other  cred- 
itors; or  (3)  suffered  or  permitted,  while  insolvent,  any  creditor  to  obtain 
a  preference  through  legal  proceedings,  and  not  having  at  least  five  days 
before  a  sale  or  final  disposition  of  any  property  affected  by  such  pref- 
erence vacated  or  discharged  such  preference ;  or  (4)  made  a  general  as- 
signment for  the  benefit  of  his  creditors;  or,  being  insolvent,  applied  for  a 
receiver  or  trustee  for  his  property  or  because  of  insolvency  a  receiver  or 
Trustee  has  been  put  in  charge  of  his  property  under  the  laws  of  a  State; 
of  a  territory,  or  of  the  United  States;  (Ital.)  or  (5)  admitted  in  writing 
his  inability  to  pay  his  debts  and  his  willingness  to  be  adjudged  a  bankrupt 
on  that  ground. 

b  A  petition  may  be  filed  against  a  person  who  is  insolvent  and  who  has 
committed  an  act  of  bankruptcy  within  four  months  after  the  commission 
of  such  act.  Such  time  shall  not  expire  until  four  months  after  (1)  the 
date  of  the  recording  or  registering  of  the  transfer  or  assignment  when 


THE   BANKRUPTCY   ACT   OF    1898.  1759 

the  act  consists  in  having  made  a  transfer  of  any  of  his  property  with 
intent  to  hinder,  delay,  or  defraud  his  creditors  or  for  the  purpose  of 
giving  a  preference  as  hereinbefore  provided,  or  a  general  assignment  for 
the  benefit  of  his  creditors,  if  by  law  such  recording  or  registering  is  re- 
quired or  permitted,  or,  if  it  is  not,  from  the  date  when  the  beneficiary 
takes  notorious,  exclusive,  or  continuous  possession  of  the  property  unless 
the  petitioning  creditors  have  received  actual  notice  of  such  transfer  or 
assignment. 

c  It  shall  be  a  complete  defense  to  any  proceedings  in  bankruptcy  insti- 
tuted under  the  first  subdivision  of  this  section  to  allege  and  prove  that 
the  party  proceeded  against  was  not  insolvent  as  defined  in  this  act  at  the 
time  of  the  filing  the  petition  against  him,  and  if  solvency  at  such  date  is 
proved  by  the  alleged  bankrupt  the  proceedings  shall  be  dismissed,  and 
under  said  subdivision  one  the  burden  of  proving  solvency  shall  be  on  the 
alleged  bankrupt. 

d  Whenever  a  person  against  whom  a  petition  has  been  filed  as  here- 
inbefore provided  under  the  second  and  third  subdivisions  of  this  section 
takes  issue  with  and  denies  the  allegation  of  his  insolvency,  it  shall  be  his 
duty  to  appear  in  court  on  the  hearing,  with  his  books,  papers,  and  ac- 
counts, and  submit  to  an  examination,  and  give  testimony  as  to  all  matters 
tending  to  establish  solvency  or  insolvency,  and  in  case  of  his  failure  to  so 
attend  and  submit  to  examination  the  burden  of  proving  his  solvency  shall 
rest  upon  him. 

e  Whenever  a  petition  is  filed  by  any  person  for  the  purpose  of  having 
another  adjudged  a  bankrupt,  and  an  application  is  made  to  take  charge  of 
and  hold  the  property  of  the  alleged  bankrupt,  or  any  part  of  the  same, 
prior  to  the  adjudication  and  pending  a  hearing  on  the  petition,  the  pe- 
titioner or  applicant  shall  file  in  the  same  court  a  bond  with  at  least  two 
good  and  sufficient  sureties  who  shall  reside  within  the  jurisdiction  of  said 
court,  to  be  approved  by  the  court  or  a  judge  thereof,  in  such  sum  as  the 
court  shall  direct,  conditioned  for  the  payment,  in  case  such  petition  is  dis- 
missed, to  the  respondent,  his  or  her  personal  representatives,  all  costs, 
expenses,  and  damages  occasioned  by  such  seizure,  taking,  and  detention 
of  the  property  of  the  alleged  bankrupt. 

If  such  petition  be  dismissed  by  the  court  or  withdrawn  by  the  pe- 
titioner, the  respondent  or  respondents  shall  be  allowed  all  costs,  counsel 
fees,  expenses,  and  damages  occasioned  by  such  seizure,  taking,  or  de- 
tention of  such  property.  Counsel  fees,  costs,  expenses,  and  damages  shall 
be  fixed  and  allowed  by  the  court,  and  paid  by  the  obligors  in  such  bond. 

Sec.  4.  Who  may  become  Bankrupts. — a  Any  person  who  owes 
debts,  except  a  corporation,  shall  be  entitled  to  the  benefits  of  this  act  as 
a  voluntary  bankrupt. 

b  Any  natural  person,  except  a  wage-earner  or  a  person  engaged  chiefly 
in  farming  or  the  tillage  of  the  soil,  any  unincorporated  company,  and  any 
corporation  engaged  principally  in  manufacturing,  trading,  printing,  pub- 


1760  KKMINGTON    ON    BANKRUPTCY. 

lishing,  mining,  or  mercantile  pursuits,  owing  debts  to  the  amount  of  one 
thousand  dollars  or  over,  may  be  adjudged  an  involuntary  bankrupt  upon 
default  or  an  impartial  trial,  and  shall  be  subject  to  the  provisions  and 
entitled  to  the  benefits  of  this  act.  Private  bankers,  but  not  national  banks 
or  banks  incorporated  under  State  or  Territorial  laws,  may  be  adjudged 
involuntary  bankrupts.  The  bankruptcy  of  a  corporation  shall  not  release 
its  officers,  directors,  or  stockholders,  as  such,  from  any  liability  under  the 
luzi's  of  a  State  or  Territory  or  of  the  United  States. 

Sec.  5.  Partners. — a  A  partnership,  during  the  continuation  of  the 
partnership  business,  or  after  its  dissolution  and  before  the  final  settlement 
thereof,  may  be  adjudged  a  bankrupt. 

b  The  creditors  of  the  partnership  shall  appoint  the  trustee;  in  other 
respects  so  far  as  possible  the  estate  shall  be  administered  as  herein  pro- 
vided for  other  estates. 

c  The  court  of  bankruptcy  which  has  jurisdiction  of  one  of  the  partners 
may  have  jurisdiction"  of  all  the  partners  and  of  the  administration  of  the 
partnership  and  individual  property. 

d  The  trustee  shall  keep  separate  accounts  of  the  partnership  property 
and  of  the  property  belonging  to  the  individual  partners. 

e  The  expenses  shall  be  paid  from  the  partnership  property  and  the  in- 
dividual property  in  such  proportions  as  the  court  shall  determine. 

/  The  net  proceeds  gf  the  partnership  property  shall  be  appropriated  to 
the  payment  of  the  partnership  debts,  and  the  net  proceeds  of  the  indi- 
vidual estate  of  each  partner  to  the  payment  of  his  individual  debts. 
Should  any  surplus  remain  of  the  property  of  any  partner  after  paying 
his  individual  debts,  such  surplus  shall  be  added  to  the  partnership  assets 
and  be  applied  to  the  payment  of  the  partnership  debts.  Should  any  sur- 
plus of  the  partnership  property  remain  after  paying  the  partnership  debts, 
such  surplus  shall  be  added  to  the  assets  of  the  individual  partners  in  the 
proportion  of  their  respective  interests  in  the  partnership. 

g  The  court  may  permit  the  proof  of  the  claim  of  the  partnership  estate 
against  the  individual  estates,  and  vice  versa,  and  may  marshal  the  assets 
of  the  partnership  estate  and  individual  estates  so  as  to  prevent  preferences 
and  secure  the  equitable  distribution  of  the  property  of  the  several  estates. 

h  In  the  event  of  one  or  more  but  not  all  of  the  members  of  a  partner- 
ship being  adjudged  bankrupt,  the  partnership  property  shall  not  be  ad- 
ministered in  bankruptcy,  unless  by  consent  of  the  partner  or  partners  not 
adjudged  bankrupt;  but  such  partner  or  partners  not  adjudged  bank- 
rupt shall  settle  the  partnership  business  as  expeditiously  as  its  nature 
vs'ill  permit,  and  account  for  the  interest  of  the  partner  or  partners  ad- 
judged bankrupt. 

Sec.  6.  Exemption  of  Bankrupts.— a  This  act  shall  not  aft'ect  the 
allowance  to  bankrupts  of  the  exemptions  which  are  prescribed  by  the 
State  laws  in  force  at  the  time  of  the  filing  of  the  petition  in  the  State 


THE- BANKRUPTCY   ACT   OF    1898.  1761 

wherein  they  have  had  their  domicile  for  the  six  months  or  the  greater 
portion  thereof  immediately  preceding  the  filing  of  the  petition. 

Sec.  7.  Duties  of  Bankrupts. — a  The  bankrupt  shall  (1)  attend  the 
first  meeting  of  his  creditors,  if  directed  by  the  court  or  a  judge  thereof 
to  do  so,  and  the  hearing  upon  his  application  for  a  discharge,  if  filed; 
(2)  comply  with  all  lawful  orders  of  the  court;  (3)  examine  the  correct- 
ness of  all  proofs  of  claims  filed  against  his  estate;  (4)  execute  and  de- 
liver such  papers  as  shall  be  ordered  by  the  court;  (5)  execute  to  his 
trustee  transfers  of  all  his  property  in  foreign  countries;  (6)  immediately 
inform  his  trustee  of  any  attempt,  by  his  creditors  or  other  persons,  to 
evade  the  provisions  of  this  act,  coming  to  his  knowledge;  (7)  in  case  of 
any  person  having  to  his  knowledge  proved  a  false  claim  against  his  estate, 
disclose  that  fact  immediately  to  his  trustee;  (8)  prepare,  make  oath  to, 
and  file  in  court  within  ten  days,  unless  further  time  is  granted,  after  the 
adjudication,  if  an  involuntary  bankrupt,  and  with  the  petition  if  a  volun- 
tJjry  bankrupt,  a  schedule  of  his  property,  showing  the  amourit  and  kind 
of  property,  the  location  thereof,  its  money  value  in  detail,  and  a  list  of 
his  creditors,  showing  their  residences,  if  known,  if  unknown,  that  fact 
to  be  stated,  the  amounts  due  each  of  them,  the  consideration  thereof,  the 
security  held  by  them,  if  any,  and  a  claim  for  such  exemptions  as  he  may 
be  entitled  to,  all  in  triplicate,  one  copy  of  each  for  the  clerk,  and  one  for 
the  referee,  and  one  for  the  trustee ;  and  (9)  when  present  at  the  first 
meeting  of  his  creditors,  and  at  such  other  times  as  the  court  shall  order, 
submit  to  an  examination  concerning  the  conducting  of  his  business,  the 
cause  of  his  bankruptcy,  his  dealings  with  his  creditors  and  other  persons, 
the  amount,  kind,  and  whereabouts  of  his  property,  and,  in  addition,  all  mat- 
ters which  may  afifect  the  administration  and  settlement  of  his  estate ;  but 
no  testimony  given  by  him  shall  be  ofl^ered  in  evidence  against  him  in  any 
criminal  proceeding. 

Provided,  however.  That  he  shall  not  be  rec[uired  to  attend  a  meeting 
of  his  creditors,  or  at  or  for  an  examination  at  a  place  more  than  one 
h.undred  and  fifty  miles  distant  from  his  home  or  principal  place  of  busi- 
ness, or  to  examine  claims  except  when  presented  to  him,  unless  ordered 
by  the  court,  or  a  judge  thereof,  for  cause  shown,  and  the  bankrupt  shall 
be  paid  his  actual  expenses  from  the  estate  when  examined  or  required  to 
attend  at  any  place  other  than  the  city,  town,  or  village  of  his  residence. 

Sec.  8.  Death  or  Insanity  of  Bankrupts. — a  The  death  or  insanity 
of  a  bankrupt  shall  not  abate  the  proceedings,  but  the  same  shall  be  con- 
ducted and  concluded  in  the  same  manner,  so  far  as  possible,  as  though 
he  had  not  died  or  become  insane :  Provided,  That  in  case  of  death  the 
widow  and  children  shall  be  entitled  to  all  rights  of  dower  and  allowance 
fixed  by  the  laws  of  the  State  of  the  bankrupt's  residence. 

Sec.    9.   Protection  and  Detention  of  Bankrupts. — a  A  bankrupt 
shall  be  exempt   from  arrest  upon  civil  process  except  in  the   following 
2  Rem  B— 36 


1762  re;mington  on  bankruptcy. 

cases:  (1)  When  issued  from  a  court  of  bankruptcy  for  contempt  or  dis- 
obedience of  its  lawful  orders;  (2)  when  issued  from  a  State  court  having 
jurisdiction,  and  served  within  such  State,  upon  a  debt  or  claim  from 
which  his  discharge  in  bankruptcy  would  not  be  a  release,  and  in  such 
case  he  shall  be  exempt  from  such  arrest  wdien  in  attendance  upon  a 
court  of  bankruptcy  or  engaged  in  the  performance  of  a  duty  imposed  by 
this  act. 

b  The  judge  may,  at  any  time  after  the  filing  of  a  petition  by  or  against 
a  person,  and  before  the  expiration  of  one  month  after  the  qualification  of 
the  trustee,  upon  satisfactory  proof  by  the  affidavits  of  at  least  tw-o  per- 
sons that  such  bankrupt  is  about  to  leave  the  district  in  which  he  resides 
or  has  his  principal  place  of  business  to  avoid  examination,  and  that  his 
departure  will  defeat  the  proceedings  in  bankruptcy,  issue  a  warrant  to  the 
marshal,  directing  him  to  bring  such  bankrupt  forthwith  before  the  court 
for  examination.  If  upon  hearing  the  evidence  of  the  parties  it  shall  ap- 
pear to  the  court  or  a  judge  thereof  that  the  allegations  are  true,  and 
that  it  is  necessary,  he  shall  order  such  marshal  to  keep  such  bankrupt  in 
custody  not  exceeding  ten  days,  but  not  imprison  him,  until  he  shall  be 
examined  and  released  or  give  bail  conditioned  for  his  appearance  for 
examination,  from  time  to  time,  not  exceeding  in  all  ten  days,  as  re- 
quired by  the  court,  and  for  his  obedience  to  all  lawful  orders  made  in 
reference  thereto. 

Sec.  10.  Extradition  of  Bankrupts. — a  Whenever  a  warrant  for 
the  apprehension  of  a  bankrupt  shall  have  been  issued,  and  he  shall  have 
been  found  within  the  jurisdiction  of  a  court  other  than  the  one  issuing 
the  warrant,  he  may  be  extradited  in  the  same  manner  in  wdiich  persons 
under  indictment  are  now  extradited  from  one  district  within  which  a 
district  court  has  jurisdiction  to  another. 

Sec.  11.  Suits  by  and  against  Bankrupts. — a  A  suit  w4iich  is 
founded  upon  a  claim  from  which  a  discharge  would  be  a  release,  and 
which  is  pending  against  a  person  at  the  time  of  the  filing  of  a  petition 
against  him,  shall  be  stayed  vmtil  after  an  adjudication  or  the  dismissal 
of  the  petition ;  if  such  person  is  adjudged  a  bankrupt,  such  action  may 
be  further  stayed  until  twelve  months  after  the  date  of  such  adjudication, 
or,  if  within  that  time  such  person  applies  for  a  discharge,  then  until 
the  question  of  such  discharge  is  determined. 

b  The  court  may  order  the  trustee  to  enter  his  appearance  and  defend 
any  pending  suit  against  the  bankrupt. 

c  A  trustee  may,  with  the  approval  of  the  court,  be  permitted  to  prose- 
cute as  trustee  any  suit  commenced  by  the  bankrupt  prior  to  the  adjudi- 
cation, with  like  force  and  effect  as  though  it  had  been  commenced  by  him. 

d  Suits  shall  not  be  brought  by  or  against  a  trustee  of  a  bankrupt  estate 
subsequent  to  two  years  after  the  estate  has  been  closed. 

Sec.  12.  CompQsitions,  when  Confirmed. — a  A  bankrupt  may  offer 
terms  of  composition  to  his  creditors  after,  but  not  before,  he  has  been 


THE  BANKRUPTCY  ACT   0^    1898.  1763 

examined  in  open  court  or  at  a  meeting  of  his  creditors,  and  filed  in  court 
the  schedule  of  his  property  and  list  of  his  creditors,  required  to  be  filed 
by  bankrupts. 

b  An  application  for  the  confirmation  of  a  composition  may  be  filed  in 
the  court  of  bankruptcy  after,  but  not  before,  it  has  been  accepted  in 
writing  by  a  majority  in  number  of  all  creditors  whose  claims  have  been 
allowed,  which  number  must  represent  a  majority  in  amount  of  such 
claims,  and  the  consideration  to  be  paid  by  the  bankrupt  to  his  creditors, 
and  the  money  necessary  to  pay  all  debts  which  have  priority  and  the 
cost  of  the  proceedings,  have  been  deposited  in  such  place  as  shall  be 
designated  by  and  subject  to  the  order  of  the  judge. 

c  A  date  and  place,  with  reference  to  the  convenience  of  the  parties  in 
interest,  shall  be  fixed  for  the  hearing  upon  each  application  for  the 
confirmation  of  a  composition,  and  such  objections  as  may  be  made  to 
its  confirmation. 

d  The  judge  shall  confirm  a  composition  if^satisfied  that  (1)  it  is  for  the 
best  interests  of  the  creditors;  (2)  the  bankrupt  has  not  been  guilty  of 
any  of  the  acts  or  failed  to  perform  any  of  the  duties  which  would  be  a 
bar  to  his  discharge;  and  (3)  the  offer  and  its  acceptance  are  in  good 
faith  and  have  not  been  made  or  procured  except  as  herein  provided,  or 
by  any  means,  promises,  or  acts  herein  forbidden. 

e  Upon  the  confirmation  of  a  composition,  the  consideration  shall  be 
distributed  as  the  judge  shall  direct,  and  the  case  dismissed.  Whenever 
a  composition  is  not  confirmed,  the  estate  shall  be  administered  in  bank- 
ruptcy as  herein  provided. 

Sec.  13.  Compositions,  when  Set  Aside. — a  The  judge  may,  upon 
the  application  of  parties  in  interest  filed  at  any  time  within  six  months 
after  a  composition  has  been  confirmed,  set  the  same  aside  and  reinstate 
the  case  if  it  shall  be  made  to  appear  upon  a  trial  that  fraud  was  practiced 
in  the  procuring  of  such  composition,  and  that  the  knowledge  thereof  has 
come  to  the  petitioners  since  the  confirmation  of  such  composition. 

Sec.  14.  Discharges,  when  Granted. — a  Any  person  may,  after 
the  expiration  of  one  month  and  within  the  next  twelve  months  subse- 
quent to  being  adjudged  a  bankrupt,  file  an  application  for -.a  discharge  in 
the  court  of  bankruptcy  in  which  the  proceedings  are  pending;  if  it  shall 
be  made  to  appear  to  the  judge  that  the  bankrupt  was  unavoidably  pre- 
vented from  filing  it  within  such  time,  it  may  be  filed  within  but  not  after 
the  expiration  of  the  next  six  months. 

b  The  judge  shall  hear  the  application  for  a  discharge,  and  such  proofs 
artd  pleas  as  may  be  made  in  opposition-  thereto  by  parties  in  interest,  at 
such  time  as  will  give  parties  in  interest  a  reasonable  opportunity  to  be 
fully  heard,  and  investigate  the  merits  of  the  application,  and  discharge  the 
applicant  unless  he  has  (1)  committed  an  offense  punishable  by  im- 
prisonment as   herein  provided;   or    (2)    with   intent  to  conceal  his  true 


1764  REMINGTON    ON    BANKRUPTCY. 

financial  condition,  destroyed,  concealed,  or  failed  to  keep  books  of  account 
or  records  from  which  such  condition  might  be  ascertained;  or  (3)  ob- 
tained property  on  credit  from  any  person  upon  a  materially  false  state- 
ment in  writing  made  to  such  person  for  the  purpose  of  obtaining  such 
property  on  credit;  or,  (4)  at  any  time  subsequent  to  the  first  day  of  the 
four  months  immediately  preceding  the  filing  of  the  petition  transferred, 
removed,  destroyed,  or  concealed,  or  permitted  to  be  removed,  destroyed, 
or  concealed  any  of  his  property  zi'ith  intent  to  hinder,  delay  or  defraud 
his  creditors;  or  (5)  /;;  voluntary  proceedings  been  granted  a  discharge  in 
bankruptcy  zcithin  six  years;  or  (6)  in  the  course  of  the  proceedings  in 
lankruptcy  refused  to  obey  any  lazvful  order  of  or  to  anstver  any  material 
question  approved  by  the  court. 

c  The  confirmation  of  a  composition  shall  discharge  the  bankrupt  from 
his  debts,  other  than  those  agreed  to  be  paid  by  the  terms  of  the  composi- 
tion and  those  not  affected  by  a  discharge. 

Sec.  15.  Discharges,  when  Revoked. — a  The  judge  may,  upon  the 
application  of  parties  in  interest  who  have  not  been  guilty  of  undue  laches, 
filed  at  any  time  within  one  year  after  a  discharge  shall  have  been 
granted,  revoke  it  upon  a  trial  if  it  shall  be  made  to  appear  that  it  was 
obtained  through  the  fraud  of  the  bankrupt,  and  that  the  knowledge  of 
the  fraud  has  come  to  the  petitioners  since  the  granting  of  the  discharge, 
and  that  the  actual  facts  did  not  warrant  the  discharge. 

Sec.  16.  Co-Debtors  of  Bankrupts. — a  The  liability  of  a  person  who 
is  a  co-debtor  with,  or  guarantor  or  in  any  manner  a  surety  for,  a  bank- 
rupt shall  not  be  altered  by  the  discharge  of  such  bankrupt. 

Sec.  17.  Debts  not  affected  by  Discharge. — a  A  discharge  in  bank- 
ruptcy shall  release  a  bankrupt  from  all  of  his  provable  debts,  except 
such  as  (1)  are  due  as  a  tax  levied  by  the  United  States,  the  State,  county, 
district,  or  municipality  in  which  he  resides ;  (2)  are  liabilities  for  obtain- 
ing property  by  false  pretenses  or  false  representations,  or  willful  and 
malicious  injuries  to  the  person  or  property  of  another;  or  for  alimony  due 
or  to  become  due,  or  for  maintenance  or  support  of  wife  or  child,  or  for 
seduction  of  an  unmarried  female,  or  for  criminal  conversation;  (3)  have 
not  been  duly  scheduled  in  time  for  proof  and  allowance,  with  the 
name  of  the  creditor  if  known  to  the  bankrupt,  unless  such  creditor  had 
notice  or  actual  knowledge  of  the  proceedings  in  bankruptcy;  or  (4)  were 
created  by  his  fraud,  embezzlement,  misappropriation,  or  defalcation 
while  acting  as  an  officer  or  in  any  fiduciary  capacity. 

CHAPTER  IV. 
Courts  and  Procedure  Therein. 

Sec.  18.  Process,  Pleadings,  and  Adjudications. — a  Upon  the  fil- 
ing of  a  petition  for  involuntary  bankruptcy,  service  thereof,  with  a  writ 


THE   BANKRUPTCY   ACT   OF    1898.  1765 

of  subpcEiia,  shall  be  made  upon  the  person  therein  named  as 
defendant  in  the  same  manner  that  service  of  such  process  is 
now  had  upon  the  commencement  of  a  suit  in  ecjuity  in  the  courts  of 
the  United  States,  except  that  it  shall  be  returnable  within  fifteen  days, 
unless  the  judge  shall  for  cause  fix  a  longer  time;  but  in  case  personal 
service  can  not  be  made,  then  notice  shall  be  given  by  publication  in  the 
same  manner  and  for  the  same  time  as  provided  by  law  for  notice  by 
publication  in  suits  to  enforce  a  legal  or  equitable  lien,  in  courts  of  the 
United  States,  e.vcept  that,  unless  the  judge  shall  otherzuise  direct,  the 
order  shall  be  published  not  more  than  once  a  zt'cek  for  two  consecuUve 
zveeks,  and  the  return  day  shall  be  ten  days  after  the  last  publication 
unless  the  judge  shall  for  the  cause  fix  a  longer  time. 

b  The  bankrupt,  or  any  creditor,  may  appear  and  plead  to  the  petition 
within  fiz'e  days  after  the  return  day,  or  within  such  further  time  as  the 
court  may  allow. 

c  All  pleadings  setting  up  matters  of  fact  shall  be  verified  under  oath. 

of  If  the  bankrupt,  or  any  of  his  creditors,  shall  appear,  within  the  time 
limited,  and  controvert  the  facts  alleged  in  the  petition,  the  judge  shall 
determine,  as  soon  as  may  be,  the  issues  presented  by  the  pleadings,  with- 
out the  intervention  of  a  jury,  except  in  cases  where  a  jury  trial  is  given 
by  this  act,  and  makes  the  adjudication  or  dismiss  the  petition. 

e  If  on  the  last  day  within  which  pleadings  may  be  filed  none  are  filed 
by  the  bankrupt  or  any  of  his  creditors,  the  judge  shall  on  the  next  day,  if 
present,  or  as  soon  thereafter  as  practicable,  make  the  adjudication  or  dis- 
miss the  petition. 

f  li  the  judge  is  absent  from  the  district,  or  the  division  of  the  district 
in  which  the  petition  is  pending,  on  the  next  day  after  the  last  day  on 
v/hich  pleadings  may  be  filed,  and  none  have  been  filed  by  the  bankrupt  or 
any  of  his  creditors,  the  clerk  shall  forthwith  refer  the  case  to  the  referee. 

g  Upon  the  filing  of  a  voluntary  petition  the  judge  shall  hear  the  petition 
and  make  the  adjudication  or  djsmiss  the  petition.  If  the  judge  is  absent 
from  the  district,  or  the  division  of  the  district  in  which  the  petition  is 
filed  at  the  time  of  the  filing,  the  clerk  shall  forthwith  refer  the  case  to 
the  referee. 

Sec.  19.  Jury  Tjials.  a  A  person  against  whom  an  involuntary  pe- 
tition has  been  filed  shall  be  entitled  to  have  a  trial  by  jury,  in  respect  to 
the  question  of  his  insolvency,  except  as  herein  otherwise  provided,  and 
any  act  of  bankruptcy  alleged  in  such  petition  to  have  ^been  committed, 
upon  filing  a  written  application  therefor  at  or  before  the  time  within 
which  an  answer  may  be  filed.  If  such  application  is  not  filed  within  such 
time,  a  trial  by  jury  shall  be  deemed  to  have  been  waived. 

6  If  a  jury  is  not  in  attendance  upon  the  court,  one  may  be  specially 
summoned  for  the  trial,  or  the  case  may  be  postponed,  or,  if  the  case  is 
pending  in  one  of  the  district  courts  within  the  jurisdiction  of  a  circuit 
court  of   the  United   States,   it  may  be   certified   for   trial  to  the  circuit 


1766  REMINGTON    ON    BANKRUPTCY. 

court  sitting  at  the  same  place,  or  by  consent  of  parties  when  sitting  at 
ji.ny  other  place  in  the  same  district,  if  such  circuit  court  has  or  is  to  have 
a  jury  first  in  attendance. 

c  The  right  to  submit  matters  in  controversy,  or  an  alleged  offense  un- 
der this  act,  to  a  jury  shall  be  determined  and  enjoyed,  except  as  provided 
by  this  act,  according  to  the  United  States  laws  now  in  force  or  such  as 
may  be  hereafter  enacted  in  relation  to  trials  by  jury. 

Sec.  20.  Oaths,  Affirmations. — a  Oaths  required  by  this  act,  except 
upon  hearings  in  court,  may  be  administered  by  (1)  referees;  (2)  officers 
authorized  to  administer  oaths  in  proceedings  before  the  courts  of  the 
United  States,  or  under  the  laws  of  the  State  where  the  same  are  to  be 
taken;  and  (3)  diplomatic  or  consular  officers  of  the  United  States  in 
any  foreign  country. 

h  Any  person  conscientiously  opposed  to  taking  an  oath  may,  in  lieu 
thereof,  affirm.  Any  person  who  shall  affirm  falsely  shall  be  punished  as 
for  the  making  of  a  false  oath. 

Sec.  21.  Evidence. — a  A  court  of  bankruptcy  may,  upon  application 
of  any  officer,  bankrupt  or  creditor,  by  order  require  any  designated  per- 
son, including  the  bankrupt  and  his  wife,  to  appear  in  court  or  before  a 
referee  or  the  judge  of  any  State  court,  to  be  examined  concerning  the 
acts,  conduct,  or  property  of  a  bankrupt  whose  estate  is  in  process  of*  ad- 
ministration under  this  act:  Provided,  That  the  wife  may  be  examined 
only  touching  business  transacted  by  her  or  to  zvhich  she  is  a  party,  and 
to  determine  the  fact  whether  she  has  transacted  or  been  a  party  to  any 
business  of  the  bankrupt. 

,  b  The  right  to  take  depositions  in  proceedings  under  this  act  shall  be 
determined  and  enjoyed  according  to  the  United  States  laws  now  in  force, 
or  such  as  may  be  hereafter  enacted  relating  to  the  taking  of  depositions, 
except  as  herein  provided. 

c  Notice  of  the  taking  of  depositions  shall  be  filed  with  the  referee  in 
every  case.  When  depositions  are  to  be  taken  in  opposition  to  the  allow- 
ance of  a  claim  notice  shall  also  be  served  upon  the  claimant,  and  when 
in  opposition  to  a  discharge  notice  shall  also  be  served  upon  the  bankrupt. 

d  Certified  copies  of  proceedings  before  a  referee,  or  of  papers,  when 
issued  by  the  clerk  of  referee,  shall  be  admitted  as  evidence  with  like  force 
and  efifect  as  certified  copies  of  the  records  of  district  courts  of  the  United 
States  are  now  or  may  hereafter  be  admitted  as  evidence. 

e  A  certified  copy  of  the  order  approving  the  bond  of  a  trustee  shall 
constitute  conclusive  evidence  of  the  vesting  in  him  of  the  title  to  the 
property  of  the  bankrupt,  and  if  recorded  shall  impart  the  same  notice  that 
a  deed  from  the  bankrupt  to  the  trustee  if  recorded  would  have  imparted 
had  not  bankruptcy  proceedings  intervened. 

/  A  certified  copy  of  an  order  confirming  or  setting  aside  a  composition, 
or  granting  or  setting  aside  a  discharge,  not  revoked,  shall  be  evidence  of 


THK  BANKRUPTCY  ACT   OF   1898.  1767 

the  jurisdiction  of  the  court,  the  regularity  of  the  proceedings,  and  of 
the  fact  that  the  order  was  made. 

g  A  certified  copy  of  an  order  confirming  a  composition  shall  constitute 
evidence  of  the  revesting  of  the  title  of  his  property  in  the  bankrupt,  and 
if  recorded  shall  impart  the  same  notice  that  a  deed  from  the  trustee  to 
the  bankrupt  if  recorded  would  impart. 

Sec.  22.  Reference  of  Cases  after  Adjudication. — a  After  a  per- 
son has  been  adjudged  a  bankrupt  the  judge  may  cause  the  trustee  to  pro- 
ceed with  the  administration  of  the  estate,  or  refer  it  (1)  generally  to 
the  referee  or  specially  with  only  limited  authority  to  act  in  the  premises  or 
to  consider  and  report  upon  specified  issues;  or  (2)  to  any  referee  within 
the  territorial  jurisdiction  of  the  court,  if  the  convenience  of  parties  in 
interest  will  be  served  thereby,  or  for  cause,  or  if  the  bankrupt  does  not 
do  business,  reside,  or  have  his  domicile  in  the  district. 

h  The  judge  may,  at  any  time,  for  the  convenience  of  parties  or  for 
cause,  transfer  a  case  from  one  referee  to  another. 

Sec.  23.  Jurisdiction  of  United  States  and  State  Courts. — a  The 

United  States  circuit  courts  shall  have  jurisdiction  of  all  controversies'  at 
law  and  in  equity,  as  distinguished  from  proceedings  in  bankruptcy,  be- 
tween trustees  as  such  and  adverse  claimants  concerning  the  property  ac- 
quired or  claimed  by  the  trustees,  in  the  same  mannfer  and  to  the  same  ex- 
tent only  as  though  bankruptcy  proceedings  had  not  been  instituted  and 
such  controversies  had  been  between  the  bankrupts  and  such  adverse 
claimants. 

h  Suits  by  the  trustee  shall  only  be  brought  or  prosecuted  in  the  courts 
where  the  bankrupt,  whose  estate  is  being  administered  by  such  trustee, 
ijiight  have  brought  or  prosecuted  them  if  proceedings  in  bankruptcy  had 
not  been  instituted,  unless  by  consent  of  the  proposed  defendant,  except 
suits  for  the  recovery  of  property  under  section  sixty,  subdivision  b,  and 
section  sixty-seven,  subdivision  e. 

c  The  United  States  circuit  courts  shall  have  concurrent  jurisdiction 
with  the  courts  of  bankruptcy,  within  their  respective  territorial  limits, 
of  the  oflfenses  enumerated  in  this  act. 

Sec.  24.  Jurisdiction  of  Appellate  Courts. — a  The  Supreme  Court 
of  the  United  States,  the  circuit  courts  of  appeals  of  the  United  States, 
and  the  supreme  courts  of  the  Territories,  in  vacation  in  chambers  and 
during  their  respective  terms,  as  now  or  as  they  may  be  hereafter  held, 
are  hereby  invested  with  appellate  jurisdiction  of  controversies  arising  in 
bankruptcy  proceedings  from  the  courts  of  bankruptcy  from  which  they 
have  appellate  jurisdiction  in  other  cases.  The  Supreme  Court  of  the 
United  Sttates  shall  exercise  a  like  jurisdiction  from  courts  of  bankruptcy 
not  within  any  organized  circuit  of  the  United  States  and  from  the  su- 
preme court  of  the  District  of  Columbia. 

b  The  several  circuit  courts  of  appeal  shall  have  jurisdiction  in  equity, 


1768  REMINGTON    ON    BANKRUPTCY. 

either  interlocutory  or  final,  to  superintend  and  revise  in  matter  of  law 
the  proceedings  of  the  several  inferior  courts  of  bankruptcy  within  their 
jurisdiction.  Such  power  shall  be  exercised  on  due  notice  and  petition  by 
any  party  aggrieved. 

Sec.  2  5.  Appeals  and  Writs  of  Error. — a  That  appeals,  as  in  equity 
cases,  may  be  taken  in  bankruptcy  proceedings  from  the  courts  of  bank- 
ruptcy to  the  circuit  court  of  appeals  of  the  United  States,  and  to  the 
supreme  court  of  the  Territories,  in  the  following  cases,  to  wit,  (1)  from 
a  judgment  adjudging  or  refusing  to  adjudge  the  defendant  a  bankrupt; 
(2)  from  a  judgment  granting  or  denying  a  discharge;  and  (3)  from  a 
judgment  allowing  or  rejecting  a  debt  or  claim  of  five  hundred  dollars 
or  over.  Such  appeal  shall  be  taken  within  ten  days  after  the  judgment 
appealed  from  has  been  rendered,  and  may  be  heard  and  determined  by 
the  appellate  court  in  term  or  vacation,  as  the  case  may  be. 

b  From  any  final  decision  of  a  court  of  appeals,  allowing  or  rejecting  a 
claim  under  this  act,  an  appeal  may  be  had  under  such  rules  and  within 
such  time  as  may  be  prescribed  by  the  Svipreme  Court  of  the  United 
States,  in  the  following  cases  and  no  other : 

1.  Where  the  amount  in  controversy  exceeds  the  sum  of  two  thousand 
dollars,  and  the  question  involved  is  one  which  might  have  been  taken 
on  appeal  or  writ  of  error  from  the  highest  court  of  a  State  to  the  Su- 
preme Court  of  the  United  States ;  or 

2.  AMiere  some  Justice  of  the  Supreme  Court  of  the  United  States 
shall  certify  that  in  his  opinion  the  determination  of  the  question  or  ques- 
tions involved  in  the  allowance  or  rejection  of  such  claim  is  essential  to  a 
uniform  construction  of  this  act  throughout  the  United  States. 

c  Trustees  shall  not  be  required  to  give  bond  when  they  take  appeals 
or  sue  out  writs  of  error. 

d  Controversies  may  be  certified  to  the  Supreme  Court  of  the  United 
States  from  other  courts  of  the  United  States,  and  the  former  court  may 
exercise  jurisdiction  thereof  and  issue  writs  of  certiorari  pursuant  to  the 
provisions  of  the  United  States  laws  now  in  force  or  such  as  may  be  here- 
after enacted. 

Sec.  26.  Arbitration  of  Controversies.— a  The  trustee  may,  pursu- 
ant to  the  direction  of  the  court,  submit  to  arbitration  any  controversv 
arising  in  the  settlement  of  the  estate. 

b  Three  arbitrators  shall  be  chosen  by  mutual  consent,  or  one  by  the 
trustee,  one  by  the  other  party  to  the  controversy,  and  the  third  by  the 
two  so  chosen,  or  if  they  fail  to  agree  in  five  days  after  their  appointment 
the  court  shall  appoint  the  third  arbitrator. 

c  The  written  finding  of  the  arbitrators,  or  a  majority  of  them,  as  to 
the  issue  presented,  may  be  filed  in  court  and  shall  have  like  force  and 
effect  as  the  verdict  of  a  jury. 

Sec.  27.  Compromises.— o  The  trustee  may,  with  the  approval  of  the 


THE   BANKRUPTCY   x\CT   OF    1898.  1769 

court,   compromise   any  controversy  arising  in  the  administration  of  the 
estate  upon  such  terms  as  he  may  deem  for  the  best  interests  of  the  estate. 

Sec.  28.  Designation  of  Newspapers. — a  Courts  of  bankruptcy  shall 
by  order  designate  a  newspaper  published  within  their  respective  territorial 
districts,  and  in  the  county  in  which  the  bankrupt  resides  or  the  major 
part  of  his  property  is  situated,  in  which  notices  required  to  be  published 
by  this  act  and  orders  which  the  court  may  direct  to  be  published  shall  be 
inserted.  Any  court  may  in  a  particular  case,  for  the  convenience  of 
parties  in  interest,  designate  some  additional  newspaper  in  which  notices 
and  orders  in  such  case  shall  be  published. 

Sec.  29.  Offenses. — a  A  person  shall  be  punished,  by  imprisonment 
for  a  period  not  to  exceed  five  years,  upon  conviction  of  the  offense  of  hav- 
ing knowingly  and  fraudulently  appropriated  to  his  own  use,  embezzled, 
spent,  or  unlawfully  transferred  any  property  or  secreted  or  destroyed  any 
document  belonging  to  a  bankrupt  estate  which  came  into  his  charge  as 
trustee. 

h  A  person  shall  be  punished,  by  imprisonment  for  a  period  not  to  exceed 
two  years,  upon  conviction  of  the  offense  of  having  knowingly  and  fraud- 
ulently (1)  concealed  while  a  bankrupt,  or  after  his  discharge,  from  his 
trustee  any  of  the  property  belonging  to  his  estate  in  bankruptcy;  or  (2) 
made  a  false  oath  or  account  in,  or  in  relation  to,  any  proceeding  in  bank- 
ruptcy; (3)  presented  under  oath  any  false  claim  for  proof  against  the 
estate  of  a  bankrupt,  or  used  any  such  claim  in  composition  personally 
or  by  agent,  proxy,  or  attorney,  or  as  agent,  proxy,  or  attorney;  or  (4)  re- 
ceived any  material  amount  of  property  from  a  bankrupt  after  the  filing 
of  the  petition,  with  intent  to  defeat  this  act;  or  (5)  extorted  or  attempted 
to  exort  any  money  or  property  from  any  person  as  a  consideration  for 
acting  or  forbearing  to  act  in  bankruptcy  proceedings. 

c  A  person  shall  be  punished  by  fine,  not  to  exceed  five  hundred  dollars, 
and  forfeit  his  office,  and  the  same  shall  thereupon  become  vacant,  upon 
conviction  of  the  offense  of  having  knowingly  (1)  acted  as  a  referee  in 
a  case  in  which  he  is  directly  or  indirectly  interested;  or  (2)  purchased, 
while  a  referee,  directly  or  indirectly,  any  property  of  the  estate  in  bank- 
ruptcy of  which  he  is  referee;  or  (3)  refused,  while  a  referee  or  trustee, 
to  permit  a  reasonable  opportunity  for  the  inspection  of  the  accounts 
relating  to  the  affairs  of,  and  the  papers  and  records  of,  estates  in  his 
charge  by  parties  in  interest  when  directed  by  the  court  so  to  do. 

d  A  person  shall  not  be  prosecuted  for  any  o'ffense  arising  under  this 
act  unless  the  indictment  is  found  or  the  information  is  filed  in  court 
within  one  year  after  the  commission  of  the  offense. 

Sec.  30.  Rules,  Forms,  and  Orders. — a  All  necessary  rules,  forms, 
and  orders  as  to  procedure  and  for  carrying  this  act  into  force  and  effect 
shall  be  prescribed,  and  may  be  amended  from  time  to  time,  by  the  Su- 
l)reme  Court  of  the  United  States. 


1770  EEMIXGTOX    OX    BAXKRUrTCY, 

Sec.  31.  Computation  of  Time. — a  Whenever  time  is  enumerated  by 
Clays  in  this  act,  or  in  any  proceeding  in  bankruptcy,  the  number  of  days 
shall  be  computed  by  excluding  the  first  and  including  the  last,  unless  the 
List  fall  on  a  Sunday  or  holiday,  in  which  event  the  day  last  included  shall 
be  the  next  day  thereafter  which  is  not  a  Sunday  or  a  legal  holiday. 

Sec.  32.  Transfer  of  Cases. — a  In  the  event  petitions  are  filed 
against  the  same  person,  or  against  different  members  of  a  partnership,  in 
different  courts  of  bankruptcy  each  of  which  has  jurisdiction,  the  cases 
shall  be  transferred,  by  order  of  the  courts  relinquishing  jurisdiction 
to  and  he  consolidated  by  the  one  of  such  courts  which  can  proceed  with 
the  same  for  the  greatest  convenience  of  parties  in  interest. 

CHAPTER  V. 

Officers,  Their  Duties  axd  Compexsatiox. 

Sec.  33.  Creation  of  Two  Offices. — a  The  offices  of  referee  and 
trustee  are  hereby  created. 

Sec.   34.   Appointment,   Removal  and  Districts  of  Referees. — a 

Courts  of  bankruptcy  shall,  within  the  territorial  limits  of  which  they  re- 
spectively .have  jurisdiction,  (1)  appoint  referees,  each  for  a  term  of 
two  years,  and  may,  in  their  discretion,  remove  them  because  their  ser^^- 
ices  are  not  needed  or  for  other  cause;  and  (2)  designate,  and'  from 
time  to  time  change,  the  limits  of  the  districts  of  referees,  so  that  each 
county,  where  the  services  of  a  referee  are  needed,  may  constitute  at 
least  one  district. 

Sec.  3  5.  Qualifications  of  Referees. — a  Individuals  shall  not  be 
eligible  to  appointment  as  referees  unless  they  are  respectively  (1)  com- 
petent to  perform  the  duties  of  that  office;  (2)  not  holding  any  office  of 
profit  or  emolument  under  the  laws  of  the  United  States  or  of  any 
State  other  than  commissioners  of  deeds,  justices  of  the  peace,  masters, 
in  chancery,  or  notaries  public;  (3)  not  related  by  consanguinity  or  af- 
finity, within  the  third  degree  as  determined  by  the  common  law,  to  any 
of  the  judges  of  the  courts  of  bankruptcy  or  circuit  courts  of  the  United 
States,  or  of  the  justices  or  judges  of  the  appellate  courts  of  the  districts 
wherein  they  may  be  appointed;  and  (4)  residents  of,  or  have  their  of- 
fices in,  the  territorial  districts  for  which  they  are  to  be  appointed. 

Sec.  36.  Oaths  of  Office  of  Referees.— a  Referees  shall  take  the 
same  oath  of  office  as  that  prescribed  for  judges  of  United  States  courts. 

Sec.  37.  Number  of  Referees.— a  Such  number  of  referees  shall 
be  appointed  as  may  be  necessary  to  assist  in  expeditiously  transacting 
the  bankruptcy  business  pending  in  the  various  courts  of  bankruptcy. 

Sec.  38.  Jurisdiction  of  Referees.— a-  Referees  respectively  are 
hereby  invested,  subject  always  to  a  review  by  the  judge  within  the  limits 


THK  BANKRUPTCY  ACT  OF    1898.  1771 

of  their  districts  as  established  from  time  to  time,  with  jurisdiction  to 
(1)  consider  all  petitions  referred  to  them  by  the  clerks  and  make  the 
adjudications  or  dismiss  the  petitions;  (2)  exercise  the  powers  vested 
in  courts  of  bankruptcy  for  the  administering  of  oaths  to  and  the  exam- 
ination of  persons  as  witnesses  and  for  requiring  the  production  of  docu- 
ments   in    proceedings    before    them,    except   the    power   of    commitment; 

(3)  exercise  the  powers  of  the"  judge  for  the  taking  possession  and  re- 
leasing of  the  property  of  the  bankrupt  in  the  event  of  the  issuance  by 
the  clerk  of  a  certificate  showing  the  absence  of  a  judge  from  the  judicial 
district,  or  the  division  of  the  district,  or  his  sickness,  or  inability  to  act; 

(4)  perform  such  part  of  the  duties,  except  as  to  questions  arising  out 
of  the  applications  of  bankrupts  for  compositions  or  discharges,  as  are 
by  this  act  conferred  on  courts  of  bankruptcy  and  as  shall  be  prescribed 
by  rules  or  orders  of  the  courts  of  bankruptcy  of  their  respective  districts, 
except  as  herein  otherwise  provided;  and  (5)  upon  the  application  of  the 
trustee  during  the  examination  of  the  bankrupts,  or  other  proceedings, 
authorize  the  employment  of  stenographers  at  the  expense  of  the  estates 
at  a  compensation  not  to  exceed  ten  cents  per  folio  for  reporting  and 
transcribing  the  proceedings. 

Sec.  39.  Duties  of  Referees. — a  Referees  shall  (1)  declare  divi- 
dends and  prepare  and  deliver  to  trustees  dividend  sheets  showing  the 
dividends  declared  and  to  whom  payable;  (2)  examine  all  schedules  of 
property  and  lists  of  creditors  filed  by  bankrupts  and  cause  such  as  are 
incomplete  or  defective  to  be  amended;  (3)  furnish  such  information 
concerning  the  estates  in  process  of  administration  before  them  as  may 
be  requested  by  the  parties  in  interest;  (4)  give  notices  to  creditors  as 
herein  provided;  (5)  make  up  records  embodying  the  evidence,  or  the 
substance  thereof,  as  agreed  upon  by  the  parties  in  all  contested  matters 
arising  before  them,  whenever  rec|uested  to  do  so  by  either  of  the  parties 
thereto,  together  with  their  findings  therein,  and  transmit  them  to  the 
judges;  (6)  prepare  and  file  the  schedules  of  property  and  lists  of  credit- 
ors required  to  be  filed  by  the  bankrupts,  or  cause  the  same  to  be  done, 
when  the  bankrupts  fail,  refuse,  or  neglect  to  do  so;  (7)  safely  keep, 
perfect,  and  transmit  to  the  clerks  the  records,  herein  required  to  be 
kept  by  them,  when  the  cases  are  concluded;  (8)  transmit  to  the  clerks 
such  papers  as  may  be  on  file  before  them  whenever  the  same  are  needed 
in  any  proceedings  in  courts,  and  in  like  manner  secure  the  return  of 
such  papers  after  they  have  been  used,  or,  if  it  be  impracticable  to  trans- 
mit the  original  papers,  transmit  certified  copies  thereof  by  mail;  (9) 
upon  application  of  any  party  in  interest,  preserve  the  evidence  taken  or 
the  substance  thereof  as  agreed  upon  by  the  parties  before  them  when 
a  stenographer  is  not  in  attendance;  and  (10)  whenever  their  respective 
offices  are  in  the  same  cities  or  towns  where  the  courts  of  bankruptcy 
convene,  call  upon  and  receive  from  the  clerks  all  papers  filed  in  courts 
of  bankruptcy  which  have  been  referred  to  them. 


1772  REMIAXTON    ON    BANKRUPTCY. 

b  Referees  shall  not  (1)  act  in  cases  in  which  they  are  directly  or  in- 
directly interested;  (2)  practice  as  attorneys  and  counselors  at  law  in  any 
bankruptcy  proceedings;  or  (3)  purchase,  directly  or  indirectly,  any 
property  of  an  estate  in  bankruptcy. 

Sec.  40.  Compensation  of  Referees. — a  Referees  shall  receive  as 
full  compensation  for  their  services,  payable  after  they  are  rendered,  a 
fee  of  fifteen  dollars  deposited  with  the  clerk  at  the  time  the  petition  is 
filed  in  each  case,  except  when  a  fee  is  not  required  from  a  voluntary 
bankrupt,  and  tzi'enty-fiz'c  cents  for  ezrry  froof  of  claim  filed  for  allon'- 
ance,  to  he  paid  from  the  estate,  if  any,  as  a'  part  of  the  cost  of  adminis- 
tration, and  from  estates  which  have  been  administered  before  them 
one  per  centum  commissions  on  all  moneys  disbursed  to  creditors  by  the 
trustee,  or  one-half  of  one  per  centum  on  the  amount  to  be  paid  to  credit- 
ors upon  the  confirmation  of  a  composition. 

b  AMienever  a  case  is  transferred  from  one  referee  to  another  the  judge 
shall  determine  the  proportion  in  which  the  fee  and  commissions  therefor 
shall  be  divided  between  the  referees. 

c  In  the  event  of  the  reference  of  a  case  being  revoked  before  it  is  con- 
cluded, and  when  the  case  is  specially  referred,  the  judge  shall  determine 
what  part  of  the  fee  and  commission  shall  be  paid  to  the  referee. 

Sec.  41.  Contempts  before  Referees. — a  A  person  shall  not,  in 
proceedings  before  a  referee,  (1)  disobey  or  resist  any  lawful  order,  proc- 
ess, or  writ;  (2)  misbehave  during  a  hearing  or  so  near  the  place  thereof 
as  to  obstruct  the  same;  (3)  neglect  to  produce,  after  having  been  ordered 
to  do  so,  any  pertinent  document;  or  (4)  refuse  to  appear  after  having 
been  subpoenaed,  or,  upon  appearing,  refuse  to  take  the  oath  as  a  witness, 
or,  after  having  taken  the  oath,  refuse  to  be  examined  according  to  law: 
Provided,,  That  no  person  shall  be  required  to  attend  as  a  witness  before 
a  referee  at  a  place  outside  of  the  State  of  his  residence,  and  more  than 
one  hundred  miles  from  such  place  of  residence,  and  only  in  case  his  law- 
ful mileage  and  fee  for  one  day's  attendance  shall  be  first  paid  or  tendered 
to  him. 

b  The  referee  shall  certify  the  facts  to  the  judge,  if  any  person  shall 
do  any  of  the  things  forbidden  in  this  section.  The  judge  shall  there- 
upon, in  a  summary  manner,  hear  the  evidence  as  to  the  acts  complained 
of,  and,  if  it  is  such  as  to  warrant  him  in  so  doing,  punish  such  person  in 
the  same  manner  and  to  the  same  extent  as  for  a  contempt  committed 
before  the  court  of  bankruptcy,  or  commit  such  person  upon  the  same 
conditions  as  if  the  doing  of  the  forbidden  act  had  occurred  with  refer- 
ence to  the  process  of,  or  in  the  presence  of,  the  court. 

Sec.  42.  Records  of  Referees.— a  The  records  of  all  proceedings  in 
each  case  before  a  referee  shall  be  kept  as  nearly  as  may  be  in  the  same 
manner  as  records  are  now  kept  in  equity  cases  in  circuit  courts  of  the 
United  States. 


THE   BANKRUPTCY  ACT   OE    1898.  1773 

b  A  record  of  the  proceedings  in  each  case  shall  be  kept  in  a  separate 
book  or  books,  and  shall,  together  with  the  papers  on  file,  constitute  the 
records  of  the  case. 

c  The  book  or  books  containing  a  record  of  the  proceedings  shall,  when 
the  case  is  concluded  before  the  referee,  be  certified  to  by  him,  and,  to- 
gether with  such  papers  as  are  on  file  before  him,  be  transmitted  to  the 
court  of  bankruptcy  and  shall  there  remain  as  a  part  of  the  records  of 
the  court. 

Sec.  43.  Referee's  Absence  or  Disability. — a  Whenever  the  office 
of  a  referee  is  vacant,  or  its  occupant  is  absent  or  disqualified  to  act, 
the  judge  may  act,  or  may  appoint  another  referee,  or  another  referee 
holding  an  appointment  under  the  same  court  may,  by  order  of  the  judge, 

temporarily  fill  the  vacancy. 

« 

Sec.  44.  Appointment  of  Trustees. — a  The  creditors  of  a  bankrupt 
estate  shall,  at  their  first  meeting  after  the  adjudication  or  after  a  vacancy 
has  occurred  in  the  office  of  trustee,  or  after  an  estate  has  been  reopened, 
or  after  a  composition  has  been  set  aside  or  a  discharge  revoked,  or  if 
there  is  a  vacancy  in  the  office  of  trustee,  appoint  one  trustee  or  three 
trustees  of  such  estate.  If  the  creditors  do  not  appoint  a  trustee  or 
triistees  as  herein  provided,  the  court  shall  do  so. 

Sec.  45.  Qualification  of  Trustees. — a  Trustees  may  be  (1)  indi- 
viduals who  are  respectively  competent  to  perform  the  duties  of  that 
office,  and  reside  or  have  an  office  in  the  judicial  district  within  which 
they  are  appointed,  or  (2)  corporations  authorized  by  their  charters  or 
by  law  to  act  in  such  capacity  and  having  an  office  in  the  judicial  district 
within  which  they  are  appointed. 

Sec.  46.  Death  or  Removal  of  Trustees. — a  The  death  or  removal 
of  a  trustee  shall  not  abate  any  suit  or  proceeding  which  he  is  prosecuting 
or  defending  at  the  time  of  his  death  or  removal,  but  the  same  may  be 
proceeded  with  or  defended  by  his  joint  trustee  or  successor  in  the  same 
manner  as  though  the  same  had  been  commenced  or  was  being  defended 
by  such  joint  trustee  alone  or  by  such  successor. 

Sec.  47.  Duties  of  Trustees. — a  Trustees  shall  respectively  (1)  ac- 
count for  and  pay  over  to  the  estates  under  their  control  all  interest  re- 
ceived by  them  upon  property  of  such  estates;  (2)  collect  and  reduce 
to  money  the  property  of  the  estates  for  which  they  are  trustees,  under 
the  direction  of  the  court,  and  close  up  the  estates  as  expeditiously  as 
is  compatible  with  the  best  interests  of  the  parties  in  interest;  (3)  deposit 
all  money  received  by  them  in  one  of  the  designated  depositories ;  (4) 
disburse  money  only  by  check  or  draft  on  the  depositories  in  which  it 
has  been  deposited;  (5)  furnish  such  information  concerning  the  estates 
of  which  they  are  trustees  and  their  administration  as  may  be  requested 


1774  REMINGTON   ON   BANKRUPTCY. 

by  parties  in  interest;  (6)  keep  regular  accounts  showing  all  amounts  re- 
ceived and  from  what  sources  and  all  amounts  expended  and  on  what 
accounts;  (7)  lay  before  the  final  meeting  of  the  creditors  detailed  state- 
ments of  the  administration  of  the  estate;  (8)  make  final  reports  and  file 
final  accounts  with  the  courts  fifteen  days  before  the  days  fixed  for  the 
final  meetings  of  the  creditors;  (9)  pay  dividends  within  ten  days  after 
they  are  declared  by  the  referees;  (10)  report  to  the  courts,  in  writing, 
the  condition  of  the  estates  and  the  amounts  of  money  on  hand,  and  such 
other  details  as  may  be  required  by  the  courts,  within  the  first  month 
after  their  appointment  and  every  two  months  thereafter,  unless  otherwise 
ordered  by  the  courts;  and  (11)  set  apart  the  bankrupt's  exemptions  and 
report  the  items  and  estimated  value  thereof  to  the  court  as  soon  as  prac- 
ticable after  their  appointment. 

h  Whenever  three  trustee*  have  been  appointed  for  an  estate,  the  con- 
currence of  at  least  two  of  them  shall  be  necessary  to  the  validity  of  their 
every  act  concerning  the  administration  oi  the  estate. 

c  The  trustee  shall,  within  thirty  days  after  the  adjudication,  file  a  cer- 
tified copy  of  the  decree  of  adjudication-  in  the  office  where  conveyances 
of  real  estate  are  recorded  in  every  county  zvhere  the  bankrupt  ounis  real 
estate  not  exempt  from  execution,  and  pay  the  fee  for  such  filing,  and  he 
shall  receive  a  compensation  of  fifty  cents  for  each  copy  so  filed,  zvhich, 
together  zvith  the  filing  fee,  shall  he  paid  out  of  the  estate  of  the  bankrupt 
as  a  part  of  the  cost  and  disbursements  of  the  proceedings. 

Sec.  48.  Compensation  of  Trustees,  a  Trustees  shall  receive  for 
their  services,  payable  after  they  are  rendered,  a  fee  of  five  dollars  de- 
posited with  the  clerk  at  the  time  the  petition  is  filed  in  each  case,  except 
when  a  fee  is  not  required  from  a  voluntary  bankrupt,  and  from  estates 
which  they  have  administered,  such  commissions  on  all  moneys  disbursed 
by  them  as  may  be  allowed  by  the  courts,  not  to  exceed  six  per  centum 
on  the  first  five  hundred  dollars  or  less,  four  per  centum  on  monkeys  in 
excess  of  five  hundred  dollars  and  less  than  fifteen  hundred  dollars,  tzuo 
per  centum  on  moneys  in  excess  of  fifteen  hundred  dollars  and  less  than 
ten  thousand  dollars  and  one  per  centum  on  moneys  in  excess  of  ten 
thousand  dollars.  And  in  case  of  the  confirnmtion  of  a  composition  after 
the  trustee  has  qualified  the  court  may  allozv  him,  as  compensation,  not 
to  exceed  one-half  of  one  per  centum  of  the  amount  to  be  paid  the  credit- 
ors on  such  compositio)!. 

b  In  the  event  of  an  estate  being  administered  by  three  trustees  instead 
of  one  trustee  or  by  successive  trustees,  the  court  shall  ^apportion  the  fees 
and  commissions  between  them  according  to  the  services  actually  rendered, 
so  that  there  shall  not  be  paid  to  trustees  for  the  administering  of  any 
estate  a.  greater  amount  than  one  trustee  would  be  entitled  to. 

c  The  court  may.  in  its  discretion,  withhold  all  compensation  from  any 
trustee  who  has  been  removed  for  cause. 


the:  bankruptcy  act  of  1898.  1775 

Sec.  49.  Accounts  and  Papers  of  Trustees. — a  The  accounts  and 
papers  of  trustees,  shall  be  opened  to  the  inspection  of  officers  and  all 
parties  in  interest. 

Sec.  50.  Bonds  of  Referees  and  Trustees. — a  Referees,  before  as- 
suming the  duties  of  their  offices,  and  within  such  time  as  the  district 
courts  of  the  United  States  having  jurisdiction  shall  prescribe,  shall  re- 
spectively qualify  by  entering  into  bond  to  the  United  States  in  such  sum 
as  shall  be  fixed  by  such  courts,  not  to  exceed  five  thousand  dollars,  with 
such  sureties  as  shall  be  approved  by  such  courts,  conditioned  for  the 
faithful  performance  of  their  official  duties. 

b  Trustees,  before  entering  upon  the  performance  of  their  official  du- 
ties, and  within  ten  days  after  their  appointment,  or  within  such  further' 
time,  not  to  exceed  five  days,  as  the  court  may  permit,  shall  respectively 
qualify  by  entering  into  bond  to  the  United  States,  with  such  sureties  as 
shall  be  approved  by  the  courts,  conditioned  for  the  faithful  performance 
of  their  official  duties, 

c  The  creditors  of  a  bankrupt  estate,  at  their  first  meeting  after  the  ad- 
judication, or  after  a  vancancy  has  occurred  in  the  office  of  trustee,  or 
after  an  estate  has  been  reopened,  or  after  a  composition  has  been  set 
aside  or  a  discharge  revoked,  if  there  is  a  vancancy  in  the  office  of  trus- 
tee, shall  fix  the  amount  of  the  bond  of  the  trustee;  they  may  at  any 
time  increase  the  amount  of  the  bond.  If  the  creditors  do  not  fix  tl;ie 
amount  of  the  bond  of  the  trustee  as  herein  provided  the  court  shall  do  so. 

d  The  court  shall  require  evidence  as  to  the  actual  value  of  the  prop- 
erty of  sureties. 

e  There  shall  be  at  least  two  sureties  upon  each  bond. 

/  The  actual  value  of  the  property  of  the  sureties,  over  and  above  their 
liabilities  and  exemptions,  on  each  bond  shall  equal  at  least  the  amount 
of  such  bond.  • 

g  Corporations  organized  for  the  purpose  of  becoming  sureties  upon 
bonds,  or  authorized  by  law  to  do  so,  may  be  accepted  as  sureties  upon 
the  bonds  of  referees  and  trustees  whenever  the  courts  are  satisfied  that 
the  rights  of  all  parties  in  interest  will  be  thereby  amply  protected. 

h  Bonds  of  referees,  trustees,  and  designated  depositories  shall  be  filed 
of  record  in  the  office  of  the  clerk  of  the  court  and  may  be  sued  upon  in 
the  name  of  the  United  States  for  the  use  of  any  person  injured  by  a 
breach  of  their  conditions. 

i  Trustees  shall  not  be  liable,  personally  or  on  their  bonds,  to  the  United 
States,  for  any  penalties  or  forfeitures  incurred  by  the  bankrupts  under 
this  act,  of  whose  estates  they  are  respectively  trustees. 

y  Joint  trustees  may  give  joint  or  several  bonds. 

k  If  any  referee  or  trustee  shall  fail  to  give  bond,  as  herein  provided 
and  within  the  time  limited,  he  shall  be  deemed  to  have  declined  his  ap- 
pointment, and  such  failure  shall  create  a  vacancy  in  his  office. 


1776  REMINGTON   ON   BANKRUPTCY. 

/  Suits  upon  referees'  bonds  shall  not  be  brought  subsequent  to  two 
years  after  the  alleged  breach  of  the  bond. 

m  Suits  upon  trustees'  bonds  shall  not  be  brought  subsequent  to  two 
years  after  the  estate  has  been  closed. 

Sec.  51.  Duties  of  Clerks. — a  Clerks  shall  respectively  (1)  account 
for,  as  for  other  fees  received  by  them,  the  clerk's  fee  paid  in  each  case 
and  such  other  fees  as  may  be  received  for  certified  copies  of  records 
which  may  be  prepared  for  persons  other  than  officers;  (2)  collect  the 
fees  of  the  clerk,  referee,  and  trustee  in  each  case  instituted  before  filing 
the  petition,  except  the  petition  of  a  proposed  voluntary  bankrupt  which 
is  accompanied  by  an  affidavit  stating  that  the 'petitioner  is  without,  and 
can  not  obtain,  the  money  with  which  to  pay  such  fees;  (3)  deliver  to 
the  referees  upon  application  all  papers  which  may  be  referred  to  them, 
or,  if  the  offices  of  such  referees  are  not  in  the  same  cities  or  towns  as 
the  offices  of  such  clerks,  transmit  such  papers  by  mail,  and  in  like  manner 
return  papers  which  were  received  from  such  referees  after  they  have 
been  used;  (4)  and  within  ten  days  after  each  case  has  been  closed  pay 
to  the  referee,  if  the  case  was  referred,  the  fee  collected  for  him,  and  to 
the  trustee  the  fee  collected  for  him  at  the  time  of  filing  the  petition. 

Sec.  52.  Compensation  of  Clerks  and  Marshals. — o  Clerks  shall 
respectively  receive  as  full  compensation  for  their  service  to  each  estate, 
a  filing  fee  of  ten  dollars,  except  when  a  fee  is  not  required  from  a  vol- 
untary bankrupt. 

b  Marshals  shall  respectively  receive  from  the  estate  where  an  adju- 
dication in  bankruptcy  is  made,  except  as  herein  otherwise  provided,  for 
the  performance  of  their  services  in  the  proceedings  in  bankri\ptcy,  the 
same  fees,  and  account  for  them  in  the  same  way,  as  they  are  entitled  to 
receive  for  the  performance  of  the  same  or  similar  services  in  other  cases 
in  accordance  with  laws  now  in  force,  or  such  as  fnay  be  hereafter  enacted, 
fixing  the  compensation  of  marshals. 

Sec.  53.  Duties  of  Attorney  General.— a  The  Attorney-General 
shall  annually  lay  before  Congress  statistical  tables  showing  for  the  whole 
country,  and  by  States,  the  number  of  cases  during  the  year  of  voluntary 
and  involuntary  bankruptcy;  the  amount  of  the  property  of  the  estates; 
the  dividends  paid  and  the  expenses  of  administering  such  estates;  and 
such  other  like  information  as  he  may  deem  important. 

Sec.  54.  Statistics  of  Bankruptcy  Proceedings. — a  Officers  shall 
furnish  in  writing  and  transmit  by  mail  such  information  as  is  within  their 
knowledge,  and  as  may  be  shown  by  the  records  and  papers  in  their  pos- 
session, to  the  Attorney-General,  for  statistical  purposes,  within  ten  days 
after  being  requested  by  him  to  do  so. 


THE   BAXKRUPTCY   ACT   OF    1898.  1777 

CHAPTER  VI. 
Creditors. 

,  Sec.  55.  Meetings  of  Creditors. — a  The  court  shall  cause  the  first 
meeting  of  the  creditors  of  a  bankrupt  to  be  held,  not  less  than  ten  nor 
more  than  thirty  days  after  the  adjudication,  at  the  county  seat  of  the 
county  in  which  the  bankrupt  has  had  his  principal  place  of  busi^iess,  re- 
sided, or  had  his  domicile;  or  if  that  place  would  be  manifestly  incon- 
venient as  a  place  of  meeting  for  the  parties  in  interest,  or  if  the  bankrupt 
is  one  who  does  not  do  business,  reside,  or  have  his  domicile  within  the 
United  States,  the  court  shall  fix  a  place  for  the  meeting  which  is  the  most 
convenient  for  parties  in  interest.  If  such  meeting  should  by  any  mis- 
chance not  be  held  within  such  time,  the  court  shall  fix  the  date,  as  soon 
as  may  be  thereafter,  when  it  ^hall  be  held. 

b  At  the  first  meeting  of  creditors  the  judge  or  referee  shall  preside, 
and,  before  proceeding  with  the  other  business,  may  allow  or  disallow  the 
claims  of  creditors  there  presented,  and  may  publicly  examine  the  bank- 
rupt or  cause  him  to  be  examined  at  the  instance  of  any  creditor. 

c  The  creditors  shall  at  each  meeting  take  such  steps  as  may  be  pertinent 
and  necessary  for  the  promotion  of  the  best  interests  of  the  estate  and 
the  enforcement  of  this  act. 

d  A  meeting  of  creditors,  subsequent  to  the  first  one,  may  be  held  at  any 
time  and  place  when  all  of  the  creditors  who  have  secured  the  allowance 
of  their  claims  sign  a  written  consent  to  hold  a  meeting  at  such  time  and 
place. 

e  The  court  shall  call  a  meeting  of  creditors  whenever  one-fourth  or 
more  in  number  of  those  who  have  proven  their  claims  shall  file  a  writ- 
ten request  to  that  effect;  if  such  request  is  signed  by  a  majority  of  such 
creditors,  which  number  represents  a  majority  in  amount  of  such  claims, 
and  contains  a  request  for  such  meeting  to  be  held  at  a  designated  place, 
the  court  shall  call  such  meeting  at  such  place  within  thirty  days  after  the 
date  of  the  filing  of  the  request. 

/  Whenever  the  affairs  of  the  estate  are  ready  to  be  closed  a  final  meet- 
ing of  creditors  shall  be  ordered. 
■*  Sec.  56.  Voters  at  Meetings  of  Creditors. — a  Creditors  shall  pass 
upon  matters  submitted  to  them  at  their  meetings  by  a  majority  vote  in 
r.umber  and  amount  of  claims  of  all  creditors  whose  claims  have  been  al- 
lowed and  are  present,  except  as  herein  otherwise  provided. 

b  Creditors  holding  claims  which  are  secured  or  have  priority  shall  not, 
in  respect  to  such  claims,  be  entitled  to  vote  at  creditors'  meetings,  nor 
shall  such  claims  be  counted  in  computing  either  the  number  of  creditors 
cr  the  amount  of  their  claims,  unless  the  amounts  of  such  claims  exceed 
tHe  value  of  such  securities  or  priorities,  and  then  only  for  such  excess. 

Sec.  57.  Proof  and  Allowance  of  Claims. — a  Proof  of  claims  shall 
consist  of  a  statement  under  oath,  in  writing,  signed  by  a  creditor  setting 
2  Rem  B— 37 


1778  re;mington  on  bankruptcy. 

forth  the  claim,  the  consideration  therefor,  and  whether  any,  and,  if  so 
what,  securities  are  held  therefor,  and  whatever  any,  and,  if  so  what,  pay- 
ments have  been  made  thereon,  and  that  the  sum  claimed  is  justly  owing 
from  the  bankrupt  to  the  creditor. 

b  Whenever  a  claim  is  founded  upon  an  instrument  of  writing,  such  in- 
strument, unless  lost  or  destroyed,  shall  be  filed  with  the  proof  of  claim. 
If  such  instrument  is  lost  or  destroyed,  a  statement  of  such  fact  and  of  the 
circumstances  of  such  loss  or  destruction  shall  be  filed  under  oath  with 
the  claim.  After  the  claim  is  allowed  or  disallowed,  such  instrument  may 
be  withdrawn  by  permission  of  the  court,  upon  leaving  a  copy  thereof  on 
file  with  the  claim. 

c  Claims  after  being  proved  may,  for  tbe  purpose  of  allowance,  be  filed 
by  the  claimants  in  the  court  where  the  proceedings  are  pending  or  be- 
fore the  referee  if  the  case  has  been  referred. 

d  Claims  which  have  been  duly  proved  shall  be  allowed,  upon  receipt 
by  or  upon  presentation  to  the  court,  unless  objection  to  their  allowance 
shall  be  made  by  parties  in  interest,  or  their  consideration  be  continued 
for  cause  by  the  court  upon  its  own  motion. 

e  Claims  of  secured  creditors  and  those  who  have  priority  may  be  al- 
lowed to  enable  such  creditors  to  participate  in  the  proceedings  at  cred- 
itors' meetings  held  prior  to  the  determination  of  the  value  of  their  secu- 
rities or  priorities,  but  shall  be  allowed  for  such  sums  only  as  to  the  courts 
seem  to  be  owing  over  and  above  the  value  of  their  securities  or  priorities. 

/  Objections  to  claims  shall  be  heard  and  determined  as  soon  as  the 
convenience  of  the  court  and  the  best  interests  of  the  estates  and  the  claim- 
ants will  permit. 

g  The  claims  of  creditors  who  have  received  preferences,  voidable  un- 
der section  sixty,  subdivision  b,  or  to  whom  conveyances,  transfers,  as- 
signments, or  incumbrances,  void  or  voidable  under  section  sixty-seven, 
subdivision  e,  have  been  made  or  given,  shall  not  be  allowed  unless  such 
creditors  shall  surrender  such  preferences,  conveyances,  transfers,  assigji- 
ments,  or  incnuibrances. 

h  The  value  of  securities  held  by  secured  creditors  shall  be  determined 
by  converting  the  same  into  money  according  to  the  terms  of  the  agree- 
ment pursuant  to  which  such  securities  were  delivered  to  such  creditors  or* 
by  such  creditors  and  the  trustee,  by  agreement,  arbitration,  compromise, 
or  litigation,  as  the  court  may  direct,  and  the  amount  of  such  value  shall 
be  credited  upon  such  claims,  and  a  dividend  shall  be  paid  only  on  the  un- 
paid balance. 

i  Whenever  a  creditor,  whose  claim  against  a  bankrupt  estate  is  secured 
by  the  individual  undertaking  of  any  person,  fails  to  prove  such  claim, 
such  person  may  do  so  in  the  creditor's  name,  and  if  he  discharge  such 
undertaking  in  whole  or  in  part  he  shall  be  subrogated  to  that  extent  to 
the  rights  of  the  creditor. 

y  Debts  owing  to  the  United  States,  a  State,  a  county,  a  district  or  a 


THE  BANKRUPTCY  ACT  OF    1898.  1779 

municipality  as  a  penalty  or  forfeiture  shall  not  be  allowed,  except  for  the 
amount  of  the  pecuniary  loss  sustained  by  the  act,  transaction,  or  proceed- 
ing out  of  which  the  penalty  or  forfeiture  arose,  with  reasonable  and  ac- 
tual costs  occasioned  thereby  and  such  interest  as  may  have  accrued 
thereon  according  to  law. 

k  Claims  which  have  been  allowed  may  be  reconsidered  for  cause  and 
rcallowed  or  rejected  in  whole  or  in  part,  according  to  the  equities  of  the 
case,  before  but  not  after  the  estate  has  been  closed. 

/  Whenever  a  claim  shall  have  been  reconsidered  and  rejected,  in  whole 
or  in  part,  upon  which  a  divi'dend  has  been  paid,  the  trustee  may  recover 
from  the  creditor  the  amount  of  the  dividend  received  upon  the  claim  if 
rejected  in  whole,  or  the  proportional  part  thereof  if  rejected  only  in  part. 

ni  The  claim  of  any  estate  which  is  being  administered  in  bankruptcy 
against  any  like  estate  may  be  proved  by  the  trustee  and  allowed  by  the 
court  in  the  same  manner  an'd  upon  like  terms  as  the  claims  of  other 
creditors. 

;/  Claims  shall  not  be  proved  against  a  bankrupt  estate  subsequent  to  one 
year  after  the  adjudication ;  or  if  they  are  liquidated  by  litigation  and  the 
final  judgment  therein  is  rendered  within  thirty  days  before  or  after  the 
expiration  of  such  time,  then  within  sixty  days  after  the  rendition  of  such 
judgment:  Provided,  That  the  right  of  infants  and  insane  persons  with- 
out guardians,  without  notice  of  the  proceedings,  may  continue  six 
months   longer. 

Sec.  58.  Notices  to  Creditors. — a  Creditors  shall  have  at  least  ten 
days,'  notice  by  mail,  to  their  respective  addresses  as  they  appear  in  the 
list  of  creditors  of  the  bankrupt,  or  as  afterwards  filed  with  the  papers  in 
the  case  by  the  creditors,  unless  they  waive  notice  in  writing,  of  (1)  all 
examinations  of  the  bankrupt;  (2)  all  hearings  upon  applications  for  the 
confirmation  of  compositions  or  the  discharge  of  bankrupts;  (3)  all  meet- 
ings of  creditors;  (4)  all  proposed  sales  of  property;  (5)  the  declaration 
and  time  of  payment  of  dividends;  (6)  the  filing  of  the  final  accounts  of 
the  trustee,  and  the  time  when  and  the  place  where  they  will  be  examined 
and  passed  upon;  (7)  the  proposed  compromise  of  any  controversy,  and 
(8)   the  proposed  dismissal  of  the  proceedings. 

b  Notice  to  creditors  of  the  first  meeting  shall  be  published  at  least  once 
and  may  be  published  such  number  of  additional  times  as  the  court  may 
direct;  the  last  publication  shall  be  at  least  one  week  prior  to  the  date 
fixed  for  the  meeting.  Other  notices  may  be  published  as  the  court  shall 
direct. 

c  All  notices  shall  be  given  by  the  referee,  unless  otherwise  ordered  by 
the  judge. 

Sec.  59.  Who  may  file  and  dismiss  Petitions. — a  Any  qualified  per- 
son may  file  a  petition  to  be  adjudged  a  voluntary  bankrupt. 

h  Three  or  more  creditors  who  have  provable  claims  against  any  person 


1780  REMINGTON    ON    BANKRUPTCY. 

which  amount  in  the  aggregate,  in  excess  of  the  value  of  securities  held 
by  them,  if  any,  to  five  hundred  dollars  or  over ;  or  if  all  of  the  creditor:^ 
of  such  person  are  less  than  twelve  in  number,  then  one  of  such  creditors 
v;hose  claim  equals  such  amount  may  file  a  petition  to  have  him  adjudged 
a  bankrupt. 

c  Petitions  shall  be  filed  in  duplicate,  one  copy  for  the  clerk  and  one  for 
service  on  the  bankrupt. 

d  If  it  be  averred  in  the  petition  that  the  creditors  of  the  bankrupt  are 
less  than  twelve  in  number,  and  less  than  three  creditors  have  joined  as 
petitioners  therein,  and  the  answer  avers  the  existence  of  a  larger  num- 
ber of  creditors,  there  shall  be  filed  with  the  answer  a  list  under  oath  of  all 
the  creditors,  with  their  addresses,  and  thereupon  the  court  shall  cause 
all  such  creditors  to  be  notified  of  the  pendency  of  such  petition  and  shall 
delay  the  hearing  upon  such  petition  for  a  reasonable  time,  to  the  end 
that  parties  in  interest  shall  have  an  opportunity  to  be  heard ;  if  upon  such 
hearing  it  shall  appear  that  a  sufficient  number  have  joined  in  such  petition, 
or  if  prior  to  or  during  such  hearing  a  sufficient  number  shall  join  therein, 
the  case  may  be  proceeded  with,  but  otherwise  it  shall  be  dismissed. 

e  In  computing  the  number  of  creditors  of  a  bankrupt  for  the  purpose 
of  determining  how  many  creditors  must  join  in  the  petition,  such  cred- 
itors as  were  employed  by  him  at  the  time  of  the  filing  of  the  petition  or 
are  related  to  him  by  consanguinity  or  affinity  within  the  third  degree,  as 
determined  by  the  common  law,  and  have  not  joined  in  the  petition,  shall 
not  be  counted. 

/  Creditors  other  than  original  petitioners  may  at  any  time  enter  their 
appearance  and  join  in  the  petition,  or  file  an  answ^er  and  be  heard  in  op- 
position to  the  prayer  of  the  petition. 

g  A  voluntary  or  involuntary  petition  shall  not  be  dismissed  by  the  pe- 
titioner or  petitioners  or  for  want  of  prosecution  or  by  consent  of  parties 
until  after  notice  to  the  creditors. 

Sec.  60.  Preferred  Creditors. — a  A  person  shall  be  deemed  to  have 
given  a  preference,  if,  being  insolvent,  he  has,  untJiiii  four  niontJis  before 
the  filing  of  the  petition,  or  after  the  filing  of  the  petition  and  before  the 
adjudication,  procured  or  suffered  a  judgment  to  be  entered  against  him- 
self in  favor  of  any  person,  or  made  a  transfer  of  any  of  his  property, 
and  the  effect  of  the  enforcement  of  such  judgment  or  transfer  will  be  to 
enable  any  one  of  his  creditors  to  obtain  a  greater  percentage  of  his  debt 
than  any  other  of  such  creditors  of  the  same  class.  Where  the  preference 
consists  in  a  transfer,  such  period  of  four  months  shall  not  expire  until 
four  months  after  the  date  of  the  recording  or  registering  of  the  transfer, 
if  by  law  snch  recording  or  registering  is  required. 

&  If  a  bankrupt  shall  have  given  a  preference  and  the  person  receiving 
it,  or  to  be  benefited  thereby,  or  his  agent  acting  therein,  shall  have  had 
reasonable  cause  to  believe  that  it  was  intended  thereby  to  give  a  prefer- 


THE   BANKRUPTCY   ACT   OF    1898.  _  1781 

ence,  it  shall  be  voidable  by  the  trustee,  and  he  may  recover  the  property 
or  its  vahie  from  such  person.  And^  for  the  purpose  of  sucJi  recovery, 
any  court  of  baiikritptcy  as  hereinbefore  defined,  and  any  State  court 
which  zvould  have  had  jurisdiction  if  bankruptcy  hadjiot  intervened,  shall 
have  concurrent  jurisdiction. 

c  If  a  creditor  has  been  preferred,  and  afterwards  in  good  faith  gives 
the  debtor  further  credit  without  security  of  any  kind  for  property  which 
becomes  a  part  of  the  debtor's  estates,  the  amount  of  such  new  credit  re- 
maining unpaid  at  the  time  of  the  adjudication  in  bankruptcy  may  be  set 
off  against  the  amount  which  would  otherwise  be  recoverable  from  him. 

c?  If  a  debtor  shall,  directly  or  indirectly,  in  contemplation  of  the  filing 
of  a  petition  by  or  against  him,  pay  money  or  transfer  property  to  an  at- 
torney and  counselor  at  law,  solicitor  in  equity,  or  proctor  in  admiralty  for 
services  to  be  rendered,  the  transaction  shall  be  re-examined  by  the  court 
on  petition  of  the  trustee  or  any  creditor  and  shall  only  be  held  valid  to  the 
extent  of  a  reasonaBIe  amount  to  be  determined  by  the  court,  and  the  ex- 
cess may  be  recovered  by  the  trustee  for  the  benefit  of  the  estate. 

CHAPTER  VII. 

Estates. 

Sec.  61.  Depositories  for  Money. — a  Courts  of  bankruptcy  shall 
designate,  by  order,  banking  institutions  as  depositories  for  the  money  of 
bankrupt  estates,  as  convenient  as  may-  be  to  the  residences  of  trustees, 
and  shall  require  bonds  to  the  United  States,  subject  to  their  approval,  to 
be  given  by  such  banking  institutions,  and  may  from  time  to  time  as  oc- 
casion may  require,  by  like  order  increase  the  number  of  depositories  or 
the  amount  of  any  bond  or  change  such  depositories. 

Sec.  62.  Expenses  of  Administering  Estates. — a  The  actual  and 
necessary  expenses  incurred  by  officers  in  the  administration  of  estates 
shall,  except  where  other  provisions  are  made  for  their  payment,  be  re- 
ported in  detail,  under  oath,  and  examined  and  approved  or  disapproved  by 
the  court.  If  approved,  they  shall  be  paid  or  allowed  out  of  the  estates  in 
v/hieh  they  were  incurred. 

Sec.  63.  Debts  which  may  be  Proved. — a  Debts  of  the  bankrupt 
niay  be  proved  and  allowed  against  his  estate  which  are  (1)  a  fixed  liability, 
as  evidenced  by  a  judgment  or  an  instrument  in  writing,  absolutely  owing 
at  the  time  of  the  filing  of  the  petition  against  him,  whether  then  payable 
or  not,  with  any  interest  thereon  which  would  have  been  recoverable  at 
that  date  or  with  a  rebate  of  interest  upon  such  as  were  not  then  payable 
and  did  not  bear  interest;  (2)  due  as  costs  taxable  against  an  involun- 
tary bankrupt  who  was  at  the  time  of  the  filing  of  the  petition  against  him 
plaintiff  in  a  cause  of  action  which  would  pass  to  the  trustee  and  which 


1782  REMINGTON    ON    BANKRUPTCY. 

the  trustee  declines  to  prosecute  after  notice;  (3)  founded  upon  a  claim 
for  taxable  costs  incurred  in  good  faith  by  a  creditor  before  the  filing  of 
the  petition  in  an  action  to  recover  a  provable  debt;  (4)  founded  upon 
an  open  account,  or  upon  a  contract  express  or  implied;  and  (5)  founded 
upon  provable  debts  reduced  to  judgments  after  the  filing  of  the  petition 
and  before  the  consideration  of  the  bankrupt's  application  for  a  discharge, 
less  costs  incurred  and  interests  accrued  after  the  filing  of  the  petition  and 
up  to  the  ,time  of  the  entry  of  such  judgments. 

b  Unliquidated  claims  against  the  bankrupt  may,  pursuant  to  applica- 
tion to  the  court,  be  liquidated  in  such  manner  as  it  shall  direct,  and  may 
thereafter  be  proved  and  allowed  against  his  estate. 

Sec.  64.  Debts  which  have  Priority. — a  The  court  shall  order  the 
trustee  to  pay  all  taxes  legally  due  and  owing  by  the  bankrupt  to 
the  United  States,  State,  county,  district,  or  municipality  in  advance  of 
the  payment  of  dividends  to  creditors,  and  upon  filing  the  receipts  of 
the  proper  public  officers  for  such  payment  he  shall  be  credited  with  the 
amount  thereof,  and  in  case  any  question  arises  as  to  the  amount  or  legal- 
ity of  any  such  tax  the  same  shall  be  heard  and  determined  by  the  court. 

b  The  debts  to  have  priority,  except  as  herein  provided,  and  to  be  paid 
ill  full  out  of  bankrupt  estates,  and  the  order  of  payment  shall  be  (1)  the 
actual  and  necessary  cost  of  preserving  the  estate  subsequent  to  filing  the 
petition;  (2)  the  filing  fees  paid  by  creditors  in  involuntary  cases;  and, 
ivhere  property  of  the  bankrupt,  transferred  or  concealed  by  him  either 
before  or  after  the  filing  of  the  petition,  shall  have  been  recovered  for  the 
benefit  of  the  estate  of  the  bankrupt  by  the  efforts  and  at  the  expense  of 
one  or  niore  creditors,  the  reasonable  expenses  of  such  recovery;  (3)  the 
cost  of  administration,  including  the  fees  and  mileage  payable  to  witnesses 
as  now  or  hereafter  provided  by  the  laws  of  the  United  States,  and  one 
reasonable  attorney's  fee,  for  the  professional  services  actually  rendered, 
irrespective  of  the  number  of  attorneys  employed,  to  the  petitioning  cred- 
itors in  involuntary  cases,  to  the  bankrupt  in  involuntary  cases  while  per- 
forming the  duties  herein  prescribed,  and  to  the  bankrupt  in  voluntary 
cases,  as  the  court  may  allow;  (4)  wages  due  to  workmen,  clerks,  trav- 
eling or  city  salesmen,  or  servants  which  have  been  earned  within  three 
months  before  the  date  of  the  commencement  of  proceedings,  not  to  exceed 
tliree  hundred  dollars  to  each  claimant;  and  (5)  debts  owing  to  any  person 
who  by  the  laws  of  the  States  or  the  United  States  is  entitled  to  priority. 

c  In  the  event  of  the  confirmation  of  a  composition  being  set  aside,  or 
a  discharge  revoked,  the  property  acquired  by  the  bankrupt  in  addition  to 
his  estate  at  the  time  the  composition  was  confirmed  or  the  adjudication 
was  made  shall  be  applied  to  the  payment  in  full  of  the  claims  of  creditors 
for  property  sold  to  him  on  credit,  in  good  faith,  while  such  composition 
or  discharge  was  in  force,  and  the  residue,  if  any,  shall  be  applied  to  the 
payment  of  the  debts  which  were  owing  at  the  time  of  the  adjudication. 


THE  BANKRUPTCY   ACT   OF    1898.  1783 

-  Sec.  65.  Declarations  and  Payment  of  Dividends. — a  Dividends  of 
an  equal  per  centum  shall  be  declared  and  paid  on  all  allowed  claims,  ex- 
cept such  as  have  priority  or  are  secured. 

b  The  first  dividend  shall  be  declared  within  thirty  days  after  the  ad- 
judication, if  the  money  of  the  estate  in  excess  of  the  amount  necessary 
to  pay  the  debts  which  have  priority  and  such  claims  as  have  not  been,  but 
probably  will  be,  allowed  equals  five  per  centum  or  more  of  such  allowed 
claims.  Dividends  subsequent  to  the  first  shall  be  declared  upon  like  terms 
as  the  first  aiid  as  often  as  the  amount  shall  equal  ten  per  centum  or  more 
and  upon  closing  the  estate.  Dividends  may  be  declared  oftener  and  in 
smaller  proportions  if  the  judge  shall  so  order:  Provided,,  That  the  first 
dividend  shall  not  include  more  than  fifty  per  centum  of  the  money  of  the 
estate  in  excess  of  the  amount  necessary  to  pay  the  debts  zuhich  have  prior- 
ity and  such  claims  as  probably  zvill  be  allowed;  And  provided  further, 
That  the  final  dividend  shall  not  be  declared  zvithin  three  months  after 
the  first  dividend  shall  be  decloKcd. 

c  The  rights  of  creditors  who  have  received  dividends,  or  in  whose  favor 
final  dividends  have  been  declared,  shall  not  be  affected  by  the  proof  and 
allowance  of  claims  subsequent  to  the  date  of  such  payment  or  declara- 
tions of  dividends ;  but  the  creditors  proving  and  securing  the  allowance 
of  such  claims  shall  be  paid  dividends  equal  in  amount  to  those  already 
received  by  the  other  creditors  if  the  estate  ecjuals  so  much  before  such 
other  creditors  are  paid  any   further  dividends. 

d  Whenever  a  person  shall  have  been  adjudged  a  bankrupt  by  a  court 
without  the  United  States  and  also  by  a  court  of  bankruptcy,  creditors 
residing  within  the  United  States  shall  first  be  paid  a  dividend  equal  to 
that  received  in  the  court  without  the  United  States  by  other  creditors  be- 
fore creditors  who  have  received  a  dividend  in  such  court  shall  be  paid 
any  amounts. 

e  A  claimant  shall  not  be  entitled  to  collect  from  a  bankrupt  estate  any 
greater  amount  than  shall  accrue  pursuant  to  the  provisions  of  this  act. 

Sec.  66.  Unclaimed  Dividends. — a  Dividends  which  remain  un- 
claimed for  six  months  after  the  final  dividend  has  been  declared  shall 
be  paid  by  the  trustee  into  court. 

b  Dividends  remaining  unclaimed  for  one  year  shall,  under  the  direction 
of  the  court,  be  distributed  to  the  creditors  wdiose  claims  have  been  al- 
lowed but  not  paid  in  full,  and  after  such  claims  have  been  paid  in  full 
the  balance  shall  be  paid  to  the  bankrupt :  Provided,  That  in  case  un- 
claimed dividends  belong  to  minors  such  minors  may  have  one  year  after 
arriving  at  majority  to  claim  such  dividends. 

Sec.  67.  Liens. — a  Claims  wdiich  for  want  of  record  or  for  other  rea- 
sons would  not  have  been  valid  liens  as  against  the  claims  of  the  creditors 
of  the  bankrupt  shall  not  be  liens  against  his  estate. 

b  Whenever  a  creditor  is  prevented  from  enforcing  his  rights  as  against 


1784  REMINGTON    ON    BANKRUPTCY. 

a  lien  created,  or  attempted  to  be  created,  by  his  debtor,  who  afterwards 
becomes  a  bankrupt,  the  trustee  of  the  estate  of  such  bankrupt  shall  be 
subrogated  to  and  may  enforce  such  rights  of  such  creditor  for  the  ben- 
efit of  the  estate. 

c  A  lien  created  by  or  obtained  in  or  pursuant  to  any  suit  or  proceed- 
ing at  law  or  in  ec[uity,  including  an  attachment  upon  mesne  process  or  a 
judgment  by  confession,  which  was  begun  against  a  person  within  four 
months  before  the  filing  of  a  petition  in  bankruptcy  by  or  against  such 
person  shall  be  dissolved  by  the  adjudication  of  such  person  to  be  a  bank- 
rupt if  (1)  it  appears  that  said  lien  was  obtained  and  permitted,  while  the 
defendant  was  insolvent  and  that  its  existence  and  enforcement  will  work 
a  preference,  or  (2)  the  party  or  parties  to  be  benefited  thereby  had  rea- 
sonable cause  to  believe  the  defendant  was  insolvent  and  in  contemplation 
of  bankruptcy,  or  (3)  that  such  lien  was  sought  and  permitted  in  fraud 
of  the  provisions  of  this  act;  or  if  the  dissolution  of  such  lien  would  mili- 
tate against  the  best  interests  of  the  estate  of  such  person  the  same  shall 
not  be  dissolved,  but  the  trustee  of  the  estate  of  such  person,  for  the  ben- 
efit of  the  estate,  shall  be  subrogated  to  the  rights  of  the  holder  of  such 
lien  and  empowered  to  perfect  and  enforce  the  same  in  his  name  as  trustee 
with  like  force  and  effect  as  such  holder  might  have  done  had  not  bank- 
ruptcy proceedings  intervened. 

d  Liens  given  or  accepted  in  go8d  faith  and  not  in  contemplation  of  or 
in  fraud  upon  this  act,  and  for  a  present  consideration,  which  have  been 
recorded  according  to  law,  if  record  thereof  was  necessary  in  order  to  im- 
part notice,  shall  not  be  affected  by  this  act. 

c  That  all  conveyances,  transfers,  assignments,  or  incumbrances  of  his 
property,  or  any  part  thereof,  made  or  given  by  a  person  adjudged  a 
bankrupt  under  the  provisions  of  this  act  subsequent  to  the  passage  of 
this  act  and  within  four  months  prior  to  the  filing  of  the  petition,  with 
the  intent  and  purpose  on  his  part  to  hinder,  delay,  or  defraud  his  cred- 
itors, or  any  of  them,  shall  be  null  and  void  as  against  the  creditors  of 
such  debtor,  except  as^  to  purchasers  in  good  faith  and  for  a  present  fair 
consideration;  and  all  property  of  the  debtor  conveyed,  transferred,  as- 
signed, or  encumbered  as  aforesaid  shall,  if  he  be  adjudged  a  bankrupt, 
and  the  same  is  not  exempt  from  execution  and  liability  for  debts  by  the 
law  of  his  domicile,  be  and  remain  a  part  of  the  assets  and  estate  of  the 
bankrupt  and  shall  pass  to  his  said  trustee,  whose  duty  it  shall  be  to 
recover  and  reclaim  the  same  by  legal  proceedings  or  otherwise  for  the 
benefit  of  the  creditors.  And  all  conveyances,  transfers,  or  incumbrances 
of  his  property  made  by  a  debtor  at  any  time  within  four  months  prior 
to  the  filing  of  the  petition  against  him,  and  while  insolvent, 'which  are 
held  null  and  v^id  as  against  the  creditors  of  such  debtor  by  the  laws  of 
tliC  State,  Territory,  or  District  in  which  such  property  is  situate,  shall  be 
deemed  null  and  void  under  this  act  against  the  creditors  of  such  debtor 


THE  BANKRUPTCY   ACT   OF    1898.  1785 

if  he  be  adjudged  a  bankrupt,  and  such  property  shall  pass  to  the  assignee 
[trustee]  and  be  by  him  reclaimed  and  recovered  for  the  benefit  of  the 
creditors  of  the  bankrupt.  For  the  purpose  of  such  recovery  any  court  of 
bankruptcy  as  herein,hefore  defined,  and  any  State  court  zi^hich  would  haz'e 
had  jurisdiction  if  bankruptcy  had  not  intervened,  shall  have  concurrent 
jurisdiction. 

f  That  all  levies,  judgments,  attachments,  or  other  liens,  obtained 
through  legal  proceedings  against  a  person  who  is  insolvent,  at  any  time 
within  four  months  prior  to  the  filing  of  a  petition  in  bankruptcy  against 
hmi,  shall  be  deemed  null  and  void  in  case  he  is  adjudged  a  bankrupt,  and 
the  property  affected  by  the  levy,  judgment,  attachment,  or  other  lien 
shall  be  deemed  wholly  discharged  and  released  from  the  same,  and  shall 
pass  to  the  trustee  as  a  part  of  the  estate  of  the  bankrupt,  unless  the  court 
shall,  on  due  notice,  order  that  the  right  under  such  levy,  judgment,  at- 
tachment, or  other  lien  shall  be  preserved  for  the  benefit  of  the  estate; 
and  thereupon  the  same  may  pass  to  and  shall  be  preserved  by  the  trustee 
for  the  benefit  of  the  estate  as  aforesaid.  And  the  court  may  order  such 
<onveyance  as  shall  be  necessary  to  carry  the  purposes  of  this  section  into 
effect :  Provided^  That  nothing  herein  contained  shall  have  the  effect  to' 
destroy  or  impair  the  title  obtained  by  such  levy,  judgment,  attachment, 
or  other  lien,  of  a  bona  fide  purchaser  for  value  who  shall  have  acquired 
the  same  without  notice  or  reasonable  cause  for  inquiry. 

Sec.  68.  Set-OfFs  and  Counterclaims. — a  In  all  cases  of  mutual 
debts  or  mutual  credits  between  the  estate  of  a  bankrupt  and  a  creditor 
the  account  shall  be  stated  and  one  debt  shall  be  set  off  against  the  other, 
an'd  the  balance  only  shall  be  allowed  or  paid. 

b  A  set-off  or  counterclaim  shall  not  be  allowed  in  favor  of  any  debtor 
cf  the  bankrupt  which  (1)  is  not  provable  against  the  estate;  or  (2)  was 
purchased  by  or  transferred  to  him  after  the  filing  of  the  petition,  or 
within  four  months  before  such  filing,  with  a  view  to  such  use  and  with 
knowledge  or  notice  that  such  bankrupt  was  insolvent,  or  had  committed 
a.n  act  of  bankruptcy. 

Sec.  69.  Possession  of  Property. — a  A  judge  may,  upon  satis- 
fyctory  proof,  by  affidavit,  that  a  bankrupt  against  whom  an  involuntary 
petition  has  been  filed  and  is  pending  has  committed  an.  act  of  bank- 
ruptcy, or  has  neglected  or  is  neglecting,  or  is  about  to  so  neglect' his  prop- 
erty that  it  has  thereby  deterioated  or  is  thereby  deteriorating  or  is  about 
thereby  to  deteriorate  in  value,  issue  a  warrant  to  the  marshal  to  seize 
and  hold  it  subject  to  further  orders.  Before  such  warrant  is  issued  the 
petitioners  applying  therefor  shall  enter  into  a  bond  in  such  an  amount 
as  the  judge  shall. fix,  with  such  sureties  as  he  shall  approve,  conditioned 
to  indemnify  such  bankrupt  for  such  damages  as  he  shall  sustain  in  the 
event  such  seizure  shall  prove  to  have  been  wrongfully  obtained.     Such 


1786  REMINGTON    ON    BANKRUPTCY. 

property  shall  be  released,  if  such  bankrupt  shall  give  bond  in  a  sum 
which  shall  be  fixed  by  the  judge,  with  such  sureties  as  he  shall  approve, 
conditioned  to  turn  over  such  property,  or  pay  the  value  thereof  in  money 
to  the  trustee,  in  the  event  he  is  adjudged  a  bankrupt  pursuant  to  such 
petition. 

Sec.  70.  Title  to  Property. — a  The  trustee  of  the  estate  of  a  bank- 
rupt, upon  his  appointment  and  qualification,  and  his  successor  or  suc- 
cessors, if  he  shall  have  one  or  more,  upon  his  or  their  appointment  and 
qualification,  shall  in  turn  be  vested  by  operation  of  law  with  the  .title 
of  the  bankrupt,' as  of  the  date  he  was  adjudged  a  bankrupt,  except  in 
so  far  as  it  is  to  property  which  is  exempt,  to  all  (1)  documents  relating 
to  his  property;  (2)  interests  in  patents,  patent  rights,  copyrights,  and 
trade-marks;  (3)  powers  which  he  might  have  exercised  for  his  own 
benefit,  but  not  those  which  he  might  have  exercised  for  some  other  per- 
son; (4)  property  transferred  by  him  in  fraud  of  his  creditors;  (5)  prop- 
erty which  prior  to  the  filing  of  the  petition  he  could  by  any  means  have 
transferred  or  which  might  have  been  levied  upon  and  sold  under  judicial 
process  against  him :  Provided,  That  when  any  bankrupt  shall  have  any 
insurance  policy  which  has  a  cash  surrender  value  payable  to  himself,  his 
estate,  or  personal  representatives,  he  may,  within  thirty  days  after  the 
cash  surrender  value  has  been  ascertained  and  stated  to  the  trustee  by  the 
company  issuing  the  same,  pay  or  secure  to  the  trustee  the  sum  so  as- 
certained and  stated,  and  continue  to  hold,  own,  and  carry  such  policy 
free  from  the  claims  of  the  creditors  participating  in  the  distribution  of 
his  estate  under  the  bankruptcy  proceedings,  otherwise  the  policy  shall 
pass  to  the  trustee  as  assets;  and  (6)  rights  of  action  arising  upon  con- 
tracts or  from  the  unlawful  taking  or  detention  of,  or  injury  to,  his 
property. 

b  All  real  and  personal  property  belonging  to  bankrupt  estates  shall 
be  appraised  by  three  disinterested  appraisers;  they  shall  be  appointed  by, 
and  r£port  to,  the  court.  Real  and  personal  property  shall,  when  prac- 
ticable,'be  sold  subject  to  the  approval  of  the  court;  it  shall  not  be  sold 
otherwise  than  subject  to  the  approval  of  the  court  for  less  than  seventy- 
Hwe  per  centum  of  its  appraised  value. 

c  The  title  to  property  of  a  bankrupt  estate  which  has  been  sold,  as 
herein  provided,  shall  be  conveyed  to  the  purchaser  by  the  trustee. 

d  Whenever  a  composition  shall  be  set  aside,  or  discharge  revoked,  the 
trustee  shall,  upon  his  appointment  and  qualification,  be  vested  as  herein 
provided  with  the  title  to  all  of  the  property  of  the  bankrupt  as  of  the  date 
of  the  final  decree  setting  aside  the  composition  or  revoking  the  discharge. 

e  The  trustee  may  avoid  any  transfer  by  the  bankrupt  of  his  property 
vv'hich  any  creditor  of  such  bankrupt  might  have  avoided,  and  may  re- 
cover the  property  so  transferred,  or  its  value,  from  the  person  to  whom 
it  was  transferred,  unless  he  was  a  bona  fide  holder  for  value  prior  to 


THE   BANKRUPTCY   ACT   OF    1898.  1787 

the  date  of  the  adjudication.  Such  property  may  be  recovered  or  its  value 
collected  from  whoever  may  have  received  it,  except  a  bona  fide  holder 
for  value.  For  the  purpose  of  such  recovery  any  court  of  bankruptcy  as 
hereinbefore  defined,  and  'any  State  court  zvhich  zvould  have  had  juris- 
diction if  bankruptcy  had  not  intervened,  shall  have  concurrent  juris- 
diction. 

f  Upon  the  confirmation  of  a  composition  offered  by  a  bankrupt,  the 
title  to  his  property  shall  thereupon  revest  in  him. 

Sec.  71. — That  the  clerks  of  the  several  district  courts  of  the  United 
States  shall  prepare  and  keep  in  their  respective  offices  complete  and 
convenient  indexes  of  all  petitions  and  discharges  in  bankruptcy  hereto- 
fore or  hereafter  filed  in  the  said  courts,  and  shall,  zvhen  requested  so  to 
do,  issue  certifieates  of  search  certifying  as  to  zvhether  or  not  any  such 
petitions  or  discharges  have  been  filed;  and  said  clerks  shall  be  entitled  to 
receive  for  such  certificates  the  same  fees  as  nozv  allowed  by  lazv  for 
certificates  as  to  judgments  in  said  courts:  Provided,,  That  said  bank- 
ruptcy indexes  and  dockets  shall  at  all  times  be  open  to  inspection  and  ex- 
amination by  all  persons  or  corporations  zvithout  any  fee  or  charge 
therefor. 

Sec.  72. — That  neither  the  referee  nor  the  trustee  shall  in  any  form  or 
guise  receive,  nor  shall  the  court  allozv  them,  any  other  or  further  com- 
pensation for  their  services  than  that  expressly  authorised  and  prescribed 
in  this  act.. 

The  Time  when  this  Act  shall  go  into  effect. — a  This  act  shall  go 
into  full  force  and  effect  upon  its  passage :  Provided^  however.  That  no 
petition  for  voluntary  bankruptcy  shall  be  filed  within  one  month  of  the 
passage  thereof,  and  no  petition  for  involuntary  bankruptcy  shall  be  filed 
within  four  months  of  the  passage  thereof. 

b  Proceedings  commenced  under  State  insolvency  laws  before  the 
passage  of  this  act  shall  not  be  affected  by  it. 


The  amendatory  act  of  1903  provides  as  follows : 

Sec.  19. — That  the  provisions  of  this  amendatory  act  shall  not  apply  to 
bankruptcy  cases  pending  zvhen  this  act  takes  effect,  but  such  cases  shall 
be  adjudicated  and  disposed  of  conformably  to  the  provisions  of  the  said 
act  of  July  first,  eighteen  hundred  and  ninety-eight. 


THE  BANKRUPTCY  ACTS  OF  1867,    1841 
AND   1800. 


THE  BANKRUPTCY  ACT  OF  1867. 
(with   amendments.) 
COURTS  OF  BANKRUPTCY. 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of  the  United  States 
of  America  in  Congress  assembled,  That  the  several  District  Courts  of  the 
United  States  be,  and  they  hereby  are,  constituted  courts  of  bankruptcy,  and 
they  shall  have  original  jurisdiction  in  their  re-pective  districts  in  all  matter^ 
and  proceedings  in  bankruptcy,  and  they  are  hereby  authorized  to  hear  and 
adjudicate  upon  the  same  according  to  the  provisions  of  this  Act. 

The  said  courts  shall  be  alw^ays  open  for  the  transaction  of  business  under 
this  Act,  and  the  powers  and  jurisdiction  hereby  granted  and  conferred  shall 
be  exercised  as  well  in  vacation  as  in  term  time;  and  a  judge  sitting  in  cham- 
bers shall  have  the  same  powers  and  jurisdiction,  including  the  power  of  keeping 
order  and  of  punishing  any  contempt  of  his  authority,  as  when  sitting  in  court. 

And   the   jurisdiction    hereby   conferred    shall    extend — 

To  all  cases  and  controversies  arising  between  the  bankrupt  and  any  creditor 
c  creditors  who  shall  claim  any  debt  or  demand  under  the  bankruptcy; 

To  the  collection  of  all  the  assets  of  the  bankrupt; 

To  the  ascertainment  and  liquidation  of  the  liens  and  other  specific  claims 
thereon; 

To  the  adjustment  of  the  various  priorities  and  conflicting  interests  of  all 
parties; 

And  to  the  marshaling  and  disposition  of  the  different  funds  and  assets, 
so  as  to  secure  the  rights  of  alh  parties  and  due  distribution  of, the  assets 
among  all  the  creditors;  «• 

And  to  all  acts,  matters,  and  things  to  be  done  under  and  in  virtue  of  the 
bankruptcy,  until  the  final  distribution  and  settlement  of  the  estate  of  the 
bankrupt,  and  the  close  of  the  proceedings  in  bankruptcy. 

{Provided,    That  the  court  having  charge  of  the  estate  of  any  bankrupt  may 
direct    that    any    of    the    legal    assets    or    debts    of   the    bankrupt,    as    contradis- 
tinguished   from    equitable    demands,'  shall,    when    such    debt    does    not    exceed, 
five  hundred  dollars,  be  collected  in  the  courts   of  the  state  where  such  bank- 
rupt resides,  having  jurisdiction  of  claims   of  such  nature   and  amount.)* 

The  said  courts  shall  have  full  authority  to  compel  obedience  to  all  orders 
and  decrees  passed  by  them  in  bankruptcy,  by  process  of  contempt  and  other 
remedial  process,  to  the  same  extent  that  the  Circuit  Courts  now  have  in  any 
suit  pending  therein  in  equity. 

Said  courts  may  sit  for  the  transaction  of  business  in  bankruptcy  at  any 
place  in  the  district,  of  which  place,  and  the  time  of  holding  court,  they  shall 
have  given  notice,  as  well  as  at  the  places  designated  by  law  for  holding  such 
courts. 

§  2.  And  be  it  further  enacted.  That  the  several  Circuit  Courts  of  the  United 
States  within  and  for  the  districts  where  the  proceedings  in  bankruptcy  shall 
be  pending  shall  have  a  general  superintendence  and  jurisdiction  of  all  cases 
and  questions  arising  under  this  Act;  and,  except  when  special  provision  is 
otherwise  made,  may,  upon  bill,  petition,  or  other  proper  process  of  any  party 
aggrieved,  hear  and  determine  the  case  as  a  court  of  equity. 


*So  amended  by  act  of  22  June,  1874,  ch.  390,  §  2,  18  Stat.  178. 


1792  re;mington  on  bankruptcy. 

The  powers  and  jurisdiction  hereby  granted  ma'y  be  exercised  either  by  said 
court,  or  by  any  justice  thereof,  in  term  time  or  vacation. 

*  Said  Circuit  Courts  shall  also  have  concurrent  jurisdiction  with  the  District 
Courts  of  the  same  district,  of  all  suits  at  law,  or  in  equity,  which  may  or  shall 
be  brought  by  the  assignee  in  bankruptcy  against  any  person  claiming  an 
adverse  interest,  or  by  such  person  against  such  assignee,  touching  any  prop- 
erty or  rights  of  property  of  said  bankrupt  transferable  to,  or  vested  in  such 
assignee; 

(R.  S.,  §  4979.— The  several  Circuit  Courts  shall  have,  within  each  district, 
concurrent  jurisdiction  with  the  district  court  of  any  district,  whether  the 
powers  and  jurisdiction  of  a  Circuit  Court  have  been  conferred  on  such  district 
court  or  not,  of  all  suits  at  law  or  in  equity  brought  by  an  assignee  in  bank- 
ruptcy against  any  person  claiming  an  adverse  interest  or  owing  any  debt 
to  such  bankrupt,  or  by  any  such  person  against  an  assignee,  touching  any 
property  or  rights  of  the  bankrupt,  transferable  to  or  veste€  in  siich  assignee.) 

But  no  suit  at  law  or  in  equity  shall  in  any  case  be  maintainable  by  or 
against  such  assignee,  or  by  or  against  any  person  claiming  an  adverse  inter- 
est, touching  the  property  and  riglits  of  property  aforesaid,  in  any  court  what- 
soever, unless  the  same  =hall  be  brought  within  two  years  from  the  time  the 
cause  of  action  accrued,  for  or  against  such  assignee:  Provided,  That  noth- 
ing herein  contained  shall  revive  a  right  of  action  barred  at  the  time  such 
assignee  is  appointed. 

OF  THE  ADMINISTRATION   OF  THE  LAW   IN   COURTS   OF   BANK- 
RUPTCY. 

§  3.  And  be  it  further  enacted,  That  it  shall  be  the  duty  of  the  judges  of  the 
District  Courts  of  the  United  States  within  and  for  the  several  districts  to  ap- 
point in  each  Congressional  District  in  said  districts,  upon  the  nomination 
and  recommendation  of  the  Chief  Justice  oi  the  Supreme  Court  of  the  United 
States,  one  or  mbre  registers  in  bankruptcy,  to  assist  the  judge  of  the  District 
Court  in  the  performance  of  his  duties  under  this  Act. 

No  person  shall  be  eligible  to  such  appointment  unless  he  be.  a  counsellor 
of  said  court,  or  of  some  one  of  the  courts  of  record  of  the  State  in  which 
he  resides. 

Before  entering  upon  the  duties  of  his"  office,  every  person  so  appointed  a 
register  in  bankruptcy  shall  give  a  bond  to  the  United  States,  with  condition 
that  he  will  faithfully  discharge  the  duties  of  his  office,  in  a  sum  not  less  than 
one  thousand  dollars,  to  be  fixed  by  said  court,  with  sureties  satisfactory  to 
said  court,  or  to   either  of  the   said  justices  thereof. 

And  he  shall,  in  open  court,  take  and  subscribe  the  oath  prescribed  in  the 
act  entitled  "An  Act  to  prescribe  an  oath  of  office,  and  for  other  purposes," 
approved  July  second,  eighteen  hundred  and  sixty-two,  and  also,  that  he  will 
not  during  his  continuance  in  office  be,  directly  or  indirectly,  interested  in,  or 
benefited  by  the  fees  or  emoluments  arising  from  any  suit  or  matter  pending 
in  bankruptcy  in  either  the  District  or  Circuit  Court  in  his  district. 

§  4.  And  be  it  further  enacted,  That  every  register  in  bankruptcy,  so  ap- 
pointed and  qualified,  shall   have  power,   and  it  shall  be  his   duty— 

To  make  adjudication  of  bankruptcy; 

To  receive  the  surrender  of  any  bankrupt; 

To  administer  oaths  in  all  proceedings  before  him; 

To  hold  and  preside  at  meetings  of  creditors; 


*As  amended  by  act  of  June  22,  1874,  this  paragraph  appears  in  R.  S.,  §  4979. 


THE)   BANKRUPTCY   ACT   OF    1867.  1793 

To  take  proof  of  debts; 

To  make  all  computations  of  dividends,  and  all  orders  of  distribution,  and  to 
furnish  the  assignee  with  a  certified  copy  of  such  orders,  and  of  the  schedules  of 
creditors  and  assets  filed  in  each  case; 

To  audit  and  pass  accounts  of  assignees; 

To  grant  protection; 

To  pass  the  last  examination  of  any  bankrupt  in  cases  whenever  the  assignee 
or  a  creditor  does  not  oppose; 

And  to  sit  in  chambers  and  dispatch  there  such  part  of  the  administrative 
business  of  the  court  and  such  uncontested  matters  as  shall  be  defined  in  gen- 
eral rules  and  orders,  or  as  the  district  judge  shall  in  any  particular  matter 
direct; 

And  he  shall  also  make  short  memoranda  of  his  proceedings  in  each  case 
in  which  he  sHall  act,  in  a  docket  to  be  kept  by  him  for  that  purpose,  and  he 
shall  forthwith,  as  the  proceedings  are  taken,  forward  to  the  clerk  of  the  Dis- 
trict Court  a  certified  copy  of  said  memoranda,  which  shall  be  entered  by  said 
clerk  in  the  proper  minute  book,  to  be  kept  in  his  office; 

And  any  register  of  the  court  may  act  for  any  other  register  thereof. 

Provided,  hozvevcr,  That  nothing  in  this  section  contained  shall  empower  a 
register  to  commit  for  contempt,  or  to  hear  a  disputed  adjudication,  or  any 
question  of  the  allowance  or  suspension  of  an  order  of  discharge; 

But  in  all  matters  where  an  issue  of  fact  or  of  law  is  raised  and  contested 
by  any  party  to  the  proceedings  before  him,  it  shall  be  his  duty  to  cause  the 
question  or  issue  to  be  stated  by  the  opposing  parties  in  writing,  and  he  shall 
adjourn  the  same  into  court  for  decision  by  the  judge. 

*No  register  shall  be  of  counsel  or  attorney,  either  in  or  out  of  court,  in 
any  suit  or  matter  pending  in  bankruptcy,  in  either  the  Circuit  or  District 
Court  of  his  district,  nor  in  an  appeal  therefrom,  nor  shall  he  be  executor,  ad- 
ministrator, guardian,  commissioner,  appraiser,  divider,  or  assignee  of  or  upon 
any  estate  within  the  jurisdiction  of  either  of  said  courts  of  bankruptcy,  nor 
be  interested  in  the  fees  or  emoluments   arising  from  either  of  said  trusts. 

(R.  S.,  Sec.  4996.*  No  register  or  clerk  of  court,  or  any  partner  or  clerk  of 
such  register  or  clerk  of  court,  or  any  person  having  any  interest  with  either 
in  any  fees  or  emoluments  in  bankruptcy,  or  with  whom  such  register  or  clerk 
of  court  shall  have  any  interest  in  respect  to  any  matter  in  bankruptcy,  shall 
be  of  counsel,  solicitor,  or  attorney,  either  in  or  out  of  court,  in  any  suit  or  mat- 
ter pending  in  bankruptcy  in  either  the  circuit  or  district  court  of  his  district, 
or  in  an  appeal  therefrom.  Nor  shall  they,  or  either  of  them,  be  executor,  ad- 
ministrator, guardian,  commissioner,  appraiser,  divider,  or  assignee  of  or  upon 
any  estate  within  the  jurisdiction  of  either  of  said  courts  of  bankruptcy;  nor 
be  interested,  directly  or  indirectly,  in  the  fees  or  emoluments  arising  from  either 
of  said  trusts.) 

The  fees  of  said  registers,  as  established  by  this  Act,  and  by  the  general 
rules  and  orders  required  to  be  framed  under  it,  shall  be  paid  to  them  by  the 
parties  for  whom  the  services  may  be  rendered  in  the  course  of  proceedings 
authorized  by  this  Act. 

§  5.  And  be  it  further  enacted.  That  the  judge  of  the  District  Court  may 
direct  a  register  to  attend  at  any  place  within  the  district,  for  the  purpose  of 
hearing  such  voluntary  applications  under  this  Act  as  may  not  be  opposed;  of 
attending  any  meeting  of  creditors,  or  receiving  any  proof  of  debts,  and,  gen- 
erally, for  the  prosecution  of  any  bankruptcy  or  other  proceedings  under  this 


^So  amended  by  act  of  22  June,  1874,  ch.  390,  sec.  18,  18  Stat.  184. 
2  Rem  B— 38 


1794  '  REMINGTON  ON  BANKRUPTCY. 

Act-  and  the  travelling  and  incidental  expenses  of  such  register,  and  of  any 
clerk  or  other  officer  attending  him,  incurred  in  so  acting,  shall  be  settled  by 
said  court  in  accordance  with  the  rules  prescribed  under  the  tenth  section  of 
this  Act,  and  paid  out  of  the  assets  of  the  estate  in  respect  of  which  such  reg- 
ister has  so  acted;  or,  if  there  be  no  such  assets,  or  if  the  assets  shall  be  in- 
sufhcient,  then  such  expenses  shall  form  a  part  of  the  costs  in  the  case  or  cases 
in  which  the  register  shall  have  acted  in  such  journey,  to  be  apportioned  by  the 
judge;  and  such  register,  so  acting,  shall  have  and  exercise  all  powers,  except 
the  power  of  commitment,  vested  in  the  District  Court  for  the  summoning  and 
examination  of  persons  or  witnesses,  and  for  requiring  the  production  of  books, 
papers,  and  documents: 

Provided  ahvavs,  That  all  depositions  of  persons  and  witnesses  taken  before 
said  register,  and  all  acts  done  by  him,  shall  be  reduced  to  writing  and  be 
signed  by  him,  and  shall  be  filed  in  the  clerk's  office  as  part  of  the  proceedings. 
Such  register  shall  be  subject  to  removal  by  the  judge  of  the  District  Court; 
And  all  vacancies  occurring  by  such  removal,  or  by  resignation,  change  of 
residence,  death,  or  disability,  shall  be  promptly  filled  by  other  fit  persons, 
unless'  said  court  shall  deem  the  continuance  of  the  particular  office  unneces- 
sary. 

§  6.  And  be  it  further  enacted.  That  any  party  shall,  during  the  proceedings 
before  a  register,  be  at  liberty  to  take  the  opinion  of  the  district  judge  upon 
any  point  or  matter  arising  in  the  course  of  such  proceedings,  or  upon  the  result 
of  such  proceedings,  which  shall  be  stated  by  the  register  in  the  shape  of  a 
short  certificate  to  the  judge,  who  shall  sign  the  same  if  he  approved  thereof; 
and  such  certificate,  so  signed,  shall  be  binding  on  all  the  parties  to  the  pro- 
ceeding; but  every  such  certificate  may  be  discharged  or  varied  by  the  judge 
at  chambers  or  in  open  court. 

In  any  bankruptcy,  or  in  any  other  proceedings  within  the  jurisdiction  of  the 
court  under  this  Act,  the  parties  concerned,  or  submitting  to  such  jurisdiction, 
may,  at  any  stage  of  the  proceedings,  by  consent,  state  any  question  or  ques- 
tions in  a  special  case  for  the  opinion  of  the  court;  and  the  judgment  of  the 
court  shall  be  final,  unless  it  be  agreed  and  stated  in  such  special  case  that 
either  party  may  appeal,  if,  in  such  case,  an  appeal  is  allowed  by  this  Act. 

The  parties  may  also,  if  they  think  fit,  agree,  that  upon  the  question  or  ques- 
tions raised  by  such  special  case  being  finally  decided,  a  sum  of  money,  fixed 
by  the  parties,  or  to  be  ascertained  by  the  court,  or  in  such  manner  as  the 
court  may  direct,  or  any  property,  or  the  amount  of  any  disputed  debt  or  claim, 
shall  be  paid,  delivered,  or  transferred  by  one  of  such  parties  to  the  other  of 
them,  either  with  or  without  costs. 

§  7.  Ajid  be  it  further  enacted,  That  parties  and  witnesses  summoned  before 
a  register  shall  be  bound  to  attend,  in  pursuance  of  such  summons,  at  the 
place  and  time  designated  therein,  and  shall  be  entitled  to  protection,  and  be 
liable  to  process  of  contempt  in  like  manner  as  parties  and  witnesses  are  now 
liable  thereto  in  case  of  default  in  attendance  under  any  writ  of  subpoena; 

And  all  persons  wilfully  and  corruptly  swearing  or  affirming  falsely  before  a 
register  shall  be  liable  to  all  the  penalties,  punishments,  and  consequences  of' 
perjury. 

If  any  person  examined  before  a  register  shall  refuse  or  decline  to  answer, 
or  to  swear  to  or  sign  his  examination  when  taken,  the  register  shall  refer  the 
matter  to  the  judge,  who  shall  have  power  to  order  the  person  so  acting  to 
pay  the  costs  thereby  occasioned,  if  such  person  be  compellable  by  law  to 
answer  such  question  or  to  sign  such  examination;  and  such  person  shall  also 
be  liable  to  be  punished  for  contempt. 


THE    BANKRUPTCY   ACT    OF    1867.  1795 

§  8.  And  be  it  further  enacted,  That  appeals  may  be  taken  from  the  District 
to  the  Circuit  Courts  in  all  cases  in  equitj^  and  writs  of  error  may  be  allowed 
to  said  Circuit  Courts  from  said  District  Courts  in  cases  at  law  under  the 
jurisdiction  created  by  this  act  when  the  debt  or  damages  claimed  amount  to 
more  than  five  hundred  dollars;  and  any  supposed  creditor,  whose  claim  is 
^yholly  or  in  part  rejected,  or  an  assignee  who  is  dissatisfied  with  the  allowance 
of  a  claim,  may  appeal  from  the  decision  of  the  District  Court  to  the  Circuit 
Court  for  the  same  district;  but  no  appeal  shall  be  allowed  in  any  case  from  the 
District  to  the  Circuit  Court  unless  it  is  claimed,  and  notice  given  thereof  to 
the  clerk  of  the  District  Court,  to  be  entered  with  the  record  of  the  proceedings, 
and  also  to  the  assignee  or  creditor,  as  the  case  may  be,  or  to  the  defeated 
party  in  equity,  within  ten  daj's  after  the  entry  of  the  decree  or  decision  ap- 
pealed from. 

The  appeal  shall  be  entered  at  the  term  of  the  Circuit  Court  which  shall  be 
first  held  within  and  for  the  district  next  after  the  expiration  of  ten  days  from 
the  time  of  claiming  the  same. 

But  if  the  appellant  in  writing  waives  his  appeal  before  any  decision  thereon, 
proceedings  may  be  had  in  the  District  Court  as  if  no  appeal  had  been  taken. 

And  no  appeal  shall  be  allowed  unless  the  appellant,  at  the  time  of  claiming 
the  same,  shall  give  bond  in  manner  now  required  by  law  in  cases  of  such 
appeals. 

No  writ  of  error  shall  be  allowed  unless  the  party  claiming  it  shall  comply 
v/ith  the  statutes  regulating  the  granting  of  such  writs. 

§  9.  And  be  it  further  cnaeted.  That  in  cases  arising  under  this  Act,  no  ap- 
peal or  writ  of  error  shall  be  allowed  in  any  case  from  the  Circuit  Courts  to 
the  Supreme  Court  of  the  United  States,  unless  the  matter  in  dispute  in  such 
case  shall  exceed*   (two  thousand  dollars). 

§  3  0.  And  be  it  further  enacted.  That  the  Justices  of  the  Supreme  Court  of 
the  United  States,  subject  to  the  provisions  of  this  Act,  shall  frame  general 
orders  for  the  following  purposes: 

For  regulating  the  practice  and  procedure  of  the  District  Courts  in  bank- 
ruptcy, and  the  several  forms  of  petitions,  orders,  and  other  proceedings  to  be 
used  in  said  courts  in  all  matters  under  this  Act; 

For   regulating   the   duties   of  the   various   officers   of   said   courts; 

(fFor  regulating  the  fees  payable,  and  the  charges  and  costs  to  be  allowed, 
except  such  as  are  established  by  this  Act  or  by  law,  with  respect  to  all  pro- 
ceedings in  bankruptcy  before  said  courts,  not  exceeding  the  rate  of  fees  now 
allowed  by  law  for  similar  services  in  other  proceedings). 

For  regulating  the  fees  payable  and  the  charges  and  costs  to  be  allowed, 
with  respect  to  all  proceedings  in  bankruptcy  before  such  courts,  not  exceed- 
ing the  rate  of  fees  now  allowed  by  law  for  similar  services  in  other  proceedings. 

For  regulating  the  practice  and  procedure  upon  appeals; 

For  regulating  the  filing,  custody,  and  inspection  of  records; 

And  generally  for  carrying  the  provisions  of  this  Act  into  effect. 

(JAnd  said  justices  shall  have  power  under  said  sections,  by  general  regula- 
tions, to  simplify,  and  so  far  as  in  their  judgment  will  conduce  to  the  benefit 
cf  creditors,  to  consolidate  the  duties  of  the  register,  assignee,  marshal,  and 
clerk,  and  to  reduce  fees,  costs,  and  charges,  to  the  end  that  prolixity,  delay, 
and  unnecessary  expense  may  be  avoided.) 


*Amended  by  act  of  Feb.   6th,  187.5,  ch.  77,  sec.  3,  to  $5,000.00. 

fAmended  by  act   of  22  June,   1874,   ch.   390,   sec.   18,   18    Stat.   184,  to   read   as 
in   the  following  paragraph. 

$So  added  by  act  of  22  June,  1874,  ch.  390,  sec.  18,  18' Stat.  184. 


1796  REMINGTON    ON    BANKRUPTCY. 

After  such  general  orders  shall  have  been  so  framed,  they,  or  any  of  them, 
may  be  rescinded  or  varied,  and  other  general  orders  may  be  framed  in  man- 
ner aforesaid; 

And  all  such  general  orders  so  framed  shall,  from  time  to  time,  by  the  Jus- 
tices of  the  Supreme  Court,  be  reported  to  Congress,  with  such  suggestions 
as  said  Justices  may  think  proper. 

VOLUNTARY  BANKRUPTCY— COMMENCEMENT  OE  PROCEEDINGS. 

§  11.  And  be  it  further  enacted,  That  if  any  person  residing  within  the  juris- 
diction of  the  United  States,  owing  debts  provable  under  this  Act  exceeding 
the  amount  of  three  hundred  dollars,  shall  apply  by  petition,  addressed  to  the 
judge  of  the  judicial  district  in  which  such  debtor  has  resided  or  carried  on 
business  for  the  six  months  next  immediately  preceding  the  time  of  filing  such 
petition,  or  for  the  longest  period  during  such  six  months,  setting  forth  his 
place  of  residence,  his  inability  to  pay  all  his  debts  in  full,  his  willingness  to 
surrender  all  his  estate  and  effects  for  the  benefit  of  his  creditors,  and  his  de- 
sire to  obtain  the  benefit  of  this  Act; 

And  shall  annex  to  his  petition  a  schedule  (words  "and  inventory  and  val- 
ulation"  added  by  act  of  June  23,  1874),  verified  by  oath  before  the  court,  or  be- 
fore a  register  in  bankruptcy,  or  before  one  of  the  commissioners  of  the  Circuit 
Court  of  the  United  States,  containing  a  full  and  true  statement  of  all  his  debts, 
and,  as  far  as  possible,  to  whom  due,  with  the  place  of  residence  of  each  cred- 
itor, if  known  to  the  debtor,  and,  if  not  known,  the  fact  to  be  so  stated,  and 
the  sum  due  to  each  creditor;  also  the  nature  of  each  debt  or  demand,  whether 
founded  on  written  security,  obligation,  contract,  or  otherwise,  and  also  the  true 
cause  and  consideration  of  such  indebtedness  in  each  case,  and  the  place  where 
such  indebtedness  accrued,  and  a  statement  of  any  existing  mortgage,  pledge, 
lien,  judgment,  or  collateral  or  other  security  given  for  payment  of  the  same; 

And  shall  also  annex  to  his  petition  an  accurate  inventory,*  verified  in  like 
manner,  of  A\l  his  estate,  both  real  and  personal,  assignable  under  this  Act, 
describing  the  same,  and  stating  where  it  is  situated,  and  whether  there  are 
any,  and,  if  so,  what  encumbrances  thereon; 

The  filing  of  such  petition  shall  be  an  act  of  bankruptcy,  and  such  petitioner 
shall  be  adjudged  a  bankrupt; 

Provided,  That  all  citizens  of  the  United  States  petitioning  to  be  declared 
bankrupt  shall,  in  filing  such  petition,  and  before  any  proceedings  thereon,  take 
and  subscribe  an  oath  of  allegiance  and  fidelity  to  the  United  States,  whicn 
oath   shall  be   filed  and  recorded  with   the  proceedings   in  bankruptcy. 

And  the  judge  of  the  District  Courts,  or,  if  there  be  no  opposing  partj%  any 
register  of  said  court,  to  be  designated  by  the  judge,  shall  forthwith,  if  he  be 
satisfied  that  the  debts  due  from  the  petitioner  exceed  three  hundred  dollars, 
issue  a  warrant,  to  be  signed  by  such  judge  or  register,  directed  to  the  marshal 
of  said  district,  authorizing  him  forthwith,  as  messenger,  to  publish  notices  in 
such  newspapers  as  the  warrant  specifies;  to  serve  written  or  printed  notice, 
by  mail  or  personally,  on  all  creditors  upon  the  schedule  filed  with  the  debtor's 
petition,  or  whose  names  may  be  given  to  him  in  addition  by  the  debtor,  and  to 
give  such  personal  or  other  notice  to  any  persons  concerned  as  the  warrant 
specifies,  which  notice  shall  state: 

First.  That  a  warrant  in  bankruptcy  has  been  issued  against  the  estate  of 
the  debtor. 


*"And  valuation,"  so  amended  Act  of  June  22,  1874. 


the:  bankruptcy  act  of  1867.  1797 

Second.  That  the  paj^ment  of  any  debts  and  the  delivery  of  any  property 
belonging  to  such  debtor  to  him  or  for  his  use,  and  the  transfer  of  any  property 
by  him,  are  forbidden  by  law. 

Third.  That  a  meeting  of  the  creditors  of  the  debtor,  giving  the  names,  resi- 
dences, and  amounts,  so  far  as  known,  to  prove  their  debts  and  choose  one  or 
more  assignees  of  his  estate,  will  be  held  at  a  court  of  bankruptcy,  to  be  holden 
at  a  time  and  place  designated  in  the  warrant,  not  less  than  ten  nor  more  than 
ninety  days  after  the  issuing  of  the  same. 

(*But  whenever  the  creditors  of  the  bankrupt  are  so  numerous  as  to  make 
any  notice  now  required  by  law  to  them,  by  mail  or  otherwise,  a  great  and  dis- 
proportionate expense  to  the  estate,  the  court  may,  in  lieu  thereof,  in  its  discre- 
tion, order  such  notice  to  be  given  by  oublication  in  a  newspaper,  or  news- 
papers, to  all  such  creditors,  whose  claims,  as  reported,  do  not  exceed  the 
sums,  respectively,  of  fifty  dollars.) 

OF  ASSIGNMENTS   AND   ASSIGNEES. 

§  12.  And  he  it  further  enacted,  That  at  the  meeting  held  in  pursuance  of  the 
notice,  one  of  the  registers  of  the  court  shall  preside,  and  the  messenger  shall 
make  return  of  the  warrant  and  of  his  doings  thereon;  and  if  it  appears  that 
the  notice  to  the  creditors  has  not  been  given  as  required  in  the  warrant,  the 
meeting  shall  forthwith  be  adjourned,  and  a  new  notice  given  as  required. 

If  the  debtor  dies  afteV  the  issuing  of  the  warrant,  the  proceedings  may  be 
continued  and  concluded  in  like  manner  as  if  he  had  lived. 

§  13.  And  be  it  further  enacted.  That  the  creditors  shall,  at  the  first  meeting 
held  after  due  notice  from  the  messenger,  in  presence  of  a  register  designated 
by  the  court,  choose  one  or  more  assignees  of  the  estate  of  the  debtor;  the 
choice  to  be  made  by  the  greater  part  in  value  and  in  number  of  the  creditors 
who  have  proved  their  debts. 

If  no  choice  is  made  by  the  creditors  at  said  meeting,  the  judge,  or,  if  there 
be  no  opposing  interest,  the  register,  shall  appoint  one  or  more  assignees. 

If  an  assignee,  so  chosen  or  appointed,  fails  within  five  days  to  express  in 
visiting  his  acceptance  of  the  trust,  the  judge  or  register  may  fill  the  vacancy. 

All  elections  or  appointments  of  assignees  shall  be  subject  to  the  approval 
cf  the  judge;  and  when  in  his  judgment  it  is  for  any  cause  needful  or  ex- 
pedient, he  may  appoint  additional  assignees,  or  order  a  new  election. 

The  judge  at  any  time  may,  and  upon  the  request  in  writing  of  any  creditor 
who  has  proved  his  claim  shall  require  the  assignee  to  give  good  and  sufficient 
bond  to  the  United  States,  with  a  condition  for  the  faithful  performance  and 
discharge  of  his  duties; 

The  bond  shall  be  approved  by  the  judge  or  register  by  his  endorsement 
thereon,  shall  be  filed  with  the  record  of  the  case,  and  inure  to  the  benefit  of 
all  creditors  proving  their  claims,  and  may  be  prosecuted  in  the  name  and  for 
the  benefit  of  any  injured  party. 

If  the  assignee  fails  to  give  the  bond  within  such  time  as  the  judge  orders, 
not  exceeding  ten  days  after  notice  to  him  of  such  order,  the  judge  shall  re- 
move him  and  appoint  another  in  his  place. 

§  14!  And  be  it  further  enacted,  That  as  soon  as  said  assignee  is  appointed 
and  qualified,  the  judge,  or,  where  there  is  no  opposing  interest,  the  register, 
shall,  by  an  instrument  under  his  hand,  assign  and  convey  to  the  assignee  all 
the  estate,  real  and  personal,  of  the  bankrupt,  with  all  his  deeds,  books,  and 
papers    relating   thereto;    and    such    assignment    shall    relate    back   to   the    com- 


*So  amended  by  act  of  22  June,  1874,  ch.  390,  sec.  5,  18  Stat.  179. 


1798  REMINGTON    ON    BANKRUPTCY. 

mencement  of  said  proceedings  in  bankruptcy,  and  thereupon,  by  operation  of 
law,  the  title  to  all  such  property  and  estate,  both  real  and  personal,  shall  vest 
in  said  assignee,  although  the  same  is  then  attached  on  mesne  process  as  the 
property  of  the  debtor,  and  shall  dissolve  any  such  attachment  made  within 
four   months   next   preceding   the   corhmencement   of   said   proceedings: 

Provided,  however,  That  there  shall  be  excepted  from  the  operation  of  the 
provisions  of  this  section — 

The  necessary  household  and  kitchen  furniture,  and  such  other  articles  and 
necessaries  of  such  bankrupt  as  the  said  assignee  shall  designate  and  set 
apart,  having  reference  in  the  amount  to  the  family,  condition,  and  circum- 
stances of  the  bankrupt,  but  altogether  not  to  exceed  in  value,  in  any  case,  the 
sum  of  five  hundred  dollars;  ^ 

And  also  the  wearing  apparel  of  such  bankrupt,  and  that  of  his  wife  and  chil- 
dren; 

And  the  uniform,  arms,  and  equipments  of  any  person  who  is  or  has  been  a 
soldier  in  the  militia  or  in  the  service  of  the  United  States; 

And  such  other  property  as  now  is,  or  hereafter  shall  be  exempted  from  attach- 
ment, or  seizure,  or  levy  on  execution  by  the  laws  of  the  United  States; 

And  such  other  property  not  included  in  the  foregoing  exceptions  as  is  ex- 
empted from  levy  and  sale  upon  execution  or  other  process,  or  order  of  any 
court,  by  the  laws  of  the  State  in  which  the  bankrupt  has  his  domicite  at  the 
time  of  the  commencement  of  the  proceedings  in  bankruptcy,  to  an  amount 
not  exceeding  that  allowed  by  such  State  exemption  laws  in  force  in  the  year 
eighteen  hundred  and  sixty-four: 

Provided,  That  the  foregoing  exception  shall  operate  as  a  limitation  upon 
the  conveyance  of  the  property  of  the  bankrupt  to  his  assignees; 

And  in  no  case  shall  the  property  hereby  excepted  pass  to  the  assignees,  or 
the  title  of  the  bankrupt  thereto  be  impaired  or  affected  by  any  of  the  pro* 
visions  of  this  Act; 

And  the  determination  of  the  assignee  in  the  matter  shall,  on  exception 
taken,  be  subject  to  the  final  decision  of  the  said  court: 

And  provided  further,  That  no  mortgage  of  any  vessel  or  of  any  other  goods 
or  chattels,  made  as  security  for  any  debt  or  debts,  in  good  faith  and  for 
present  considerations,  and  otherwise  valid,  and  duly  recorded,  pursuant  to  any 
statute  of  the  United  States  or  of  any  State,  shall  be  invalidated  or  affected 
hereby. 

And  all  the  property  conveyed  by  the  bankrupt  in  fraud  of  his  creditors; 

All  rights  in  equity,  choses  in  action,  patents  and  patent  rights  and  copy- 
rights; 

All  debts  due  him,  or  any  person  for  his  use,  and  all  Hens  and  securities 
therefor; 

And  all  his  rights  of  action  for  property  or  estate,  real  or  personal,  and  for 
any  cause  of  action  which  the  bankrupt  had  against  any  person  arising-  from 
contract  or  from  the  unlawful  taking  or  detention  or  of  injury  to  the  property 
of  the  bankrupt;  and  all  his  rights  of  redeeming  such  property  or  estate,  with 
the  like  right,  title,  power,  and  authority  to  sell,  manage,  dispose  of,  sue  for, 
and  recover  or  defend  the  same,  as  the  bankrupt  might  or  could  have  had  if 
no  assignment  had  been  made,  shall,  in  virtue  of  the  adjudication  of  bankruptcy 
and  the  appointment  of  his  assignee,  be  at  once  vested  in  such  assignee; 

And  he  may  sue  for  and  recover  the  said  estate,  debts,  and  effects,  and  may 
prosecute  and  defend  all  suits  at  law  or  in  equity,  pending  at  the  time  of  the 
adjudication  of  bankruptcy,  in  which  such  bankrupt  is  a  party  in  his  own  name. 


the:  bankruptcy  act  of  1867.  1799 

in   the    same   manner   and   with   the   like    effect   as   they   might   liave   been   pre- 
sented or  defended  by  such  bankrupt. 

And  a  copy,  duly  certified  by  the  clerk  of  the  court,  under  the  seal  thereof, 
of  the  assignment  made  by  the  judge  or  register,  as  the  case  may  be,  to  him 
as  assignee,  shall  be  conclusive  evidence  of  his  title  as  such  assignee  to  take, 
hold,  sue  for,  and  recover  the  property  of  the  bankrupt,  as  hereinbefore 
mentioned;  but  no  property  held  by  the  bankrupt  iii  trust  shall  pass  by  such 
assignment. 

No  person  shall  be  entitled  to  maintain  an  action  against  an  assignee  in 
bankruptcy  for  anything  done  by  him  as  such  assignee,  without  previously 
giving  him'  twenty  days'  notice  of  such  action,  specifying  the  cause  thereof, 
to  the  end  that  such  assignee  may  have  an  opportunity  of  tending  amends, 
should  he  see  fit  to  do  so. 

No  person  shall  be  entitled,  as  against  the  assignee,  to  withhold  from  him 
possession  of  any  books  of  account  of  the  bankrupt,  or  claim  any  lien  thereon; 

And  no  suit  in  which  the  assignee  is  a  party  shall  be  abated  by  his  death  or 
removal  from  office,  but  the  same  may  be  prosecuted  and  defended  by  his 
successors,   or  by  the  surviving  or  remaining  assignee,   as   the   case   may  be. 

The  assignee  shall  have  authority,  under  the  order  and  direction  of  the  court, 
to  redeem  or  discharge  any  mortgage  or  conditional  contract,  or  pledge  or 
deposit,  or  lien  upon  any  property,  real  or  personal,  whenever  payable,  and  to 
tender  due  performance  of  the  condition  thereof,  or  to  sell  the  same  subject  to 
such  mortgage,  lien,  or  other  encumbrances. 

The  debtor  shall  also,  at  the  request  of  the  assignee,  and  at  the  expense  of 
the  estate,  make  and  execute  any  instruments,  deeds,  and  writings  which  may 
be  proper,  to  enable  the  assignee  to  possess  himself  fully  of  all  the  assets  of  the 
bankrupt. 

The  assignee  shall  immediately  give  notice  of  his  appointment  by  publica- 
tion, at  least  once  a  week  for  three  successive  weeks,  in  such  newspaper  as 
shall,  for  that  purpose,  be  designated  by  the  court,  due  regard  being  had  to 
their  general  circulation  in  the  district  or  in  that  portion  of  the  district  in  which 
the  bankrupt  and  his  creditors  shall  reside. 

And  shall,  within  six  months,  cause  the  assignment  to  him  to  be  recorded 
in  every  registry  of  deeds  or  other  office  within  the  United  States  where  a 
conveyance  of  any  lands  owned  by  the  bankrupt  ought  by  law  to  be  recorded; 

And  the  record  of  such  assignment,  or  a  duly  certified  copy  thereof,  shall  be 
evidence  thereof  in  all  courts. 

§  15.  And  be  it  further  enacted,  That  the  assignee  shall  demand  and  receive 
from  any  and  all  persons  holding  the  same,  all  the  estate  assigned,  or  intended 
to  be  assigned,  under  the  provisions  of  this  Act;    . 

And  he  shall  sell  all  such  unencumbered  estate,  real  and  personal,  which 
comes  to  his  hands,  on  such  terms  as  he  thinks  most  for  the  interest  of  the 
creditors; 

(R.  S.,  sec.  5062a  (22  June,  1874,  ch.  390,  sec.  1,  18  Stat.  178.)— That  the 
court  may,  in  its  discretion,  on  sufficient  cause  shown,  and  upon  notice  and 
hearing,  direct  the  receiver  or  assignee  to  take  possession  of  the  property,  and 
carry  on  the  business  of  the  debtor,  or  any  part  thereof,  under  the  direction 
cf  the  court,  when  in  its  judgment,  the  interest  of  the  estate  as  well  as  of  the 
creditors  will  be  promoted  thereby,  but  not  for  a  period  exceeding  nine  months 
from  the  time  the  debtor  shall  have  been  declared  a  bankrupt.  Provided,  That 
such  order  shall  not  be  made  until  the  court  shall  be  satisfied  that  it  is 
approved  by  a  majority  in  value  of  the  creditors.) 

But  upon  petition  of  any  person  interested,  and  for  cause  shown,  the  court 


1800  REMINGTON    ON    BANKRUPTCY. 

may  make  such  order  concerning  the  time,  place,  and  manner  of  sale,  as  will, 
in  its  opinion,  prove  to  the  interest   of  the  creditors; 

And  the  assignee  shall  keep  a  regular  account  of  all  money  received  by  him 
as  assignee,  to  which  every  creditor  shall,  at  reasonable  times,  have  free 
resort. 

(R.  S.,  sec,  5062b  (22  June,  1874,  ch.  390,  sec.  4,  18  Stat.  178.)— That,  unless 
otherwise  ordered  by  the  court,  the  assignee  shall  sell  the  property  of  the 
bankrupt,  whether  real  or  personal,  at  public  auction,  in  such  parts  or  parcels, 
and  at  such  times  and  places,  as  shall  be  best  calculated  to  produce  the  greatest 
amount  with  the  least  expense.  All  notices  of  public  sales  under  this  act  by 
any  assignee  or  officer  of  the  court  shall  be  published  once  a.  week  for  three 
consecutive  weeks  in  the  newspaper  or  newspapers  to  be  designated  by  the 
judge,  which,  in  his  opinion,  shall  be  best  calculated  to  give  general  notice  of 
the  sale.  And  the  court  on  application  of  any  party  in  interest,  shall  have  com- 
plete supervisory  power  over  such  sales,  including  the  power  to  set  aside  the 
same  and  to  order  a  resale,  so  that  the  property  sold  shall  realize  the  largest 
sum.  And  the  court  may,  in  its  discretion,  order  any  real  estate  of  the  bank- 
rupt, or  any  part  thereof,  to  be  sold  for  one-fourth  cash  at  the  time  of  sale,  and 
the  residue  within  eighteen  months,  in  such  installments  as  the  court  may 
direct,  bearing  interest  at  the  rate  of  seven  per  centum  per  annum,  and  secured 
by  proper  mortgage  or  lien  upon  the  property  so  sold.  And  it  shall  be  the  duty 
of  every  assignee  to  keep  a  regular  account  of  all  moneys  received  or  expended 
by  him  as  such  assignee,  to  which  account  every  creditor  shall,  at  reasonable 
times,  have  free  access.  If  any  assignee  shall  fail  or  neglect  to  well  and 
faithfully  discharge  his  duties  in  the  sale  or  disposition  of  property  as  above 
contemplated,  it  shall  be  the  duty  of  the  court  to  remove  such  assignee,  and  he 
shall  forfeit  all  fees  and  emoluments  to  which  he  might  be  entitled  in  connec- 
tion with  such  sale.  And  if  any  assignee  shall  in  any  manner,  in  violation  of  his 
duty  aforesaid,  unfairly  or  wrongfully  sell,  or  dispose  of,  or  in  any  manner, 
fraudulently  or  corruptly  combine,  conspire,  or  agree  with  any  person  or 
persons,  with  intent  to  unfairly  or  wrongfully  sell,  or  dispose  of  the  property 
committed  to  his  charge,  he  shall,  upon  proof  thereof,  be  removed,  and  forfeit 
all  fees  or  other  compensation  for  any  and  all  services,  in  connection  with 
such  bankrupt's  estate,  and  upon  conviction  thereof,  before  any  court  of  com- 
petent jurisdiction,  shall  be  liable  to  a  fine  of  not  more  than  ten  thousand 
dollars,  or  imprisonment  in  the  penitentiary  for  a  term  of  not  exceeding  two 
years,  or  both  fine  and  imprisonment,  at  the  discretion  of  the  court.  And  any 
person  so  combining,  conspiring,  or  agreeing  with  such  assignee  for  the  pur- 
pose aforesaid,  shall,  upon  conviction,  be  liable  to  a  like  punishment.  That 
the  assignee  shall  report  under  oath,  to  the  court,  at  least  as  often  as  once  in 
three  months,  the  condition  of  the  estate  in  his  charge  and  the  state  of  his  ac- 
counts in  detail,  and  at  all  other  times  when  the  court,  on  motion  or  otherwise, 
shall  so  order.  And  on  any  settlement  of  the  account  of  any  assignee,  he  shall 
be  required  to  account  for  all  interest,  benefit,  or  advantage  received,  or  in  any 
manner  agreed  to  be  received,  directly  or  indirectly,  from  the  use,  disposal 
or  proceeds  of  the  bankrupt's  estate.  And  he  shall  be  required,  upon  such 
settlement,  to  make  and  file  in  court  an  affidavit  declaring,  according  to  the 
truth,  whether  he  has  or  has  not.  as  the  case  may  be,  received,  or  is  or  is  not, 
as  the  case  may  be,  to  receive,  directly  or  indirectly,  any  interest,  benefit,  or  ad- 
vantage from  the  use  or  deposit  of  such  funds;  and  such  assignee  may  be  ex- 
ammed  orally  upon  the  same  subject,  and  if  he  shall  willfully  swear  falsely, 
either  in  such  affidavit  or  examination,  or  to  his  report  provided  for  in  this  sec- 
tion, he  shall  be  deemed  to  be  guilty  of  perjury,  and  on  conviction  thereof    be 


THE  BANKRUPTCY  ACT  OF   1867.  1801 

punished  by  imprisonment  in  the  penitentiary  not  less  than  one  and  not  more 
than  five  years.) 

§  16.  Arid  be  it  further  enacted,  That  the  assignee  shall  have  the  like  remedy 
to  recover  all  said  estate,  debts,  and  effects  in  his  own  name,  as  the  debtor 
might  have  had  if  the  decree  in  bankruptcy  had  not  been  rendered,  and  no 
assignment  had  been  made. 

If,  at  the  time  of  the  commencement  of  the  proceedings  in  bankruptcy  an 
action  is  pending  in  the  name  of  the  debtor  for  the  recovery  of  a  debt  or  other 
thing  which  might  or  ought  to  pass  to  the  assignee  by  the  assignment,  the 
assignee  shall,  if  he  requires  it,  be  admitted  to  prosecute  the  action  in  his  own 
name,  in  like  manner  and  with  like  effect  as  if  it  had  been  originally  com- 
menced   by    him. 

No  suit  pending  in  the  name  of  the  assignee  shall  be  abated  by  his  death 
or  removal;  but  upon  the  motion  of  the  surviving,  or  remaining,  or  new  as- 
signee, as  the  case  may  be,  he  shall  be  admitted  to  prosecute  the  suit,  in  like 
manner  and  with  like  effect  as  if  it  had  been  originally  commenced  by  him. 

In  suits  prosecuted  by  the  assignee  a  certified  copy  of  the  assignment  made 
to  him  by  the  judge  or  register  shall  be  conclusive  evidence  of  his  authority 
to  sue. 

§  17.  And  be  it  further  enacted,  That  the  assignee  shall,  as  soon  as  may  be 
after  receiving  any  money  belonging  to  the  estate,  deposit  the  same  in  some 
bank  in  his  name  as  assignee,  or  otherwise  keep  it  distinct  and  apart  from  all 
other  money  in  his  possession;  and  shall,  as  far  as  practicable,  keep  all  goods 
and  effects  belonging  to  the  estate  separate  and  apart  from  all  other  goods 
in  his  possession,  or  designated  by  appropriate  marks,  so  that  they  may  be 
easily  and  clearly  distinguished,  and  may  not  be  exposed  or  liable  to  be  taken 
as  his  property  or  for  the  payment  of  his  debts. 

When  it  appears  that  the  distribution  of  the  estate  may  be  delayed  by  litiga- 
tion or  other  cause,  the  court  may  direct  the  temporary  investment  of  the 
money  belonging  to  such  estate  in  securities  to  be  approved  by  the  judge  or 
a  register  of  said  court,  or  may  authorize  the  same  to  be  deposited  in  any  con- 
venient bank,  upon  such  interest,  not  exceeding  the  legal  rate,  as  the  bank  may 
contract  with  the  assignee  to  pay  thereon. 

He  shall  give  written  notice  to  all  known  creditors,  by  mail  or  otherwise,  of 
all  dividends,  and  such  notice  of  meetings,  after  the  first,  as  may  be  ordered  by 
the  court. 

He  shall  be  allowed,  and  may  retain,  out  of  money  in  his  hands,  all  the  neces- 
sary disbursements  made  by  him  in  the  discharge  of  his  duty,  and  a  reasonable 
compensation  for  his  services,  in  the  discretion  of  the  court. 

He  may,  under  the  direction  of  the  court,  submit  any  controversy  arising  in 
the  settlement  of  demands  against  the  estate,  or  of  debts  due  to  it,  to  the 
determination  of  arbitrators,  to  be  chosen  by  him  and  the  other  party  to  the 
controversy,  and  may,  under  such  direction,  compound  and  settle  any  such  con- 
troversy by  agreement  with  the  other  party,  as  he  thinks  proper  and  most  for 
the  interest  of  the  creditors. 

§  18.  And  be  it  further  enacted,  That  the  court,  after  due  notice  and  hearing, 
may  remove  an  assignee  for  any  cause  which,  in  the  judgment  of  the  court, 
renders  such  removal  necessary  or  expedient. 

At  a  meeting  called  by  order  of  the  court  in  its  discretion  for  the  purpose,  or 

which   shall   be   called  upon  the   application   of   a    majority   of   the    creditors   in 

I    number  and  value,  the  creditors  may,  with   consent   of  the   court,   remove  any 

assignee  by  such  a  vote  as  is  hereinbefore  provided  for  the  choice  of  assignee. 


1802  REMINGTON    ON    BANKRUrTCY. 

An  assignee  may,  with  the  consent  of  the  judge,  resign  his  trust,  and  be 
discharged  therefrom. 

Vacancies   caused  by   death,   or   otherwise,   in  -the   office   of   assignee   may   be 

filled  by  appointment  of  the  court,  or,  at  its  discretion,  by  an  election  by  the 

creditors,  in  the  manner  hereinbefore  provided,  at   a  regular  meeting,   or  at  a 

meeting   called    for   the    purpose,    with    such    notice    thereof,    in    writing,    to    all 

■  known  creditors,  and  by  such  person  as  the  court  shall  direct. 

The  resignation  or  removal  of  an  assignee  shall  in  no  way  release  him  from 
performing  all  things  requisite  on  his  part  for  the  proper  closing  up  of  his 
trust  and  the  transmission  thereof  to  his  successors,  nor  shall  it  afifect  the 
liability  of  the  principal   or   surety  on   the   bond   given  by   the   assignee. 

When,  by  death,  or  otherwise,  the  number  of  assignees  is  reduced,  the  estate 
of  the  debtor  not  lawfully  disposed  of  shall  vest  in  the  remaining  assignee 
or  assignees,  and  the  persons  selected  to  fill  vacancies,  if  any,  with  the  same 
powers  and  duties  relative  thereto  as  if  they  were  originally  chosen. 

Any  former  assignee,  his  executors  or  administrators,  upon  request,  and  at 
the  expense  of  the  estate,  shall  make  and  execute  to  the  new  assignee  all  deeds; 
conveyances,  and  assurances,  and  do  all  other  lawful  acts  requisite  to  enable 
him  to  recover  and  receive  all  the  estate. 

And  the  court  may  make  all  orders  which  it  may  deem  expedient  to  secure 
the  proper  fulfillment  of  the  duties  of  any  former  assignee,  and  the  rights 
and  interests  of  all  persons  interested  in  the  estate. 

No  person  who  has  received  any  preference  contrary  to  the  provisions  of  this 
Act  shall  vote  for  or  be  eligible  as  assignee. 

But  no  title  to  property,  real  or  personal,  sold,  transferred,  or  conveyed 
by  an  assignee,  shall  be  affected  or  impaired  by  reason  of  hi§  ineligibility. 

An  assignee  refusing  or  unreasonably  neglecting  to  execute  an  instrument 
when  lawfull}^  required  by  the  court,  or  disobeying  a  lawful  order  or  decree 
of  the  court  in  the  premises,  may  be  punished  as  for   a   contempt  of  court. 

OF  DEBTS  AND  PROOF  OF  CLAIMS. 

§  19.  And  be  it  further  enacted.  That  all  debts  due  and  paj'able  from  the 
bankrupt  at  the  time  of  the  adjudication  of  bankruptcy,  and  all  debts  then  ex- 
isting but  not  payable  until  a  future  day,  a  rebate  of  interest  being  made  when 
no  interest  is  payable  by  the  terms  of  contract,  may  be  proved  against  the 
estate  of  the  bankrupt. 

All  demands  against  the  bankrupt  for  or  on  account  of  any  goods  or  chattels 
wrongfully  taken,  converted,  or  withheld  by  him,  may  be  proved  and  allowed 
as  debts  to  the  amount  of  the  value  of  the  property  so  taken  or  withheld,  with 
interest. 

If  the  bankrupt  shall  be  bound  as  drawer,  indorser,  surety,  bail,  or  guar- 
antor upon  any  bill,  bond,  note,  or  any  other  specialty  or  contract,  or  for  any 
debt  of  another  person,  and  his  liability  shall  not  have  become  absolute  until 
after  the  adjudication  of  bankruptcy,  the  creditor  may  prove  the  same  after  such 
liability  shall  have  become  fixed,  and  before  the  final  dividend  shall  have  been 
declared. 

In  all  cases  of  contingent  debts  and  contingent  liabilities  contracted  by  the 
bankrupt,  and  not  herein  otherwise  provided  for,  the  creditor  may  make  claim 
therefor,  and  have  his  claim  allowed,  with  the  right  to  share  in  the  dividends, 
if  the  contingency  shall  happen  before  the  order  for  the  final  dividend;  or  he 
may  at  any  time  apply  to  the  court  to  have  the  present  value  of  the  debt  or  lia-  , 
bility  ascertained  and  liquidated,  which  shall  then  be  done  in  such  a  manner  as 


THE  BANKRUPTCY  ACT  OF   1867.  1803 

the  court  shall  order,  and  he  shall  be  allowed  to  prove  for  the  amount  so  ascer- 
tained. 

Any  person  liable  as  bail,  surety,  guarantor,  or  otherwise  for  the  bankrupt, 
who  shall  have  paid  the  debt  or  any  part  thereof  in  discharge  of  the  whole,  shall 
be  entitled  to  prove  such  debt,  or  to  stand  in  the  place  of  the  creditor  if  he  shall 
have  proved  the  same,  although  such  payments  shall  have  been  made  after  the 
proceedings  in  bankruptcy  were  commenced. 

And  any  person  so  liable  for  the  bankrupt,  and  who  has  not  paid  the  whole 
of  said  debt,  but  is  still  liable  for  the  same  or  any  part  thereof,  may,  if  the 
creditor  shall  fail  or  omit  to  prove  such  debt,  prove  the  same,  either  in  the  name 
of  the  creditor  or  otherwise,  as  may  be  provided  by  the  rules,  and  subject  to 
such  regulations  and  limitations  as  may  be   established  by  such  rules. 

Where  the  bankrupt  is  liable  to  pay  rent,  or  other  debt  falling  due  at  fixed 
and  stated  periods,  the  creditor  may  prove  for  a  proportionate  part  thereof  up 
to  the  time  of  the  bankruptcy,  as  if  the  same  grew  due  from  day  to  day,  and 
not  at  such  fixed  and  stated  periods. 

If  any  bankrupt  shall  be  liable  for  unliquidated  damages  arising  out  of  any 
contract  or  promise,  or  on  account  of  any  goods  or  chattels  wrongfully  taken, 
converted,  or  withheld,  the  Court  may  cause  such  damages  to  be  assessed  in 
such  mode  as  it  may  deem  best,  and  the  sum  so  assessed  may  be  proved  against 
the  estate. 

No  debts  other  than  those  above  specified  shall  be  proved  or  allowed  against 
the  estate. 

§  20.  And  be  it  further  enacted,  That  in  all  cases  of  muUial  debts  or  mutual 
credits  between  the  parties  the  account  between  them  shall  be  stated,  and  one 
debt  set  ofif  against  the  other,  and  the  balance  only  shall  be  allowed  or  paid, 
but  no  set-off  shall  be  allowed  of  a  claim  in  its  nature  not  provable  against  the 
estate:  Provided,  That  no  set-off  shall  be  allowed  in  favor  of  any  debtor  to 
the  bankrupt  of  a  claim  purchased  by  or  transferred  to  him  after  the  filing  of  the 
petition. 

(*Or  in  case  of  compulsory  bankruptcy,  after  the  act  of  bankruptcy  upon  or 
in  respect  of  which  the  adjudication  shall  be  made,  and  with  a  view  of  making 
such  set-off.) 

When  a  creditor  has  a  mortgage  or  pledge  of  real  or  personal  property  of  the 
bankrupt,  or  a  lien  thereon  for  securing  the  payment  of  a  debt  owing  to  him 
from  the  bankrupt,  he  shall  be  admitted  as  a  creditor  only  for  the  balance  of  the 
debt  after  deducting  the  value  of  such  property,  to  be  ascertained  by  agreement 
between  him  and  the  assignee,  or  by  a  sale  thereof,  to  be  made  in  such  manner 
as  the  court  shall  direct; 

Or  the  creditor  may  release  or  convey  his  claim  to  the  assignee  upon  such 
property,  and  be  admitted  to  prove  his  whole  debt. 

If  the  value  of  the  property  exceeds  the  sum  for  which  it  is  so  held  as  secu- 
rity, the  assignee  may  release  to  the  creditor  the  bankrupt's  right  of  redemption 
therein  on  receiving  such  excess;  or  he  may  sell  the  property,  subject  to  the 
claim  of  the  creditor  thereon;  and  in  either  case  the  assignee  and  creditor,  respec- 
tively, shall  execute  all  deeds  and  writings  necessary  or  proper  to  consummate 
the  transaction.  If  the  property  is  not  so  sold  or  released  and  delivered  up, 
the  creditor  shall  not  be  allowed  to  prove  any  part  of  his  debt. 

§  21.  And  be  it  further  enacted,  That  no  creditor  proving  his  debt  or  claim 
shall  be  allowed  to  maintain  any  suit  at  law  or  in  equity  therefor  against  the 
bankrupt,  but  shall  be  deemed  to  have  waived  all  right  of  action  and  suit  against 


^So  added  by  act  of  22  June,  1874,  ch.  390,  sec.  6,  18  Stat.  179. 


1804  REMINGTON    ON    BANKRUPTCY. 

the  bankrupt,  and  all  proceedings  already  commenced,  or  unsatisfied  judgments 
already  obtained  thereon,  shall  be  deemed  to  be  discharged  and  surrendered 
thereby. 

(*But  a  creditor  proving  his  debt  or  claim  shall  not  be  held  to  have  waived 
his  right  of  action  or  suit  against  the  bankrupt  where  a  discharge  has  been  re- 
fused or  the  proceedings  have  been  determined  without  a  discharge.) 

And  no  creditor  whose  debt  is  provable  under  this  act  shall  be  allowed  to 
prosecute  to  final  judgment  any  suit  at  law  or  in  equity  therefor  against  the 
bankrupt,  until  the  question  of  the  debtor's  discharge  shall  have  been  deter- 
mined. 

And  any  such  suit  or  proceeding  shall,  upon  the  application  of  the  bankrupt, 
be  stayed  to  await  the  determination  of  the  court  in  bankruptcy  on  the  ques- 
tion of  the  discharge:  Provided,  There  be  no  unreasonable  delay  on  the  part 
of  the  bankrupt  in  endeavoring  to  obtain  his  discharge:  And  provided,  also. 
That  if  the  amount  due  the  creditor  is  in  dispute,  the  suit,  by  leave  of  the  court 
in  bankruptcy,  may  proceed  to  judgment  for  the  purpose  of  ascertaining  the 
amount  due,  which  amount  may  be  proved  in  bankruptcy,  but  execution  shall 
be  stayed  as  aforesaid. 

If  any  Bankrupt  shall,  at  the  time  of  adjudication,  be  liable  upon  any  bill  of 
exchange,  promissory  note,  or  other  obligation  in  respect  of  distinct  contracts 
as  a  member  of  two  or  more  firms  carrying  on  separate  and  distinct  trades,  and 
having  distinct  estates  to  be  wound  up  in  bankruptcy,  or  as  a  sole  trader,  and 
also  as  a  member  of  a  firm,  the  circumstances  that  such  firms  are  in  whole  or 
in  part  composed  of  the  same  individuals,  or  that  the  sole  contractor  is  also 
one  of  the  joint  contractors,  shall  not  prevent  proof  and  receipt  of  dividend  in 
respect  of  such  distinct  contracts  against  the  estates  respectively  liable  upon 
such  contracts. 

§  22.  And  be  it  further  enacted,  That  all  proofs  of  debts  against  the  estate 
of  the  bankrupt,  by  or  in  behalf  of  creditors  residing  within  the  judicial  district 
where  the  proceedings  in  bankruptcy  are  pendng,  shall  be  made  before  one  of 
the  registers  of  the  court  in  said  district,  and  by  or  in  behalf  of  non-resident 
debtors  before  any  register  in  bankruptcy  in  the  judicial  districts  where  such 
creditors,  or  either  of  them,  reside,  or  before  any  commissioner  of  the  Circuit 
Court  authorized  to  administer  oaths  in  any  district. 

(Sec.  5076  a  (22  June  1874,  ch.  390,  sec.  20  i8  Stat.  186).— That  in  addition 
to  the  officers  now  authorized  to  take  proof  of  debts  against  the  estate  of  a 
bankrupt,  notaries  public  are  hereby  authorized  to  take  such  proof,  in  the  man- 
ner and  under  the  regulations  provided  by  law;  such  proof  to  be  certified  by  the 
notary  and  attested  by  his  signature  and  official  seal.) 

(Sec.  5076  b  (Act  of  August  15,  1876,  ch.  304,  19  Stat.  206).— 5^  it  enacted  by 
the  Senate  and  House  of  Representatives  of  the  United  States  of  America  in  Con- 
gress assembled,  That  notaries  public  of  the  several  States,  Territories,  and 
the  District  of  Columbia  be,  and  they  are  hereby,  authorized  to  take  depositions, 
and  do  all  other  acts  in  relation  to  taking  testimony  to  be  used  in  the  courts  of 
the  United  States,  take  acknowledgments  and  affidavits,  in  the  same  manner 
and  with  the  same  effect  as  commissioners  of  the  United  States  Circuit  Court 
may  now  lawfully  take  or  do.) 

To  entitle  a  claimant  against  the  estate  of  a  bankrupt  to  have  his  demand 
allowed,  it  must  be  verified  by  a  deposition  in  writing  on  oath,  or  solemn  af- 
firmation, before  the  proper  register  or  commissioner,  setting  forth 

The  demand; 

The  consideration  thereof; 


^So  added  by  act  of  22  June,  1874,  ch.  390,  sec.  7,  18  Stat.  179. 


THE  BANKRUPTCY  ACT  OF   1867.  1805 

Whether  any  and  what  securities  are  held  therefor 

And  whether  any  and  what  payments  have  been  made  thereon; 

That  the  sum  claimed  is  justly  due  from  the  bankrupt  to  the  claimant; 

That  the  claim  has  not,  nor  has  any  other  person  for  his  use,  received  any 
security  or  satisfaction  whatever  other  than  that  by  him  set  forth; 

That  the  claim  was  not  procured  for  the  purpose  of  influencing  the  proceedings 
under  this  act; 

And  that  no  bargain  or  agreement,  express  or  implied,  has  been  made  or  en- 
tered into,  by  or  on  behalf  of  such  creditor,  to  sell,  transfer,  or  dispose  of  the 
said  claim,  or  any  part  thereof,  against  such  bankrupt,  or  take  or  receive,  directly 
or  indirectly,  any  money,  property,  or  consideration  whatever,  whereby  the  vote 
of  such  creditor  for  assignee,  or  any  action  on  the  part  of  such  creditor  or  any 
other  person  in  the  proceedings  under  this  act,  is  or  shall  be  in  any  way  affected, 
influenced,  or  controlled; 

And  no  claim  shall  be  allowed  unless  all  the  statements  set  forth  in  such  depo- 
sition shall  appear  to  be  true. 

Such  oath,  or  solemn  affirmation  shall  be  made  by  the  claimant  testfying  of 
his  own  knowledge,  unless  he  is  absent  from  the  United  States,  or  prevented  by 
some  other  good  cause  from  testifying,  in  which  cases  the  demand  may  be  veri- 
fied in  like  manner  by  the  attorney  or  authorized  agent  of  the  claimant  testify- 
ing to  the  best  of  his  knowledge,  information,  and  belief,  and  setting  forth  his 
means  of  knowledge,  or,  if  in  a  foreign  country,  the  oath  of  the  'creditor  may  be 
taken  before  any  minister,  consul,  or  vice-consul  of  the  United  States;  and  the 
court  may,  if  it  shall  see  fit,  require  further  pertinent  evidence,  either  for  or 
against  the  admission  of  the  claim. 

Corporations  may  verify  their  claims  by  the  oath  or  solemn  affirmation  of 
their  president,  cashier,  or  treasurer. 

If  the  proof  is  satisfactory  to  the  register  or  commissioner,  it  shall  be  signed 
by  the  deponent,  and  delivered  or  sent  by  mail  to  the  assignee,  who  shall 
examine  the  same  and  compare  it  with  the  books  and  accounts  of  the  bankrupt, 
and  shall  register,  in  a  book  to  be  kept  by  him  for  that  purpose,  the  names  of 
creditors  who  have  proved  their  claims,  in  the  order  in  which  such  proof  is 
received,  stating  the  time  and  receipt  of  such  proof,  and  the  amount  and  nature 
of  the  debts,  which  books  shall  be  open  to  the  inspection  of  all  the  creditors. 

The  court  may,  on  the  application  of  the  assignee,  or  of  the  bankrupt,  or 
without  any  application,  examine  upon  oath  the  bankrupt,  or  any  person  ten- 
dering or  who  has  made  proof  of  claims,  and  may  summon  any  person  capable 
of  giving  evidence  concerning  such  proof,  or  concerning  the  debt  sought  to  be 
proved,  and  shall  reject  all  claims  not  duly  proved,  or  where  the  proof  shows 
the  claim  to  be  founded  in  fraud,  illegality,  or  mistake. 

§  23.  And  be  it  furihcr  enacted.  That  when  a  claim  is  presented  for  proof 
before  the  election  of  the  assignee,  and  the  judge  entertains  doubts  of  its  valid- 
ity, or  of  the  right  of  the  creditor  to  prove  it,  and  is  of  opinion  that  such  valid- 
ity or  right  ought  to  be  investigated  by  the  assignee,  he  may  postpone  the  proof 
of  the  claim  until  the  assignee  is  chosen. 

Any  person  who,  after  the  approval  of  this  Act,  shall  have  accepted  any 
preference,  having  reasonable  cause  to  believe  that  the  same  was  made  or 
given  by  the  debtor  contrary  to  any  provision  of  this  Act,  shall  not  prove  the 
debt  or  claim  on  account  of  which  the  preference  was  made  or  given,  nor  shall 
he  receive  any  dividend  therefrom  until  he  shall  first  have  surrendered  to  the 
assignee  all  property,  money,  benefit,  or  advantage  received  by  him  under  such 
preference. 


1806  REMINGTON    ON    BANKRUPTCY. 

The  court  shall  allow  all  debts  duly  proved,  and  shall  cause  a  list  thereof  to 
be  made  and  certified  by  one  of  the  registers; 

And  any  creditor  may  act  at  all  meetings  by  his  duly  constituted  attorney  the 
same  as  though  personally  present. 

§  24.  And  be  it  further  enacted,  That  a  supposed  creditor  who  takes  an  ap- 
peal to  the  Circuit  Court  from  the  decision  of  the  District  Court  rejecting  his 
claim,  in  whole  or  in  part,  shall,  upon  entering  his  appeal  in  the  Circuit  Court, 
file  in  the  clerk's  ofiice  thereof  a  statement  in  writing  of  his  claim,  setting  forth 
the  same  substantially,  as  in  a  declaration  for  the  same  cause  of  action  at  law, 
and  the  assignee  shall  plead  or  answer  thereto  in  like  manner,  and  like  proceed- 
ings shall  thereupon  be  had  in  the  pleadings,  trial,  and  determination  of  the 
cause,  as  in  an  action  at  law  commenced  and  prosecuted,  in  the  usual  manner,  in 
the  courts  of  the  United  States,  except  that  no  execution  shall  be  awarded  against 
the  assignee  for  the  amount  of  a  debt  found  due  to  the  creditor.  The  final  judg- 
ment of  the  court  shall  be  conclusive,  and  the  list  of  debts  shall,  if  necessary, 
be  altered  to  conform  thereto.  The  party  prevailing  in  the  suit  shall  be  entitled 
to  costs  against  the  adverse  party,  to  be  taxed  and  recovered  as  in  suits  at  law; 
if  recovered  against  the  assignee,  they  shall  be  allowed  out  of  the  estate. 

A  bill  of  exchange,  promissory  note,  or  other  instrument  used  in  evidence 
upon  the  proof  of  a  claim,  and  left  in  court,  or  deposited  in  the  clerk's  office, 
may  be  delivered,  by  the  register  or  clerk  having  the  custody  thereof,  to  the 
person  who  used  it,  upon  his  filing  a  copy  thereof,  attested  by  the  clerk  of  the 
court,  who  shall  endorse  upon  it  the  name  of  the  party  against  whose  estate  it 
has  been  proved,  and  the- date  and  amount  of  any  dividend  declared  thereon. 

§  25.  And  be  it  further  enacted,  That  when  it  appears  to  the  satisfaction  of 
the  court  that  the  estate  of  the  debtor  or  any  part  thereof,  is  of  a  perishable  na- 
ture, or  liable  to  deteriorate  in  value,  the  court  may  order  the  same  to  be  sold  in 
such  manner  as  may  be  deemed  most  expedient,  under  the  direction  of  the 
messenger  or  assignee,  as  the  case  may  be,  who  shall  hold  the  funds  received 
in  place  of  the  estate  disposed  of; 

And  whenever  it  appears  to  the  satisfaction  of  the  court  that  the  title  to  any 
portion  of  an  estate,  real  or  personal,  which  has  come  into  possession  of  the 
assignee,  or  which  is  claimed  by  him,  is  in  dispute,  the  court  may,  upon  the 
petition  of  the  assignee,  and  after  such  notice  to  the  claimant,  his  agent,  or 
attorney,  as  the  court  shall  deem  reasonable,  order  it  to  be  sold,  under  the 
direction  of  the  assignee,  who  shall  hold  the  funds  received  in  place  of  the  es- 
tate disposed  of; 

And  the  proceeds  of  the  sale  shall  be  considered  the  measure  of  the  value  of 
the  property  in  any  suit  or  controversy  between  the  parties  in  any  courts. 

But  this  provision  shall  not  prevent  the  recovery  of  the  property  from  the 
possession  of  the  assignee  by  any  proper  action  commenced  at  any  time  before 
the  court  orders  the  sale. 

§  26.  And  be  it  further  enacted,  That  the  court  may,  on  the  application  of  the 
assignee  in  bankruptcy,  or  of  any  creditor,  or  without  any  application,  at  all 
times  require  the  bankrupt,  upon  reasonable  notice,  to  attend  and  submit  to  an 
examination,   on   oath,   upon   all   matters   relating — 

To  the  disposal  or  condition  of  his  property; 

To  his  trade  and  dealings  with  others,  and  his  accounts  concerning  the  same; 

To  all  debts  due  to  or  claimed  from  him; 

And  to  all  other  matters  concerning  his  property  and  estate,  and  the  due 
settlement  thereof  according  to  law; 

Which  examination  shall  be  in  writing,  and  shall  be  signed  by  the  bankrupt, 
and  be  filed  with  the  other  proceedings. 


the;  bankruptcy  act  of  1867.  1807 

And  the  court  may,  in  like  manner,  require  the  attendance  of  any  other  per- 
son as  a  witness;  and  if  such  person  shall  fail  to  attend  on  being  summoned 
thereto,  the  court  may  compel  his  attendance  by  warrant  directed  to  the  mar- 
shal, commanding  him  to  arrest  such  person,  and  bring  him  forthwith  before 
the  court,  or  before  a  register  in  bankruptcy  for  examination  as  such  witness. 

If  the  bankrupt  is  imprisoned,  absent,  or  disabled  from  attendance,  the  court 
may  order  him  to  be  produced  by  the  jailor,  or  any  officer  in  whose  custody  he 
may  be;  or  may  direct  the  examination  to  be  had,  taken,  and  certified,  at  such 
time  and  place  and  in  such  manner  as  the  court  may  deem  proper,  and  with  like 
efi'ect  as  if  such  examination  had  been  in  court. 

The  bankrupt  shall,  at  all  times  until  his  discharge,  be  subject  to  the  order  of 
the  court,  and  shall,  at  the  expense  of  the  estate,  execute  all  proper  writings 
and  instruments,  and  do  and  perform  all  acts  required  by  the  court  touching  the 
assigned  property  or  estate,  and  to  enable  the  assignee  to  demand,  recover,  and 
receive  all  the  property  and  estate  assigned,  wherever  situated;  and  for  neglect 
or  refusal  to  obey  any  order  of  the  court,  such  bankrupt  may  be  committed  and 
punished  as  for  a  contempt  of  court. 

If  the  bankrupt  is  without  the  district,  and  unable  to  return  and  personally 
attend  to  any  of  the  times,  or  ao  any  of  the  acts  which  niiy  be  specified  or 
required  pursuant  to  this  section,  and  if  it  appears  that  such  absence  was  not 
caused  by  willful  default,  and  if,  as  soon  as  may  be  after  the  removal  of  such 
impediment,  he  offers  to  attend  and  submit  to  the  order  of  the  court  in  all 
respects,  he  shall  be  permitted  so  to  do  with  like  efifect  as  if  he  had  not  been  in 
default. 

He  shall  also  be  at  liberty,  from  time  to  time,  upon  oath,  to  amend  and  cor- 
rect his  schedule  of  creditors  and  property  so  that  the  same  shall  conform  to 
the  facts. 

For  good  cause  shown,  the  wife  of  any  bankrupt  may  be  required  to  attend 
before  the  court,  to  the  end  that  she  may  be  examined  as  a  witness;  and  if  such 
wife  do  not  attend  at  the  time  and  place  specified  in  the  order,  the  bankrupt 
shall  not  be  entitled  to  a  discharge  unless  he  shall  prove  to  the  satisfaction  of 
the  court  that  he  was  unable  to  procure  the  attendance  of  his  wife. 

No  bankrupt  shall.be  liable  to  arrest  during  the  pendency  of  the  proceedings 
in  bankruptcy  in  any  civil  action  unless  the  same  is  founded  on  some  debt  or 
claim  from  which  his  discharge  or  bankruptcy  would  not  release  him. 

§  27.  And  be  it  further  enacted,  That  all  creditors  whose  debts  are  duly 
proved  and  allowed  shall  be  entitled  to  share  in  the  bankrupt's  property  and 
estate  pro  rata,  without  any  priority  or  preference  whatever,  except  that  wages 
due  from  him  to  any  operative,  or  clerk,  or  house  servant,  to  an  amount  not 
exceeding  fifty  dollars,  for  labors  performed  within  six  months  next  preceding 
the  adjudication  of  bankruptcy,  shall  be  entitled  to  priority,  and  shall  be  first 
paid  in  full; 

Provided,  That  any  debt  proved  by  any  person  liable  as  bail,  surety,  guar- 
antor, or  otherwise  for  the  bankrupt,  shall  not  be  paid  to  the  person  so  proving 
the  same  until  satisfactory  evidence  shall  be  produced  of  the  payment  of  such 
debt  by  such  person  so  liable,  and  the  share  to  which  such  debt  would  be 
entitled  may  be  paid  into  court,  or  otherwise  held  for  the  benefit  of  the  party 
entitled  thereto,  as. the  court  may  direct. 

At  the  expiration  of  three  months  from  the  date  of  the  adjudication  of  bank- 
ruptcy in  any  case,  or  as  much  earlier  as  the  court  may  direct,  the  court,  upon 
request  of  the  assignee,  shall  call  a  general  meeting  of  the  creditors,  of  which 
due  notice  shall  be  given; 


1808  REMINGTON    ON    BANKRUPTCY. 

And  the  assignee  shall  then  report  and  exhibit  to  the  court  and  to  the  creditors 
just  and  true  accounts  of  all  his  receipts  and  payments,  verified  by  his  oath; 

And  he  shall  also  produce  and  file  vouchers  for  all  payments  for  which 
vouchers  shall  be  required  by  any  rule  of  the  court; 

He  shall  also  submit  the  schedule  of  the  bankrupt's  creditors  and  property  as 
amended,  duly  verified  by  the  bankrupt,  and  a  statement  of  the  whole  estate  of 
the  bankrupt,  as  then  ascertained,  of  the  property  recovered  and  of  the  prop- 
erty outstanding,  specifying  the  cause  of  its  being  outstanding,  also  what  debts 
or  claims  are  yet  undetermined,  and  stating  what  sum  remains  in  his  hands. 

At  such  meeting  the  majority  in  value  of  the  creditors  present  shall  determine 
whether  any  and  what  part  of  the  net  proceeds  of  the  estate,  after  deducting 
and  retaining  a  sum  sufficient  to  provide  for  all  undetermined  claims  which, 
by  reason  of  the  distant  residence  of  the  creditor,  or  for  other  sufficient  reason, 
have  not  been  proved,  and  for  other  expenses  and  contingencies,  shall  be  divided 
among  the  creditors;  but  unless  at  least  one-half  in  value  of  the  creditors  shall 
attend  such  meeting,  either  in  person  or  by  attorney,  it  shall  be  the  duty  of  the 
assignee  so  to  determine. 

In  case  a  dividend  is  ordered  the  register  shall,  within  ten  days  after  such 
meeting,  prepare  a  list  of  creditors  entitled  totdividend,  and  shall  calculate  and 
set  opposite  to  the  name  of  each  creditor  who  has  proved  his  claim,  the  dividend 
to  which  he  is  entitled  out  of  the  net  proceeds  of  the  estate  set  apart  for  divi- 
dend, and  shall  forward  by  mail  to  every  creditor  a  statement  of  the  dividend 
to  which  he  is  entitled,  and  such  creditor  shall  be  paid  by  the  assignee  in  such 
manner  as  the  court  may  direct. 

§  28.  And  be  it  further  enacted,  That  the  like  proceedings  shall  be  had  at  the 
expiration  of  the  next  three  months,  or  earlier  if  practicable,  and  a  third  meet- 
ing of  creditors  shall  then  be  called  by  the  court,  and  a  final  dividend  then 
declared,  unless  any  action  at  law  or  suit  in  equity  be  pending,  or  unless  some 
other  estate  or  effects  of  the  debtor  afterwards  come  to  the  hands  of  the  as- 
signee, in  which  case  the  assignee  shall,  as  soon  as  may  be,  convert  such  estate 
or  effects  into  mone}^  and  within  two  months  after  the  same  shall  be  so  con- 
verted the  same  shall  be  divided  in  manner  aforesaid. 

Further  dividends  shall  be  made  in  like  manner  as  often  as  occasion  requires; 

And  after  the  third  meeting  of  creditors  no  further  meeting  shall  be  called, 
unless  ordered  by  the  court. 

If  at  any  time  there  shall  be  in  the  hands  of  the  assignee  any  outstanding 
debts  or  other  property,  due  or  belonging  to  the  estate,  which  cannot  be  col- 
lected and  received  by  the  assignee  without  unreasonable  or  inconvenient  delay 
or  expense,  the  assignee  may,  under  the  direction  of  the  court,  sell  and  assign 
such  debts  or  other  property  in  such  manner  as  the  court  shall  order. 

No  dividend  already  declared  shall  be  disturbed  by  reason  of  debts  being 
subsequently  proved,  but  the  creditors  proving  such  debts  shall  be  entitled  to  a 
dividend  equal  to  those  already  received  by  the  other  creditors  before  any  fur- 
ther payment  is  made  to  the  latter. 

Preparatory  to  the  final  dividend,  the  assignee  shall  submit  his  account  to  the 
court,  and  file  the  same,  and  give  notice  to  the  creditors  of  such  filing,  and  shall 
also  give  notice  that  he  will  apply  for  a  settlement  of  his  account,  and  for. a 
discharge  from  all  liability  as  assignee,  at  a  time  to  be  specified  in  such  notice, 
and  at  such  time  the  court  shall  audit  and  pass  the  accounts  of  the  assignee, 
and  such  assignee  shall,  if  required  by  the  court,  be  examined  as  to  the  truth 
of  such  account,  and,  if  found  correct,  he  shall  thereby  be  discharged  from  all 
liability  as  assignee  to  any  creditor  of  the  bankrupt. 

The  court  shall  thereupon  order  a  dividend  of  the  estate  and  effects,   or   o£ 


THE   BANKRUPTCY   ACT   OF    1867.  1809 

such  part  thereof  as  it  sees  fit,  among  such  of  the  creditors  as  have  proved  their 
claims,  in  proportion  to  the  respective  amount  of  their  said  debts.         # 

In  addition  to  all  expenses  necessarily  incurred  by  him  in  the  execution  of 
his  trust,  in  any  case,  the  assignee  shall  be  entitled  to  an  allowance  for  his 
services  in  such  case,  on  all  moneys  received  and  paid  out  by  him  therein,  for 
any  sum  not  exceeding  one  thousand  dollars,  five  per  centum  thereon;  for  any 
larger  sum,  not  exceeding  five  thousand  dollars,  two  and  a  half  per  centum  on 
the  excess  over  one  thousand  dollars;  and  for  any  larger  sum,  one  per  centum 
on  the  excess  over  five  thousand  dollars;  and  if,  at  any  time,  there  shall  not  be 
in  his  hands  a  sufficient  amount  of  money  to  defray  the  necessary  expenses 
required  for  the  further  execution  of  his  trust,  he  shall  not  be  obliged  to  pro- 
ceed therein  until  the  necessary  funds  are  advanced  or  satisfactorily  secured  to 
him. 

If,  by  accident,  mistake,  or  other  cause,  without  fault  of  the  assignee,  either 
or  both  of  the  said  second  and  third  meetings  should  not  be  held  within  the 
times  limited,  the  court  may,  upon  motion  of  an  interested  party,  order  such 
meetings,  with  like  effect  as  to  the  validity  of  the  proceedings  as  if  the  meeting 
had  been  duly  held. 

In  the  order  for  a  dividend,  under  this  section,  the  following  claims  shall  be 
entitled  to  priority  or  preference,  and  to  be  first  paid  in  full  in  the  following 
order: — 

First.  The  fees,  costs,  and  expenses  of  suits,  and  the  several  proceedings  in 
bankruptcy  under  this  act,  and  for  the  custody  of  property,  as  herein  provided. 

Second.  All  debts  due  to  the  United  States,  and  all  taxes  and  assessments 
under  the  laws  thereof. 

Third.  All  debts  due  to  the  State  in  which  the  proceedings  in  bankruptcy  are 
pending,  and  all  taxes  and  assessments  made  under  the  laws  of  such  State. 

Fourth.  Wages  due  to  any  operative,  clerk,  or  house  servant,  to  an  amount 
not  exceeding  fifty  dollars,  for  labor  performed  within  six  months  next  pre- 
ceding the  first  publication  of  the  notice  of  proceedings  in  bankruptcy. 

Fifth.  All  debts  due  to  any  persons  who,  by  the  laws  of  the  United  States, 
are  or  may  be  entitled  to  a  priority  or  preference,  in  like  manner  as  if  this  act 
had  not  been  passed:  Always  provided.  That  nothing  contained  in  this  act  shall 
interfere  with  the  assessment  and  collection  of  taxes  by  the  authority  of  the 
United  States  or  any  State. 

OF  THE  BANKRUPT'S  DISCHARGE  AND  ITS  EFFECT. 

§  29.  And  be  it  further  enacted,  That  at  any  time  after  the  expiration  of  six 
months  from  the  adjudication  of  bankruptcy,  or  if  no  debts  have  been  proven 
against  the  bankrupt,  or  if  no  assets  have  come  to  the  hands  of  the  assignee, 
at  any  time  after  the  expiration  of  sixty  days,*  and  within  one  year  from  the 
adjudication  of  bankruptcy,  the  bankrupt  may  apply  to  the  court  for  a  dis- 
charge from  his  debts,  and  the  court  shall  thereupon  order  notice  to  be  given 
by  mail  to  all  creditors  who  have  proved  their  debts,  and  by  publication  at  least 
once  a  week  in  such  newspapers  as  the  court  shall  designate,  due  regard  being 
had  to  the  general  circulation  of  the  same  in  the  district,  or  in  that  portion  of 
the  district  in  which  the  bankrupt  and  his  creditors  shall  reside,  to  appear  on  a 
day  appointed  for  that  purpose,  and  show  cause  why  a  discharge  should  not  be 
granted  to  the  bankrupt. 

No  discharge  shall  be  granted,  or,  if  granted,  be  valid — 


♦Amended    so    as    to    read    "and    before    the    final    disposition    of    the    cause.' 
(Act  of  July  26,  1876,  ch.  234,  sec.  1.) 
2  Rem— 39 


1810  REMINGTON  ON  BANKRUPTCY. 

If  the  bankrupt  has  willfully  sworn  falsely  in  his  affidavit  annexed  to  his  peti- 
tion, schedule,  or  inventory,  or  upon  any  examinatidn  in  the  course  of  the  pro- 
ceedings in  bankruptcy,  in  relation  to  any  material  fact  concerning  his  estate  or 
his  debts,  or  to  any  other  material  fact; 

Or  if  he  has  concealed  any  part  of  his  estate  or  effects,  or  any  books  or  writ- 
ings relating  thereto; 

■  Or  if  he  has  been  guilty  of  any  fraud  or  negligence  in  the  care,  custody,  or 
delivery  to  the  assignee  of  the  property  belonging  to  him  at  the  time  of  the 
presentation  of  his  petition  and  inventory,  excepting  such  property  as  he  is  per- 
mitted to  retain  under  the  provisions  of  this  Act; 

Or  if  he  has  caused,  permitted,  or  suffered  any  loss,  waste,  or  destruction 
thereof; 

Or  if,  within  four  months  before  the  commencement  of  such  proceedings,  he 
has  procured  his  lands,  goods,  money,  or  chattels  to  be  attached,  sequestered, 
or  seized,  on  execution; 

Or  if,  since  the  passage  of  this  act,  he  has  destroyed,  mutilated,  altered,  or 
falsified  any  of  his  books,  documents,  papers,  writings,  or  securities; 

Or  has  made  or  been  privy  to  the  making  of  any  false  or  fraudulent  entry  in 
any  book  of  account  or  other  document  with  intent  to  defraud  his  creditors; 

Or  has' removed,  or  caused  to  be  removed,  any  part  of  his  property  from  the 
district  with  intent  to  defraud  his  creditors; 

Or  if  he  has  given  any  fraudulent  preference  contrary  to  the  provisions  of 
this  Act; 

Or  made  any  fraudulent  payment,  gift,  transfer,  conveyance,  or  assignment 
of  any  part  of  his  property; 

Or  has  lost  any  part  thereof  in  gaming; 

Or  has  admitted  a  false  or  fictitious  debt  against  his  estate; 

Or  if,  having  knowledge  that  any  person  has  proved  such  false  or  fictitious 
debt,  he  has  not  disclosed  the  same  to  his  assignee  within  one  month  after  such 
knowledge; 

Or  if,  being  a  merchant  or  tradesman,  he  has  not,  subsequently  to  the  pas- 
sage of  this  Act,  kept  proper  books  of  account; 

Or  if  he,  or  any  person  in  his  behalf,  has  procured  the  assent  of  any  creditor 
to  the  discharge,  or  influenced  the  action  of  any  creditor  at  any  stage  of  the 
proceedings  by  any  pecuniary  consideration  or  obligation; 

Or  if  he  has,  in  contemplation  of  becoming  bankrupt,  made  any  pledge,  pay- 
ment, transfer,  assignment,  or  conveyance  of  any  part  of  his  property,  directly 
or  indirectly,  absolutely  or  conditionally,  for  the  purpose  of  preferring  any 
creditor  or  person  having  a  claim  against  him,  or  who  is  or  may  be  under  lia- 
bility for  him,  or  for  the  purpose  of  preventing  the  property  from  coming  into 
the  hands  of  the  assignee,  or  of  being  distributed  under  this  act  iij  satisfaction 
of  his  debts; 

Or  if  he  has  been  convicted  of  any  misdemeanor  under  this  Act,  or  has  been 
guilty  of  any  fraud  whatever  contrary  to  the  true  intent  of  this  Act; 

And  before  any  discharge  is  granted,  the  bankrupt  shall  take  and  subscribe 
an  oath  to  the  effect  that  he  has  not  done,  suffered  or  been  privy  to  any  act, 
matter,  or  thing  specified  in  this  act  as  a  ground  for  withholding  such  dis- 
charge, or  as  invalidating  such  discharge  if  granted. 

§  30.  And  be  it  further  enacted,  That  no  person  who  shall  have  been  dis- 
charged under  this  Act,  and  shall  afterwards  become  bankrupt,  on  his  own  ap- 
plication, shall  be  again  entitled  to  a  discharge,  whose  estate  is  insufficient  to  pay 
seventy  per  centum  of  the  debts  proved  against  it,  unless  the  assent  in  writing 


THE   BANKRUPTCY   ACT   OF    1867.  1811 

of  three-fourths  in  value  of  his  creditors  who  have  proved  their  claims,  is  filed 
at  or  before  the  time  of  application  for  discharge. 

But  a  bankrupt,  who  shall  prove  to  the  satisfaction  of  the  court  that  he  has 
paid  all  the  debts  owing  by  him  at  the  time  of  any  previous  bankruptcy,  or  who 
has  been  voluntarily  released  therefrom  by  his  creditors,  shall  be  entitled  to  a 
•discharge  in  the  same  manner  and  with  the  same  efifect  as  if  he  had  not  previ- 
ously been  bankrupt. 

§  31.  And  be  it  further  enacted,  That  any  creditor  opposing  the  discharge  of 
any  bankrupt  may  file  a  specification  in  writing  of  the  grounds  of  his  opposi- 
tion, and  the  Court  may  in  its  discretion  order  any  question  of  fact  so  presented 
to  be  tried  at  a  stated  session  of  the  District  Court. 

§  32.  And  be  it  further  enacted,  That  if  it  shall  appear  to  the  Court  that  the 
bankrupt  has  in  all  things  conformed  to  his  duty  under  this  act,  and  that  he  is 
entitled,  under  the  provisions  thereof,  to  receive  a  discharge,  the  Court  shall 
grant  him  a  discharge  from  all  his  debts  except  as  hereinafter  provided,  and 
shall  give  him  a  certificate  thereof  under  the  seal  of  the  court,  in  substance  as 
follows: 

District  Court  of  the  United  States,  District  of . 

Whereas ,  has  been  duly  adjudged  a  bankrupt  under  the  Act  of  Con- 
gress establishing  a  uniform  system  of  bankruptcy  throughout  the  United 
States,  and  appears  to  have  conformed  to  all  the  requirements  of  law  in  that 
behalf,  it  is  therefore  ordered  by  the  Court  that  said be  forever  dis- 
charged from  all  debts  and  claims  which  by  said  Act  are  made  provable  against 

his  estate,  and  which  existed  on  the day  of ,  on  which  day  the  petition 

for  adjudication  was  filed  by  or   [or  against]   him  excepting  such  debts,  if  any, 
as  are  by  said  Act  excepted  from  the  operation  of  a  discharge  in  bankruptcy. 

Given  under  my  hand  and  the  seal  of  the  court  at  ,  in  the  said  district, 

this  day  of ,  A.  D.  . 

[Seal.]  ,  Judge. 

§  33.    And  be  it  further  enacted,     That  no  debt  created  by  the  fraud  or  em- 
bezzlement of  the  bankrupt  or  by  his  defalcation  as  a  public  officer,  or  while 
acting  in  any  fiduciary  character,  shall  be   discharged  under  this   Act;  but  the- 
debt  may  be  proved,  and  the  dividend  thereon  shall  be  a  payment  on  account  of 
said  debt; 

And  no  discharge  granted  under  this  Act  shall  release,  discharge,  or  afifect 
any  person  liable  for  the  same  debt  for  or  with  the  bankrupt,  either  as  partner, 
joint-contractor,  indorser,  surety,  or  otherwise. 

And  in  all  proceedings  in  bankruptcy  commenced  after  one  year  from  the 
time  this  Act  shall  go  into  operation,  no  discharge  shall  be  granted  to  a  debtor 
whose  assets  do  not  pay  fifty  per  centum  of  the  claims  against  his  estate, 
("upon  which  he  is  liable  as  the  principal  debtor."  So  amended,  Act  of  July 
27,  1868,  ch.  258,  sec.  1),  unless  the  assent  in  writing  of  a  majority  in  number 
and  value  of  his  creditors  who  have  proved  their  claims,  is  filed  in  the  case  at 
or  before  the  time  of  application  for  discharge. 

(R.  S.,  sec.  5112  a  (22  June,  1874,  ch.  390,  sec.  9,  18  Stat.  180).— That  in  cases 
of  compulsory  or  involuntary  bankruptcy,  the  provisions  of  said  act,  and  any 
amendment  thereof,  or  of  any  supplement  thereto,  requiring  the  payment  of 
any  proportion  of  the  debts  of  the  bankrupt,  or  the  assent  of  any  portion  of  his 
creditors,  as  a  condition  of  his  discharge  from  his  debts,  shall  not  apply;  but  he 
may,  if  otherwise  -entitled  thereto,  be  discharged  by  the  court  in  the  same  man- 
ner and  with  the  same  effect  as  if  he  had  paid  such  per  centum  of  his  debts,  or 


1812  RDMINGTON  ON  BANKRUPTCY. 

as  if  the  required  proportion  of  his  creditors  had  assented  thereto.  And  in  cases 
of  voluntary  bankruptcy,  no  discharge  shall  be  granted  to  a  debtor ^  whose 
assets  shall  not  be  equal  to  thirty  per  centum  of  the  claims  proved  against  his 
estate,  upon  which  he  shall  be  liable  as  principal  debtor  without  the  assent  of 
at  least  one-fourth  of  his  creditors  in  number,  and  one-third  in  value.  And  the 
provision  in  section  five  thousand  one  hundred  and  twelve  (thirty-three  of  said 
act  of  March  second,  eighteen  hundred  and  sixty-seven)  requiring  fifty  per  cen- 
tum of  such  assets  is  hereby  repealed.) 

§  34.  And  be  it  further  enacted,  That  a  discharge  duly  granted  under  this  Act 
shall,  with  the  exceptions  aforesaid,  release  the  bankrupt  from  all  debts,  claims, 
liabilities,  and  demands  which  were  or  might  have  been  proved  against  his 
estate  in  bankruptcy,  and  may  be  pleaded,  by  a  simple  averment  that  on  the 
day  of  its  date  such  discharge  was  granted  to  him,  setting  the  same  forth  in 
hxc  verba,  as  a  full  and  complete  bar  to  all  suits  brought  on  any  such  debts, 
claims,  liabilities,  or  demands,  and  the  certificate  shall  be  conclusive  evidence 
in  favor  of  such  bankrupt  of  the  fact  and  the  regularity  of  such  discharge; 

Aki'ays  provided.  That  any  creditor  or  creditors  of  said  bankrupt,  whose 
debt  was  proved  or  provable  against  the  estate  in  bankruptcy,  who  shall  see  fit 
to  contest  the  validity  of  said  discharge  on  the  ground  that  it  was  fraudulently 
obtained,  may,  at  any  time  within  two  years  after  the  date  thereof,  apply  to  the 
court  which  granted  it  to  set  aside  and  annul  the  same. 

Said  application  shall  be  in  writing;  shall  specify  which,  in  particular,  of  the 
several  acts  mentioned  in  section  twenty-nine  it  is  intended  to  give  evidence  of 
against  the  bankrupt,  setting  forth  the  grounds  of  avoidance,  and  no  evidence 
shall  be  admitted  as  to  any  other  of  the  said  acts;  but  said  application  shall  be 
subject  to  amendment  at  the  discretion  of  the  court. 

The  court  shall  cause  reasonable  notice  of  said  application  to  be  given  to  said 
bankrupt,  and  order  him  to  appear  and  answer  the  same,  within  such  time  as 
to  the  court  shall  seem  fit  and  proper. 

If,  upon  the  hearing  of  said  parties,  the  court  shall  find  that  the  fraudulent 
acts,  or  any  of  them,  set  forth  as  aforesaid  by  said  creditor  or  creditors  against 
the  bankrupt,  are  proved,  and  that  said  creditor  or  creditors  had  no  knowl- 
edge of  the  same  until  after  the  granting  of  said  discharge,  judgment  shall 
be  given  in  favor  of  said  creditor  or  c^reditors,  and  the  discharge  of  said 
bankrupt  shall  be  set  aside  and  annulled.  But  if  said  court  shall  find  that  said 
fraudulent  acts,  and  all  of  them,  set  forth  as  aforesaid,  are  not  proved,  or  that 
they  were  known  to  said  creditor  or  creditors  before  the  granting  of  said  dis- 
charge,, then  judgment  shall  be  rendered  in  favor  of  the  bankrupt,  and  the 
validity  of  his  discharge  shall  not  be  affected  by  said  proceedings. 

PREFERENCES    AND     FRAUDULENT     CONVEYANCES     DECLARED 

VOID. 

§  35.  And  be  it  further  enacted,  That  if  any  person,  being  insolvent,  or  in  con- 
templation of  insolvency,  within  four  months  before  the  filing  of  the  petition  by 
or  against  him,  with  a  view  to  give  a  preference  to  any  creditor  or  person  hav- 
ing a.  claim  against  him,  or  who  is  under  any  liability  for  him,  procures  any 
part  of  his  property  to  be  attached,  sequestered,  or  seized  on  execution,  or 
makes  any  payment,  pledge,  assignment,  transfer,  or  conveyance  of  any  part  of 
his  property,  either  directly  or  indirectly,  absolutely  or  conditionally — the 
person  receiving  such  payment,  pledge,  assignment,  transfer,  or  conveyance, 
or  to  be  benefited  thereby,  or  by  such  attachment,  having  reasonable  cause  to 


THE    BANKRUPTCY   ACT    OF    1867.  1813 

believe  such  person  is  insolvent*  (and  that  such  attachment,  payment,  pledge, 
assignment,  or  conveyance,  is  made  in  fraud  of  the  provisions  of  this  Act — 
the  same  shall  be  void,  and  the  assignee  may  recover  the  property,  or  the  value 
of  it,  from  the  person  so  receiving  it,  or  so  to  be  benefited). 

And  if  any  person  being  insolvent,  or  in  contemplation  of  insolvency  or  bank- 
ruptcy, within  six  months  before  the  filing  of  the  petition  by  or  against  him, 
makes  any  payment,  sale,  assignment,  transfer,  conveyance,  or  other  disposi- 
tion of  any  part  of  his  property  to  anj^  person  who  then  has  reasonable  cause 
lo  believe  him  to  be  insolvent,  or  to  be  acting  in  contemplation  of  insolvency, 
andf  that  such  payment,  sale,  assignment,  transfer,  or  other  conveyance  is 
made  with  a  view  to  prevent  his  property  from  coming  to  his  assignee  in 
bankruptcy,  or  to  prevent  the  same  from  being  distributed  under  this  Act,  or 
to  defeat  the  object  of,  or  in  any  way  impair,  hinder,  impede,  or  delay  the 
operation  and  efifect  of,  or  to  evade  any  of  the  provisions  of  this  Act,  the  sale, 
assignment,  transfer,  or  conveyance  shall  be  void,  and  the  assignee  may  recover 
the  property,  or  the  value  thereof,  as  assets  of  the  bankrupt.  And  if  such  sale, 
assignment,  transfer,  or  conveyance  is  not  made  in  the  usual  and  ordinary 
course  of  business  of  the  debtor,  the  fact  shall  be  prima  facie  evidence  of  fraud. 
Any  contract,  covenant,  or  security  made  or  given  by  a  bankrupt  or  other 
person  with,  or  in  trust  for,  any  creditor,  for  securing  the  payment  of  any 
money  as  a  consideration  for,  or  with  intent  to  induce  the  creditor  to  forbear 
opposing  the  application  for  discharge  of  the  bankrupt,  shall  be  void; 

And  if  any  creditor  shall  obtain  any  sum  of  money  or  other  goods,  chattels, 
or  security  from  any  person  as  an  inducement  for  forbearing  to  oppose,  or  con- 
senting to  such  application  for  discharge,  every  creditor  so  offending  shall 
forfeit  all  right  to  any  share  or  dividend  in  the  estate  of  the  bankrupt,  and 
shall  also  forfeit  double  the  value  or  amount  of  such  money,  goods,  chattels, 
or  security  so  obtained,  to  be  recovered  by  the  assignee  for  the  benefit  of  the 
estate. 

(R.  S.,  sec.  5130  a  (22  June,  1874,  ch.  390, -sec.  10,  18  Stat.  180).— That  in 
cases  of  involuntary  or  compulsory  bankruptcy,  the  period  of  four  months 
mentioned  in  section  five  thousand  one  hundred  and  twenty-eight  (thirty-five) 
of  the  act  to  which  this  is  an  amendment,  is  hereby  changed  to  two  months, 
but  this  provision  shall  not  take  effect  until  two  months  after  the  passage  of  this 
act,  and  in  the  cases  aforesaid,  the  period  of  six  months  mentioned  in  said  sec- 
tion five  thousand  one  hundred  and  twenty-nine  (thirty-five)  is  hereby  changed 
to  three  months,  but  this  provision  shall  not  take  effect  until  three  months  after 
the  passage  of  this  act.) 

BANKRUPTCY  OF  PARTNERSHIPS  AND  OF  CORPORATIONS. 

§  36.  And  be  it  further  enacted.  That  where  two  or  more  persons  who  are 
partners  in  trade  shall  be  adjudged  bankrupt,  either  on  the  petition  of  such  part- 
ners, or  any  one  of  them,  or  on  the  petition  of  any  creditor  of  the  partners,  a 
warrant  shall  issue  in  the  manner  provided  by  this  Act,  upon  which  all  the 
joint  stock  and  property  of  the  copartnership,  and  also  all  the  separate  estate  of 


*Amended  so  as  to  read:  "Knowing  that  such  attachment,  sequestration, 
seizure,  paj^ment;  pledge,  assignment,  or  conveyance  is  made  in  fraud  of  the 
provisions  of  this  Title,  the  same  shall  be  void,  and  the  assignee  may  recover 
the  property,  or  the  value  of  it,  from  the  person  so  receiving  it,  or  so  to  be 
benefited.  And  nothing  in  said  section  five  thousand  one  hundred  and  twenty- 
eight  (thirty-five)  shall  be  construed  to  invalidate  any  loan  of  actual  value,  or 
the  security  therefor,  made  in  good  faith,  upon  a  security  taken  in  good  faith  on 
the  occasion  of  the  making  of  such  loan." — Act  of  June  22,  1874.     R.  S.  §  5128. 

t(The  word  "knowing"  inserted  by  act  of  June  22,  1874,  ch.  390,  sec.  11.) 


1814  REMINGTON  ON  BANKRUPTCY. 

■each  of  the  partners,  shall  be  taken,  excepting  such  parts  thereof  as  are  herein- 
before excepted; 

And  all  the  creditors  of  the  company,  and  the  separate  creditors  of  each  part- 
ner, shall  be  allowed  to  prove  their  respective  debts; 

And  the  assignee  shall  be  chosen  by  the  creditors  of  the  company,  and  shall 
also  keep  separate  accounts  of  the  joint  stock  or  property  of  the  copartnership, 
and  of  the  separate  estate  of  each  member  thereof; 

And  after  deducting  out  of  the  whole  amount  received  by  such  assignee  the 
whole  of  the  expenses  and  disbursements,  the  net  proceeds  of  the  joint  stock 
'  shall  be  appropriated  to  pay  the  creditors  of  the  copartnership,  and  the  net  pro- 
ceeds of  the   separate  estate   of  each  partner  shall  be  appropriated   to  pay  his 
separate  creditors; 

And  if  there  shall  be  any  balance  of  the  separate  estate  of  any  partner,  after 
the  payment  of  his  separate  debts,  such  balance  shall  be  added  to  the  joint 
stock  for  the  payment  of  the  joint  creditors; 

And  if  there  shall  be  any  balance  of  the  joint  stock  after  payment  of  the  joint 
debts,  such  balance  shall  be  divided  and  appropriated  to  and  among  the  sepa- 
rate estates  of  the  several  partners,  according  to  their  respective  right  and 
interest  therein,  and  as  it  would  have  been  if  the  partnership  had  been  dis- 
solved without  any  bankruptcy; 

And  the  sum  so  appropriated  to  the  separate  estate  of  each  partner  shall  be 
applied  to  the  payment  of  his  separate  debts; 

And  the  certificate  of  discharge  shall  be  granted  or  refused  to  each  partner  as 
the  same  would  or  ought  to  be  if  the  proceedings  had  been  against  him  alone 
under  this  Act; 

And  in  all  other  respects  the  proceedings  against  partners  shall  be  conducted 
in  the  like  manner  as  if  they  had  been  commenced  and  prosecuted  against  one 
person  alone. 

If  such  copartners  reside  in  different  districts,  that  court  in  which  the  petition 
is  first  filed  shall  retain  exclusive  jurisdiction  over  the  case. 

§  37.  Attd  be  it  further  enacted.  That  the  provisions  of  this  Act  shall  apply  to 
all  moneyed,  business,  or  commercial  corporations  and  joint-stock  companies, 
and  that  upon  the  petition  of  any  officer  of  any  such  corporation  or  company 
duly  authorized  by  a  vote  of  a  majority  of  the  corporators  present,  at  any  legal 
meeting  called  for  the  purpose,  or  upon  the  petition  of  any  creditor  or  creditors 
of  such  corporation  or  company,  made  and  presented  in  the  manner  hereinafter 
provided  in  respect  to  debtors,  the  like  proceedings  shall  be  had  and  taken  as 
are  hereinafter  provided  in  the  case  of  debtors; 

And  all  the  provisions  of  this  Act  which  apply  to  the  debtor,  or  set  forth  his 
duties  in  regard  to  furnishing  schedules  and  inventories,  executing  papers, 
submitting  to  examinatipns,  disclosing,  making  over,  secreting,  concealing, 
conveying,  assigning,  or  paying  away  his  money  or  property,  shall  in  like 
manner,  and  with  like  force,  effect,  and  penalties,  apply  to  each  and  every 
officer  of  such  corporation  or  company  in  relation  to  the  same  matters  concern- 
ing the  corporation  or  company,  and  the  money  and  property  thereof. 
•  All  payments,  conveyances,  and  assignments  declared  fraudulent  and  void 
by  this  Act,  when  made  by  a  debtor,  shall  in  like  manner,  and  to  the  like 
extent,  and  with  like  remedies,  be  fraudulent  and  void  when  made  by  a  corpo- 
ration or  company.  No  allowance  or  discharge  shall  be  granted  to  any  corpo- 
ration or  jomt-stock  company,  or  to  any  person,  or  officer,  or  member  thereof- 

Provided,  That  whenever  any  corporation  by  proceedings  under  this  Act 
shall  be  declared  bankrupt,  all  its  property  and  assets  shall  be  disturbed  to  the 
creditors  of  such  corporation  in  the  manner  provided  in  this  Act  in  respect  to 
natural  persons. 


THE   BANKRUPTCY   ACT   Of    1867.  1815 

OF  DATES  AND  DEPOSITIONS. 

§  38.  And  be  it  further  enacted.  That  the  filing  of  a  petition  for  adjudication 
in  bankruptcy,  either  by  a  debtor  in  his  own  behalf,  or  by  any  creditor  against  a 
debtor,  upon  which  an  order  may  be  issued  by  the  court,  or  by  a  register,  in 
the  manner  provided  in  section  four,  shall  be  deemed  and  taken  to  be  the  com- 
mencement of  proceedings  in  bankruptcy  under  this  act; 

The  proceedings  in  all  cases  of  bankruptcy  shall  be  deemed  matters  of  record, 
but  the  same  shall  not  be  required  to  be  recorded  at  large,  but  shall  be  carefully 
filed,  kept,  and  numbered  in  the  office  of  the  clerk  of  the  court,  and  a  docket 
only,  or  short  memorandum  thereof,  kept  in  books  to  be  provided  for  that  pur- 
pose, which  shall  be  open  to  public  inspection. 

Copies  of  such  records,  duly  certified  under  the  seal  of  the  court,  shall  in  all 
cases  be  prima  facie  evidence  of  the  facts  therein  stated. 

Evidence  of  examination  in  any  of  the  proceedings  under  this  Act  may  be 
taken  before  the  court,  or  a  register  in  bankruptcy,  viva  voce  or  in  writing, 
before  a  commissioner  of  the  Circuit  Court,  or  by  affidavit,  or  on  commission,, 
and  the  court  may  direct  a  reference  to  a  register  in  bankruptcy,  or  other  suit- 
able person,  to  take  and  certify  such  examination,  and  may  compel  the  attend- 
ance of  witnesses,  the  production  of  books  and  papers,  and  the  giving  of 
testimony,  in  the  same  manner  as  in  suits  in  equity  in  the  Circuit  Court. 

INVOLUNTARY  BANKRUPTCY. 

§  39.  And  be  it  furtlier  enacted,  That  any  person  residing  and  owing  debts  as 
aforesaid,  who,  after  the  passage  of  this  Act, 

Shall  depart  from  the  State,  district,  or  territory  of  which  he  is  an  inhabitant, 
with  intent  to  defraud  his  creditors; 

Or,  being  absent,  shall,  with  such  intent,  remain  absent; 

Or  shall  conceal  himself  to  avoid  the  service  of  legal  process  in  any  action  for 
the  recovery  of  a  debt  or  demand  provable  under  this  Act; 

Or  shall  conceal  or  remove  any  of  his  property  to  avoid  its  being  attached, 
taken,  or  sequestered  on  legal  process. 

Or  shall  make  any  assignment,  gift,  sale,  conveyance,  or  transfer  of  his 
estate,  property,  rights,  or  credits,  either  within  the  United  States  or  elsewhere, 
with  intent  to  delay,  defraud,  or  hinder  his  creditors; 

Or  who  has  been  arrested  and  held  in  custody  under  or  by  virtue  of  mesne 
process  or  execution  issued  out  of  any  court  of  any  State,  district  or  Territory 
within  which  such  debtor  resides  or  has  property,  founded  upon  a  demand  in 
its  nature  provable  against  a  bankrupt's  estate  under  this  Act,  and  for  a  sum 
exceeding  one  hundred  dollars,  and  such  process  is  remaining  in  force  and  not 
discharged  by  payment,  or  in  any  other  manner  provided  by  the  law  of  such 
State,  district,  or  Territory  applicable  thereto,  for  a  period  of  seven  .days; 

Or  has  been  actually  imprisoned  for  more  than  *(seven)  days  in  a  civil  action, 
founded  on  contract,  for  the  sum  of  one  hundred  dollars  or  upwards. 

Or  who,  being  bankrupt  or  insolvent,  or  in  contemplation  of  bankruptcy  or 
insolvency  shall  make  any  payment,  gift,  grant,  sale,  conveyance,!  (or  transfer 
of  money,  or  other  property,  estate,  rights,  or  credits,  or  give  any  warrant  to 
confess  judgment,  or  procure  or  sufifer  his  property  to  be  taken  on  legal  proc- 
ess), with  intent  to  give  a  preference  to  one  or  more  of  his  creditors,  or  to  any 
person  or  persons  who  are  or  may  be  liable  for  him  as  indorsers,  bail,  sureties. 


*(" Amended  to  "twenty."     R.  S.,  sec.  .5021;  Act  of  June  22,  1874). 

tAmended  'so  as  to  read,  "Or  transfer  of  money  or  other  property,  estate 
rights,  or  credits,  or  confess  jttdgment,  or  give  any  warrant  to  confess  judg- 
ment, or  procure  his  property  to  be  taken  on  legal  process." 


1816  REMINGTON  ON  BANKRUPTCY. 

or  otherwise,  or  with  the  intent,  by  such  disposition  of  his  property,  to  defeat 
or  delay  the  operation  of  this  Act; 

*(Or  who,  being  a  banker,  merchant,  or  trader,  has  stopped  or  suspended  and 
not  resumed  payment  of  his  commercial  paper,  within  a  period  of  fourteen 
days) ; 

Shall  be  deemed  to  have  committed  an  act  of  bankruptcy,  and,  subject  to  the 
conditions  hereinafter  prescribed,  shall  be  adjudged  a  bankrupt,  on  the  petition 
of  one  or  more  of  his  creditors,!  (the  aggregate  of  whose  debts  provable  under 
this  Act  amount  to  at  least  two  hundred  and  fifty  dollars,  provided  such  petition 
is  brought  within  six  months  after  the  act  of  bankruptcy  shall  have  been  com- 
mitted.) 

JAnd  if  such  person  shall  be  adjudged  a  bankrupt,  the  assignee  may  recover 
back  the  money  or  other  property  so  paid,  conveyed,  sold,  assigned,  or  trans- 
ferred  contrary   to  this   Act:     Provided,  the  person  receiving  such   payment  or 


*Words  in  parentheses  amended  so  as  to  read,  "or  who,  being  a  bank, 
banker,  broker,  merchant-  trader,  (j)  manufacturer,  or  miner,  has  fraudulently 
stopped  payment,  or  Avho,  being  a  bank,  banker,  broker,  merchant,  trader,  man- 
ufacturer, or  miner,  has  stopped,  or  suspended  and  not  resumed  payment, 
within  a  period  of  forty  days  of  his  commercial  paper,  (made  or  passed  in  the 
course  of  his  business  as  such),  or  who,  being  a  bank  or  banker,  shall  fail  for 
forty  days,  to  pay  any  depositor  upon  demand  of  payment  lawfully  made. 
R.  S.,  sec.  5021,  Act  of  June  22,  1874.) 

tWords  in  parentheses  amended  so  as  to  read,  "who  shall  constitute  one- 
fourth  thereof,  at  least,  in  number,  and  the  aggregate  of  whose  debts  (1)  prov- 
able under  this  act  amounts  to  at  least  one-third  of  the  debts  so  provable. 
R.  S.,  sec.  5021,  Act  of  June  22,  1874.) 

Jin  the  Revised  Statutes,  section  5021,  the  following  was  inserted  before 
and  instead  of  this  paragraph:  Provided,  also.  That  no  voluntary  assignment 
by  a  debtor  or  debtors  of  all  his  or  their  property,  heretofore  or  hereafter  made 
in  good  faith  for  the  benefit  of  all  his  or  their  creditors,  ratably  and  without 
creating  any  preference,  and  valid,  according  to  the  law  of  the  State  where 
made,  shall  of  itself,  in  the  event  of  his  or  their  being  subsequently  adjudicated 
bankrupts  in  a  proceeding  of  involuntary  bankruptcy,  be  a  bar  to  the  discharge 
of  such  debtor  or  debtors.  And  the  provisions  of  this  section  shall  apply  to  all 
cases  of  compulsory  or  involuntary  bankruptcy  commenced  since  the  first  day 
of  December,  eighteen  hundred  and  seventy-three,  as  well  as  to  those  com- 
menced hereafter.  And  in  all  cases  commenced  since  the  first  day  of  De- 
ceniber,  eighteen  hundred  and  seventy-three,  and  prior  to  the  passage  of 
this  Act,  as  well  as  those  commenced  hereafter,  the  court  shall,  if  such  allega- 
tion as  to  the  number  or  amount  of  petitioning  creditors  be  denied  by  the 
debtor  by  a  statement  in  writing  to  that  efifect,  require  him  to  file  in  court 
forthwith  a  full  list  of  his  creditors,  with  their  places  of  residence  and  the 
sums  due  them  respectively,  and  shall  ascertain,  upon  reasonable  notice  to  the 
creditors,  whether  one-forth  in  number  and  one-third  in  amount  thereof,  as 
aforesaid,  have  petitioned  that  the  debtor  be  adjudged  a  bankrupt.  But  if  such 
debtor  shall,  on  the  filing  of  the  petition,  admit  in  writing  that  the  requisite 
number  and  amount  of  creditors  have  petitioned,  the  court  (if  satisfied  that  the 
admission  was  made  in  good  faith),  shall  so  adjudge,  which  judgment  shall  be 
final,  and  the  matter  proceed  within  further  steps  on  that  subject.  And  if  it 
shall  appear  that  such  number  and  amount  have  not  so  petitioned,  the  court 
shall  grant  reasonable  time,  not  exceeding  in  cases  heretofore  commenced 
twenty  days,  and  in  cases  hereafter  commenced  ten  days,  within  which  other 
creditors  may  join  in  such  petition.  And  if,  at  the  expiration  of  such  time  so 
limited,  the  number  and  amount  shall  comply  with  the  requirements  of  this 
section,  the  matter  of  bankruptcy  may  proceed;  but  if,  at  the  expiration  of  such 
limited  time,  such  number  and  amount  shall  not  answer  the  requirements  of 
this  section  the  proceedings  shall  be  dismissed,  and  in  cases  hereafter  com- 
menced, with  costs.  And  if  such  person  shall  be  adjudged  a  bankrupt  the  as- 
signee may  recover  back  the  money  (m)  or  property  so  paid,  conveyed  sold 
assigned,  or  transferred  contrary  to  this  act:  Provided,  That  the  person  re- 
ceiving such  payment  or  conveyance  had  reasonable  cause  to  believe  that  the 
debtor  was  insolvent,  and  knew  that  a  fraud  on  this  act  was  intended-  and  such 


THE   BANKRUPTCY  ACT   OF    1867.  1817 

conveyance  had  reasonable  cause  to  believe  that  a  fraud  on  this  Act  was  in- 
tended, or  that  the  debtor  was  insolvent; 

And  such  creditor  shall  not  be  allowed  to  prove  his  debt  in  bankruptcy. 

§  40.  And  be  it  furtlicr  enacted,  That  upon  the  filing  of  the  petition  authorized 
by  the  next  preceding  section,  if  it  shall  appear  that  sufificient  grounds  exist 
therefor,'  the  court  shall  direct  the  entry  of  an  order  requiring  the  debtor  to 
appear  and  show  cause,  at  a  court  of  bankruptcy  to  be  holden  at  a  time  to  be 
specified  in  the  order,  not  less  than  five  days  from  the  service  thereof,  why  the 
prayer  of  the  petition  should  not  be  granted; 

And  may  also,  by  its  injunction,  restrain  the  debtor,  and  any  other  person, 
in  the  meantime,  from  making  any  transfer  or  disposition  of  any  of  the  debtor's 
property  not  excepted  by  this  Act  from  the  operation  thereof,  and  from  any 
interference  therewith; 

And  if  it  shall  appear  that  there  is  probable  cause  for  believeing  that  the 
debtor  is  about  to  leave  the  district,  or  to  remove  or  conceal  his  goods  and 
chattels  or  his  evidence  of  property,  or  make  any  fraudulent  conveyance  or  dis- 
position thereof,  the  court  may  issue  a  warrant  to  the  marshal  of  the  district, 
commanding  him  to  arrest  the  alleged  bankrupt  and  him  sefely  keep,  unless 
he  shall  give  bail  to  the  satisfaction  of  the  court  for  his  appearance  from  time 
to  time,  as  required  by  the  court,  until  the  decision  of  the  court  upon  the  peti- 
tion or  the  further  order  of  the  court,  and  forthwith  to  take  possession  provi- 
sionally of  all  the  property  and  effects  of  the  debtor,  and  safely  keep  the  same 
until  the  further  order  of  the  court. 

A  copy  of  the  petition  and  of  such  order  to  show  cause  shall  be  served  on 
such  debtor  by  delivering  the  same  to  him  personally,  or  leaving  the  same  at 
his  last  or  usual  place  of  abode; 

Or,  if  such  debtor  cannot  be  found,  or  his  place  of  residence  ascertained, 
service  shall  be  made  by  publication,  in  such  manner  as  the  judge  may  direct. 

No  further  proceedings,  unless  the  debtor  appear  and  consent  thereto,  shall 
be  had  until  proof  shall  have  been  given,  to  the  satisfaction  of  the  court,  of 
srch   service  or  publication; 

*And  if  such   proof  be  not  given   on   the   return   daj-  of  such   order,   the   pro- 


person,  if  a  creditor,  shall  not,  in  cases  of  actual  fraud  on  his  part,  be  allowed 
to  prove  for  more  than  a  moiety  of  his  debt;  and  this  limitation  on  the  proof 
of  debts  shall  apply  to  cases  of  voluntary  as  well  as  involuntary  bankruptcy. 
And  the  petition  of  creditors  under  this  section  may  be  sufificiently  verified  by 
the  oaths  of  the  first  five  signers  thereof,  if  so  many  there  be.  And  if  any  of 
said  first  five  signers  shall  not  reside  in  the  district  in  which  such  petition  is 
to  be  filed,  the  same  may  be  signed  and  verified  bj^  the  oath  or  oaths  of  the 
attorney  or  attorneys,  agent  or  agents,  of  such  signers.  And  in  computing  the 
number  of  creditors,  as  aforesaid,  who  shall  join  in  such  petition,  creditors 
v%^hose  respective  debts  do  not  exceed  two  hundred  and  fifty  dollars  shall  not 
be  reckoned.  But  if  there  be  no  creditors  whose  debts  exceed  said  sum  of 
two  hundred  and  fifty  dollars,  or  if  the  requisite  number  of  creditors  holding 
debts  exceeding  two  hundred  and  fifty  dollars  fail  to  sign  rhe  petition,  the 
creditors  having  debts  of  a  less  amount  shall  be  reckoned  for  the  purpose 
aforesaid.  So  amended  by  act  of  July  26,  1876,  ch,  234,  sec.  1,  19  Stat.  102. 
^Amended  by  act  of  22  June,  1874,  ch.  390,  sec.  13,  18  Stat.  182,  to  read: 
"And  if,  on  return  day  of  the  order  to  show  cause  as  aforesaid  the  court 
shall  be  satisfied  that  the  requirement  of  section  five  thousand  and  twenty-one 
(thirty-nine)  of  said  act,  as  to  the  number  and  amount  of  petitioning  creditors, 
has  been  complied  with,  or  if  within  the  time  provided  for  in  section  five 
thousand  and  twenty-one  (thirty-nine)  of  this  act,  creditors  sufificient  in  number 
and  amount  shall  sign  such  petition  so  as  to  make  a  total  of  one-fourth  in  num- 
ber of  the  creditors,  and  one-third  in  the  amount  of  the  provable  debts  against 
the  bankrupt,  as  provided  in  said  section,  the  court  shall  so  adjudge,  which 
judgment  shall  be  final;  otherwise  it  shall  dismiss  the  proceedings,  and,  in  cases 
hereafter  commenced,  with  costs." 


1818  REMINGTON  ON  BANKRUPTCY. 

ceedings   shall  be   adjourned  and  an   order  made   that  the   notice  be   forthwith 
so  served  or  published. 

§  41.  And  be  it  further  enacted,  That  on  such  return  daj',  or  adjourned  day, 
if  the  notice  has  been  duly  served  or  published,  or  shall  be  waived  by  the 
appearance  and  consent  of  the  debtor,  the  court  shall  proceed  summarily  to 
hear  the  allegations  of  the  petitioner  and  debtor,  and  may  adjourn  the  pro- 
ceedings from  time  to  time,  on  good  cause  shown,  and  shall,  if  the  debtor  on 
the  same  day  so  demanded  in  writing,  order  a  trial  by  jury  at  the  first  term  of 
the  court  at  which  a  jury  shall  be  in  attendance,  to  ascertain  the  fact  of  such 
alleged  bankruptcy; 

t  (Or,  at  the  election  of  the  debtor,  the  court  may,  in  its  discretion,  award 
a  venire  facias  to  the  marshal  of  the  district  returnable  within  ten  days  be- 
fore him,  for  the  trial  of  the  facts  set  forth  in  the  petition,  at  which  time  the 
trial  shall  be  had,  unless  adjourned  for  cause.) 

And  if,  upon  such  hearing  or  trial,  the  debtor  proves  to  the  satisfaction  of 
the  court  or  of  the  jury,  as  the  case  may  be,  that  the  facts  set  forth  in  the 
petition  are  not  true,  or  that  the  debtor  has  paid  and  satisfied  all  liens  upon 
hjs  property,  in  case  the  existence  of  such  liens  were  the  sole  ground  of  the 
proceeding,  the  proceedings  shall  be  dismissed  and  the  respondent  shall  re- 
cover his  costs. 

§  42.  And  be  it  furtlier  enacted,  That  if  the  facts  set  forth  in  the  petition  are 
found  to  be  true,  or  if  default  be  made  by  the  debtor  to  appear  pursuant  to 
the  order,  upon  due  proof  of  service  thereof  being  made,  the  court  shall  ad- 
judge the  debtor  to  be  a  bankrupt,  and,  as  such,  subject  to  the  provisions  of 
this  act,  and  shall  forthwith  issue  a  warrant  to  take  possession  of  the  estate  of 
the  debtor. 

The  warrant  shall  be  directed,  and  the  property  of  the  debtor  shall  be  taken 
thereon,  and  shall  be  assigned  and  distributed  in  the  same  manner  and  with 
similar'  proceedings  to  those  hereinbefore  (See  amendment.  Act  June  22 
1874),  providing  for  the  taking  possession,  assignment,  and  distribution  of 
the  property  of  the  debtor  upon  his  own  petition. 

The  order  of  adjudication  of  bankruptcy  shall  require  the  bankrupt  forthwith, 
or  within  such  number  of  days,  not  exceeding  five  after  the  date  of  the  order, 
or  notice  thereof,  as  shall  by  the  order  be  prescribed,  to  make  and  deliver,  or 
transmit  by  mail,  post-paid,  to  the  messenger,  a  schedule*  of  the  creditors- 
and  an  inventory  of  his  estate  in  the  form,  and  verified  in  the  manner  required 
of  a  petitioning  debtor  l)y  section  thirteen. 

If  the  debtor  has  failed  to  appear  in  person,  or  by  attorney,  a  certified  copy 
of  the  adjudication  shall  be  forthwith  served  on  him  by  delivery  or  publication 
in  the  manrfer  hereinbefore  provided  for  the  service  of  the  order  to  show 
cause; 

And  if  the  bankrupt  is  absent  or  cannot  be  found,  such  schedule  and  inven- 
tory shall  be  prepared  by  the  messenger  and  the  assignee  from  the  best  infor- 
mation they  can  obtain. 

If  the  petitioning  creditor  shall  not  appear  and  proceed  on  the  return  day,  or 
adjourned  day,  the  court  may,  upon  the  petition  of  any  other  creditor  to  the 
required  amount,  proceed  to  adjudicate  on  such  petition,  without  requiring  a 
new  service  or  publication  of  notice  to  the  debtor. 

§  43.  And  be  it  further  enacted,  That  if,  at  the  first  meeting  of  creditors,  or  at 
any  meeting  of  creditors  to  be  specially  called  for  that  purpose,  and  of  which 
previous  notice  shall  have  been  given  for  such  length  of  time  and  in  such  man- 


tSo  amended  by  act  of  22  June,  1874,  ch.  390,  sec.  14,  18  Stat.  182. 
(*Words,  "and  valuation"  added.  Act  of  June  22,  1874.) 


the;  bankruptcy  act  of  1867.  1819 

ner  as  the  court  may  direct,  three-fourths  in  value  of  the  creditors  whose 
claims  have  been  proved  shall  determine  and  resolve  that  it  is  for  the  interest 
of  the  general  body  of  the  creditors  that  the  estate  of  the  bankrupt  should  be 
wound  up  and  settled,  and  distribution  made  among  the  creditors  by  trustees, 
under  the  inspection  and  direction  of  a  committee  of  the  creditors,  it  shall  be 
lawful  for  the  creditors  to  certify  and  report  such  resolution  to  the  court, 
and  to  nominate  one  or  more  trustees  to  take,  and  hold,  and  distribute  the 
estate,  under  the  direction  of  such  committee. 

If  it  shall  appear  to  the  court,  after  hearing  the  bankrupt  and  such  creditors 
as  may  desire  to  be  heard,  that  the  resolution  was  duly  passed  and  that  the 
interests  of  the  creditors  will  be  promoted  thereby,  it  shall  confirm  the  same; 

And  upon  the  execution  and  filing,  by  or  on  behalf  of  three-fourths  in  value 
of  all  the  creditors  whose  claims  have  been  proved,  of  a  consent  that  the  estate 
of  the  bankrupt  be  wound  up  and  settled  by  said  trustees,  according  to  the 
terms  of  such  resolution,  the  bankrupt,  or  his  assignee  in  bankruptcy,  if  ap- 
pointed, as  the  case  may  be,  shall,  under  the  direction  of  the  court,  and  under 
rath,  convey,  transfer,  and  deliver  all  the  property  and  estate  of  the  bankrupt 
to  the  said  trustee  or  trustees,  who  shall,  upon  such  conveyance  and  transfer, 
have  and  hold  the  same  in  the  same  manner,  and  with  the  same  powers  and 
rights,  in  all  respects,  as  the  bankrupt  would  have  had  or  held  the  same  if  no 
proceedings  in  bankruptcy  had  been  taken,  or  as  the  assignee  in  bankruptcy 
would  have  done  had  such  resolution  not  been  passed; 

And  such  consent  and  the  proceedings  thereunder  shall  be  as  binding  in  all 
respects  on  any  creditor,  whose  debt  is  provable,  who  has  not  signed  the  same, 
as  if  he  had  signed  it,  and  on  any  creditor  whose  debt,  if  provable,  is  not 
proved,  as  if  he  had  proved  it; 

And  the  court,  by  order,  shall  direct  all  acts  and  things  needful  to  be  done  to 
carry  into  effect  such  resolution  of  the  creditors;  and  the  said  trustees  shall  pro- 
ceed to  wind  up  and  settle  the  estate  under  the  direction  and  inspection  of 
such  committee  of  the  creditors,  for  the  equal  benefit  of  all  such  creditors; 

And  the  winding  up  and  settlement  of  any  estate  under  the  provisions  of 
this  section  shall  be  deemed  to  be  proceedings  in  bankruptcy  under  this  Act; 
and  the  said  trustees  shall  have  all  the  rights  and  powers  of  assignees  in  bank- 
ruptcy. 

The  court,  on  the  application  of  such  trustees,  shall  have  power  to  sum- 
mon and  examine,  on  oath  or  otherwise,  the  bankrupt  and  any  creditor,  and 
any  person  indebted  to  the  estate,  or  known  or  suspected  of  having  any  of 
the  estate  in  his  possession,  or  any  other  person  whose  examination  may  be 
material  or  necessary  to  aid  the  trustees  in  the  execution  of  their  trust,  and  to 
compel  the  attendance  of  such  persons  and  the  production  of  books  and  pa- 
pers, in  the  same  manner  as  in  other  proceedings  in  bankruptcy  under  this 
act; 

And  the  bankrupt  shall  have  the  like  right  to  apply  for  and  obtain  a  dis- 
charge after  the  passage  of  such  resolution  and  the  appointment  of  such  trus- 
tees as  if  such  resolution  had  not  been  passed,  and  as  if  all  the  proceedings 
had  continued  in  the  manner  provided  in  the  preceding  sections  of  this  Act. 

If  the  resolution  shall  not  be  duly  reported,  or  the  consent  of  the  creditors 
shall  not  be  duly  filed,  or  if,  upon  its  filing,  the  court  shall  not  think  fit  to 
approve  thereof,  the  bankruptcy  shall  proceed  as  though  no  resolution  had 
been  passed,  and  the  court  may  make  all  necessary  orders  for  resuming  the 
proceedings; 

And  .the  period  of  time  which  shall  have  elapsed  between  the  date  of  the 
resolution  and  the  date  of  the  order  for  resuming  proceedings  shall  not  be 
reckoned  in  calculating  periods  of  time  prescribed  by  this  Act. 

(R.  S.,  sec.  5103  a  (22  June,  1874,  ch.  390,  sec.  17,  18  Stat.  183).— That  in  all 


1820  REMINGTON  ON  BANKRUPTCY. 

cases  of  bankruptcy  now  pending,  or  to  be  hereafter  pending,  by  or  against 
any  person,  whether  an  adjudication  in  bankruptcy  shall  have  been  had  or  not, 
the  creditors  of  such  alleged  bankrupt  may,  at  a  meeting  called  under  the  di- 
rection of  the  court,  and  upon  not  less  than  ten  days'  notice  to  each  known 
creditor,  of  the  time,  place,  and  purpose  of  such  meeting,  such  notice  to  be 
personal  or  otherwise,  as  the  court  may  direct,  resolve  that  a  composition 
proposed  by  the  debtor  shall  be  accepted  in  satisfaction  of  the  debts  due  to 
them  from  the  debtor.  And  such  resolution  shall,  to  be  operative,  have  been 
passed  by  a  majority  in  number  and  three-fourths  in  value  of  the  creditors  of 
the  debtor  assembled  at  such  meeting  either  in  person  or  by  proxy,  and  shall 
be  confirmed  by  the  signatures  thereto  of  the  debtor  and  two-thirds  in  num- 
ber and  one-hqlf  in  value  of  all  the  creditors  of  the  debtor.  And  in  calculating 
a  majority  for  the  purpose  of  a  composition  under  this  section,  creditors  whose 
debts  amount  to  the  sums  not  exceeding  fifty  dollars  shall  be  reckoned  in  the 
majority  in  value,  but  not  in  the  majority  in  number;  and  the  value  of  the  debts 
of  secured  creditors  above  the  amount  of  such  security,  to  be  determined  by 
the  court,  shall,  as  nearly  as  circumstances  admit,  be  estimated  in  the  same 
way.  And  creditors  whose  debts  are  fully  secured  shall  not  be  entitled  to 
vote  upon  or  assign  such  resolution  without  first  relinquishing  such  security 
for  the  benefit  of  the  estate. 

The  debtor,  unless  prevented  by  sickness  or  other  cause  satisfactory  to  such 
meeting,  shall  be  present  at  the  same,  and  shall  answer  any  inquiries  made  of 
him;  and  he,  or,  if  he  is  so  prevented  from  being  at  such  meeting,  some  one  in 
his  behalf,  shall  produce  to  the  meeting  a  statement  showing  the  whole  value 
of  his  assets  and  debts,  and  the  names  and  addresses  of  the  creditors  to  whom 
such  debts  respectively  are  due. 

Such  resolution,  together  with  the  statement  of  the  debtor  as  to  his  assets  and 
debts,  shall  be  presented  to  the  court;  and  the  court  shall,  upon  notice  to  all 
the  creditors  of  the  debtor  of  not  less  than  five  days,  and  upon  hearing,  inquire 
whether  such  resolution  has  been  passed  in  the  manner  directed  by  this 
section;  and  if  satisfied  that  it  has  been  so  passed,  it  shall,  subject  to  the  pro- 
visions hereinafter  contained,  and  upon  being  satisfied  that  the  same  is  for 
the  best  interest  of  all  concerned,  cause  such  resolution  to  be  recorded  and 
statement  of  assets  and  debts  to  be  filed;  and  until  such  record  and  filing 
shall  have  taken  place,  such  resolution  shall  be  of  no  validity.  And  any  creditor 
of  the  debtor  may  inspect  such  record  and  statement  at  all  reasonable  times. 

The  creditors  may,  by  a  resolution  passed  in  the  matter  and  under  the  cir- 
cumstances aforesaid,  add  to  or  vary  the  provisions  of,  any  composition  pre- 
viously accepted  by  them,  without  prejudice  to  any  person  taking  interest  un- 
der such  provisions  who  do  not  assent  to  such  addition  or  variation.  And  any 
such  additional  resolution  shall  be  presented  to  the  court  in  the  same  manner 
and  proceeded  with  in  the  same  way  and  with  the  same  consequences  as  the 
rr'solution  by  which  the  composition  was  accepted  in  the  first  instance.  The 
provisions  of  a  composition  accepted  by  such  resolution  in  pursuance  of  this 
section  shall  be  binding  on  all  the  creditors  whose  names  and  addresses  and 
the  amounts  of  the  debts  due  to  whom  are  shown  in  the  statement  of  the 
debtor  produced  at  the  meeting  at  which  the  resolution  shall  have  been  passed, 
but  shall  not  affect  or  prejudice  the  rights  of  any  other  creditors. 

Where  a  debt  arises  on  a  bill  of  exchange  of  promissory  note,  if  the  debtor 
shall  be  ignorant  of  the  holder  of  any  such  bill  of  exchange  or  promissory  note 
he  shall  be  required  to  state  the  amount  of  such  bill  or  note,  the  date  on 
which  it  falls  due,  the  name  of  the  acceptor  and  of  the  person  to  whom  it  is 
payable,  and  any  other  particulars  within  his  knowledge  respecting  the  same- 
and  the  insertion  of  such  particulars  shall  be  deemed  a  sufficient  description 
by  the  debtor  m  respect  to  such  debt. 


THE  BANKRUPTCY  ACT   OF    1867.  1821 

Any  mistake  made  inadvertently  by  a  debtor  in  the  statement  of  his  debts 
may  be  corrected  upon  reasonable  notice  and  with  the  consent  of  a  general 
meeting  of  his   creditors. 

Every  such  composition  shall,  subject  to  priorities  declared  in  said  act,  pro- 
vide for  a  pro  rata  payment  or  satisfaction  in  money,  to  the  creditors  of  such 
debtor  in  proportion  to  the  amount  of  their  unsecured  debts,  or  their  debts 
in  respect  to  which  any  such  security  shall  have  been  duly  surrendered  and 
given  up. 

The  provisions  of  any  composition  made  in  pursuance  of  this  section  may  be 
enforced  by  the  court,  on  motion  made  in  a  summary  manner  by  any  person 
interested,  and  on  reasonable  notice;  and  any  disobedience  of  the  order  of  the 
court  made  on  such  motion  shall  be  deemed  to  be  a  contempt  of  court.  Rules 
and  regulations  of  court  may  be  made  in  relation  to  proceedings  of  composi- 
tion herein  provided  for  in  the  same  manner  and  to  the  same  extent  as  now 
provided  by  law  in  relation  to  proceedings  in  bankruptcy. 

If  it  shall  at  any  time  appear  to  the  court,  on  notice,  satisfactory  evidence, 
and  hearing,  that  a  composition  under  this  section  cannot,  in  consequence  of 
legal  difficulties,  or  for  any  sufficient  cause,  proceed  without  injustice  or  undue 
delay  to  the  creditors  or  to  the  debtor,  the  court  may  refuse  to  accept  and 
confirm  such  composition,  or  may  set  the  same  aside;  and,  in  either  case,  the 
debtor  shall  be  proceeded  with  as  a  bankrupt  in  conformity  with  the  provisions 
of  law,  and  proceedings  may  be  had  accordingly;  and  the  time  during  which 
such  composition  shall  have  been  in  force  shall  not,  in  such  case  be  computed 
iu  calculating  periods  of  time  prescribed  by  said  act.) 

PENALTIES  AGAINST  BANKRUPTS. 

§  44.  And  be  it  further  enacted,  That  from  and  after  the  passage  of  this  act, 
if  any  debtor  or  bankrupt  shall,  after  the  commencement  of  proceedings  in 
bankruptcy, — 

Secrete   or   conceal   anj^   property  belonging   to   his    estate; 

Or  part  with,  conceal,  or  destroy,  alter,  mutilate,  or  falsify,  or  cause  to  be 
concealed,  destroyed,  altered,  mutilated,  or  falsefied,  any  book,  deed,  document, 
or  writing  relating  thereto,  or  remove,  or  cause  to  be  removed,  the  same,  or 
any  part  thereof,  out  of  the  district,  or  otherwise  dispose  of  any  part  thereof, 
with  intent  to  prevent  it  from  coming  into  the  possession  of  the  assignee  in 
bankruptcy,  or  to  hinder,  impede,  or  delay  either  of  them  in  recovering  or  re- 
ceiving the   same; 

Or  make  any  payment,  gift,  sale,  assignment,  transfer,  or  conveyance  or  any 
property  belonging  to  his  estate  with  the  like  intent; 

Or  spend  any  part  thereof  in  gaming; 

Or  shall,  with  intent  to  defraud,  wilfully  and  fraudulently  conceal  from  his 
assignee,  or  omit  from  his  schedule,  any  property  or  effects  whatsoever. 

Or  if,  in  case  of  any  person  having,  to  his  knowledge  or  belief,  proved  a  false 
or  fictitious  debt  against  his  estate,  he  shall  fail  to  disclose  the  same  to  his 
assignees  within  one  month  after  coming  to  the  knowledge  or  belief  thereof; 

Or  shall  attempt  to  account  for  any  of  his  property  by  fictitious  losses  or 
expenses; 

Or  shall  within  three  months  before  the  commencement  of  proceedings  in 
bankruptcy,  under  the  false  color  and  pretense  of  carrying  on  business  and 
dealing  in  the  ordinary  caurse  of  trade,  obtain  on  credit  from  any  person  any 
goods  or  chattels  with  intent  to  defraud; 

Or  shall  with  intent  to  defraud  his  creditors,  within  three  months  next  be- 
fore  the   commencement  of  proceedings   in   bankruptcy,   pawn,   pledge,   or   dis- 


1822  ,re;mington  on  bankruptcy. 

pose  of,  otherwise  than  by  bona  fide  transactions  in  the  ordinary  way  of  his 
trade,  any  of  his  goods  or  chattels  which  have  been  obtained  on  credit  and  re- 
main unpaid  for; 

He  shall  be  deemed  guilty  of  a  misdemeanor,  and,  upon  conviction  thereof  in 
any  court  of  the  United  States,  shall  be  punished  by  imprisonment,  with  or 
without  hard  labor,  for  a  term  not  exceeding  three  years. 

§  45.  And  be  it  further  enacted,  That  if  any  judge,  register,  clerk,  marshal, 
messenger,  assignee,  or  any  other  officer  of  the  several  courts  of  bankruptcy 
shall,  for  anything  done  or  pretended  to  be  done  under  this  Act,  or  under  color 
of  doing  anything  thereunder,  willfully  demand  or  take,  or  appoint  or  allow 
any  person  whatever  to  take  for  him  or  on  his  account,  or  for  or  on  account 
of  any  other  person,  or  in  trust  for  him  or  for  any  other  person,  any  fee,  emolu- 
ment, gratuity,  sum  of  money,  or  anything  of  value  whatever,  other  than  is 
allowed  by  this  act,  or  which  shall  be  allowed  under  the  authority  thereof,  such 
persons,  when  convicted  thereof,  shall  forfeit  any  pay  the  sum  of  not  less  than 
three  hundred  dollars,  and  not  exceeding  five  hundred  dollars,  and  be  im- 
prisoned not  exceeding  three  years. 

§  46.  And  be  it  further  enacted,  That  if  any  person  shall  forge  the  signature  of 
a  judge,  register,  or  other  officer  of  the  court,  or  knowingly  concur  in  using  an}' 
such  forged  or  counterfeit  signature  or  seal  for  the  purpose  of  authenticating 
any   proceeding  or   document. 

Or  shall  tender  in  evidence  any  such  proceeding  or  document  with  a  false  or 
counterfeit  signature  of  any  such  judge,  register,  or  other  officer,  or  a  false  or 
counterfeit  seal  of  the  court,  subscribed  or  attached  thereto,  knowing  such 
signature  or  seal  to  be  false  or  counterfeit,  any  such  person  shall  be  guilty  of 
felony,  and  upon  conviction  thereof  shall  be  liable  to  a  fine  of  not  less  than  five 
hundred  dollars,  and  not  more  than  five  thousand  dollars,  and  to  be  imprisoned 
not  exceeding  five  j^ears,  at  the  discretion  of  the  court. 

FEES  AND  COSTS. 

§  47.  And  be  it  further  enacted.  That  in  each  case  there  shall  be  allowed  and 
paid,  in  addition  to  the  fees  of  the  clerk  of  the  court  as  now  established 
by  law,  or  as  may  be  established  by  general  order,  under  the  provisions  of  this 
Act,  for  fees  in  bankruptcy,  the  following  fees,  which  shall  be  applied  to  the 
payment  for  the  services  of  the  register: 

For  issuing  every  warrant,  two  dollars. 

For  each  day  in  which  a  meeting  is  held,  three  dollars. 

For  each  order  for  a  dividend,  three  dollars. 

For  every  order  substituting  an  arrangement  by  trust  deed  for  bankruptcy, 
two  dollars. 

For  every  bond  with  sureties,  two  dollars. 

For  every  application  for  any  meeting  in  any  matter  under  this  Act,  one 
dollar. 

For  every  day's  services  while  actually  employed  under  a  special  order  of  the 
courj:,  a  sum  not  exceeding  five  dollars,  to  be  allowed  by  the  court. 

For  taking  depositions,  the  fees  now  allowed  by  law. 

For  every  discharge  where  there  is  no  opposition,  two  dollars. 

Such  fees  shall  have  priority  of  payment  over  all  other  claims  out  of  the 
estate,  and  before  a  warrant  issues,  the  petitioner  shall  deposit  with  the  senior 
register  of  the  court,  or  with  the  clerk,  to  be  delivered  to  the  register,  fifty 
dollars  as  security  for  the  payment  thereof;  and  if  there  are  not  sufficient  as- 
sets for  the  payment  of  the  fees,  the  person  upon  whose  petition  the  warrant 
is  issued  shall  pay  the  same,  and  the  court  may  issue  an  execution  against  him 
tr-<  compel  payment  to  the  register. 


the:  bankruptcy  act  of  1867.  1823 

Before  any  dividend  is  ordered  the  assignee  shall  pay  out  of  the  estate  to 
the  messenger  the  following  fees,  and  no  more: 

First. — For  service  of  warrant,  two  dollars. 

Second. — For  all  necessary  travel,  at  the  rate  of  five  cents  a  mile,  each  way. 

Third. — For  each   written   note   to  creditor  named  in  the  schedule,  ten  cents. 

Fourth. — For  custody  of  property,  publication  of  notices,  and  other  services, 
his  actual  and  necessary  expenses  upon  returning  the  same  in  specific  items, 
and  making  oath  that  they  had  been  actually  incurred  and  paid  by  him,  and 
are  just  and  reasonable-  the  same  to  be  taxed  or  adjusted  by  the  court,  and 
the  oath  of  the  messenger  shall  not  be  conclusive  as  to  the  necessity  of  said 
expenses. 

For  cause  shown,  and  upon  hearing  thereon,  such  further  allowance  may 
be  made  as  the  court,  in  its  discretion,  may  determine. 

The  enumeration  of  the  foregoing  fees  shall  not  prevent  the  judges,  who 
shall  frame  general  rules  and  orders  in  accordance  with  the  provisions  of  sec- 
tion ten,  from  prescribing  a  tariff  of  fees  for  all  other  services  of  the  officers 
of  courts  of  bankruptcy,  or  from  reducing  the  fees  prescribed  in  this  sectio3i 
in  classes  of  cases  to  be  named  in  their  rules  and  orders. 

(R.  S.,  sec.  5127  a  (22  June,  1874,  ch.  390,  sec.  18,  18  Stat.  184)— That  from 
and  after  the  passage  of  this  act,  the  fees,  commissions,  charges,  and  allow- 
ances, excepting  actual  and  necessary  disbursements,  of,  and  to  be  made  by  the 
officers,  agents,  marshals,  messengers,  assignees,  and  registers  is  cases  of 
bankruptcy,  shall  be  reduced  to  one-half  of  the  fees,  commissions,  charges,  and 
allowances  heretofore  provided  for  or  made  in  like  cases:  Provided,  That  the 
preceding  provision  shall  be  and  remain  in  force  until  the  justices  of  the 
Supreme  Court  of  the  United  States  shall  make  and  promulgate  new  rules  and 
regulations  in  respect  to  the  matters  aforesaid,  under  the  powers  conferred 
upon  them  by  sections  four  thousand  nine  hundred  and  ninety  (ten)  and  five 
thousand  one  hundred  and  twenty-seven  (forty-seven)  of  said  act,  and  no 
longer,  which  duties  they  shall  perform  as  soon  as  may  be. 

§  5127  b  (22  June,  1874,  ch.  390,  sec.  19,  18  Stat.  184.)— That  it  shall  be  the 
duty  of  the  marshal  of  each  district,  in  the  month  of  July  of  each  year,  to  re- 
port to  the  clerk  of  the  district  court  of  such  district,  in  a  tabular  form,  to  be 
prescribed  by  the  justices  of  the  Supreme  Court  of  the  United  States,  as  well  as 
such  other  or  further  information  as  may  be  required  by  said  justices. 

First,  the  number  of  cases  in  bankruptcy  in  which  the  warrant  prescribed  in 
section  five  thousand  and  nineteen  (eleven)  of  said  act  has  come  to  his  hands 
during  the  year  ending  June  thirtieth,  preceding; 

Secondly,  how  many  such  warrants  were  returned,  with  the  fees,  costs, 
expenses,  and  emoluments  thereof,  respectively  and  separately; 

Thirdly,  the  total  amount  of  all  other  fees,  costs,  expenses,  and  emoluments, 
respectively  and  separately,  earned  or  received  by  him  during  such  year,  from 
or  in  respect  of  any  matter  in  bankruptcy; 

Fourthly,  a  summarized  statement  of  such  fees,  costs,  and  emoluments,  ex- 
clusive of  actual  disbursements  in  bankruptcy,  received  or  earned  for  such 
year; 

Fifthly,  a  summarized  statement  of  all  actual  disbursements  in  such  cases 
for  such  year. 

And  in  like  manner  every  register  shall,  in  the  same  month,  and  for  the  same 
year,  make  a  report  to  such  clerk;  of 

First,  the  number  of  voluntary  cases  in  bankruptcy  coming  before  him  dur- 
ing said  year; 

Secondly,  the  amount  of  assets  and  liabilities,  as  nearly  as  may  be,  of  the 
bankrupt; 


1824  REMINGTON  ON  BANKRUPTCY. 

Thirdly,  the  amount  and  rate  per  centum  of  all  dividends  declared; 

Fourthly,  the  disposition  of  all  such  cases; 

Fifthly,  the  number  of  compulsory  cases  in  bankruptcy  coming  before  him, 
in  the  same  way; 

Sixthly,  the  amount  of  assets  and  liabilities,  as  nearly  as  may  be,  of  such 
bankrupts; 

Seventhl3%  the  disposition  of  all  such  cases; 

Eighthly,  the  amounts  and  rate  per  centum  of  all  dividends  declared  in  such 
cases; 

Ninthly,  the  total  amount  of  fees,  charges,  costs,  and  emoluments  of  every 
sort,  received  or  earned  by  such  register  during  said  year,  in  each  class  of  cases 
above  stated. 

And  in  like  manner  every  assignee  shall,  during  said  month  make  like  return 
lo  :>uch  clerk;  of. 

First,  the  number  of  voluntary  and  compulsory  cases,  respectively  and  sepa- 
rately, in  his  charge  during  said  year; 

Secondly,  the  amount  of  assets  and  liabilities  therein,  respectively  and  sepa- 
rately; 

Thirdly,  the  total  receipts  and  disbursements  therein,  respectively  and 
separately; 

Fourthly,  the  amount  of  dividends  paid  or  declared,  and  the  rate  per  centum 
thereof,  in  each  class  respectively  and  separately; 

Fifthly,  the  total  amount  of  all  his  fees,  charges  and  emoluments  of  every 
kind  therein,  earned  or  received. 

Sixthly,  the  total  amount  of  expenses  incurred  by  him  for  legal  proceedings 
and  counsel  fees; 

Seventhly,  the  disposition  of  the  cases  respectively; 

Eightly,  a   summarized   statement   of  both   classes  as   aforesaid; 

And  in  like  manner,  the  clerk  of  said  court,  in  the  month  of  August  in  each 
year,  shall  make  up  a  statement  for  such  year,  ending  June  thirtieth,  of- 

First,  all  classes  in  bankruptcy  pending  at  the  beginning  of  the  said  year; 

Secondly,  all  of  such  cases  disposed  of; 

Thirdly,  all  dividends  declared  therein; 

Fourthly,  the  number  of  reports  made  from  each  assignee  therein; 

Fifthly,  the  disposition  of  all  such  cases; 

Sixthly,  the  number  of  assignees'  accounts  filed  and  settled; 

Seventhly,  whether  any  marshal,  register,  or  assignee  has  failed  to  make 
and  file  with  such  clerk  the  reports  by  this  act  required,  and  if  any  have  failed 
to  make  such  report,  their  respective  names  and  and  residences. 

And  such  clerk  shall  report  in  respect  of  all  cases  begun  during  said  year. 

And  he  shall  make  a  classified  statement,  in  tabular  form,  of  all  his  fees, 
charges,  costs,  and  emoluments,  respectively,  earned  or  accrued  during  said 
year,  giving  each  head  under  which  the  same  accrued,  and  also  the  sum  of  all 
moneys  paid  into  and  disbursed  out  of  court  in  bankruptcy,  and  the  balance  in 
hand  or  on  deposit. 

And  all  the  statements  and  reports  herein  required  shall  be  under  oath,  and 
signed  by  the  persons   respectively  making  the   same. 

And  said  clerk  shall  in  said  month  of  August,  transmit  every  such  statement 
and  report  so  filed  with  him,  together  with  his  own  statement  and  report  as 
aforesaid,  to  the  attorney-general  of  the  United  States. 

Any  person  who  shall  violate  the  provisions  of  this  section  shall  on  motion 
made,  under  the  direction  of  the  attorney-general,  be  by  the  district  court  dis- 
missed from  his  office,  and  shall  be  deemed  guilty  of  a  misdemeanor,  and,  on 
conviction  thereof,  be  punished  by  a  fine  of  not  more  than  five  hundred  dollars, 
or  by  imprisonment  not  exceeding  one  year.) 


THE   BANKRUPTCY  ACT   OF    1867.  1825 

OF  MEANING  OF  TERMS  AND  COMPUTATION  OF  TIME. 

§  48.  And  be  it  further  enacted,  That  the  word  "assignee"  and  the  word 
"creditor"  shall  include  the  plural  also;  and  the  word  "messenger"  shall  include 
his  assistant  or  assistants,  except  in  the  provision  for  the  fees  of  that  officer. 

The  word  "marshal"  shall  include  the  marshal's  deputies;  the  word  "person" 
shall  also  include  "corporation;"  and  the  word  "oath"  shall  include  "affirma- 
tion." 

And  in  all  cases  in  which  any  particular  number  of  days  is  prescribed  by  this 
Act,  or  shall  be  mentioned  in  any  rule  or  order  of  court,  or  general  order  which 
.shall  at  any  time  be  made  under  this  Act,  for  the  doing  of  any  Act,  or  for  anv- 
other  purpose,  the  same  shall  be  reckoned,  in  the  absence  of  any  expression  to 
the  contrary,  exclusive  of  the  first  and  inclusive  of  the  last  day,  unless  the  last 
day  shall  fall  on  a  Sunday,  Christmas  day,  or  on  any  day  appointed  by  the 
President  of  the  United  States  as  a  day  of  public  fast  or  thanksgiving,  or  on 
the  Fouth  of  July,  in  which  case  the  time  shall  be  reckoned  exclusive  of  that 
day  also. 

§  49.  And  be  it  further  enacted,  That  all  the  jurisdiction,  power,  and  authority 
conferred  upon  and  vested  in  the  District  Court  of  the  United  States  by  this 
act  in  cases  in  bankruptc}'  are  hereby  conferred  upon  and  vested  in  the  Su- 
preme Court  of  the  District  of  Columbia. 

•  And  in  and  upon  the  Supreme  Courts  of  the  several  Territories  of  tlit; 
United  States,  when  the  bankrupt  resides  in  the  said  District  of  Columbia  or 
in  either  of  the  said  Territories. 

And  in  those  judicial  districts  which  are  not  within  any  organized  circuit 
of  the  United  States,  the  power  and  jurisdiction  of  a  Circuit  Court  in  bank- 
ruptcy may  be  exercised  by  the  district  judge. 

§  50.  And  be  it  further  enacted.  That  this  act  shall  commence  and  take  effect, 
as  to  the  appointment  of  the  officers  created  hereby  and  the  promulgation  of 
rules  and  general  orders,  from  and  after  the  date  of  its  approval:  Provided, 
That  no  peti-tion  or  other  proceeding  under  this  act  shall  be  filed,  received,  or 
commenced  before  the  first  day  of  June,  Anno  Domini  eighteen  hundred  and 
S'xty-seven. 

2  Rem  B— 40 


THE  BANKRUPTCY  ACT  OF  1841. 

An   Act    to    establish    a    uniform    System    of   Bankruptcy    throughout    the    United 

States. 

(Passed  August  19th,  18-41,  repealed  March  3rd,  1843.) 

Section  1.    Be  it  enacted  by  the  Senate  and  House  of  Representatives  of    the 
United  States  of  America  in  Congress  assembled.     That  there  be,  and  hereby 
is,  established  throughout  the  United  States  a  uniform  system  of  bankruptcy, 
as    follows:    All   persons    whatsoever,    residing   in   any   State,    District    or   Ter- 
ritory of  the  United  States,  owing  debts  which  shall  not  have  been  created  in 
consequence  of  a  defalcation  as  a  public  officer;  or  as  executor,  administrator, 
guardian  or  trustee,  or  while  acting  in  any  other  fiduciary  capacity,  who  shall, 
by  petition,  setting  forth  to  the  best  of  his  knowledge  and  belief  a  list  of  his 
or  their  creditors,  their  respective  places  of  residence,  and  the  amount  due  to 
each,  together  with  an  accurate  inventory  of  his  or  their  property,  rights  and 
credits,  of  every  name,  kind  and  description,  and  the  location  and  situation  of 
each   and  every  parcel   and   portion   thereof,  verified  by  oath,   or,   if  conscien- 
tiously   scrupulous    of    taking    an    oath,    by    solemn    affirmation,    apply    to    the 
proper  court,  as  hereinafter  mentioned,  for  the  benefit  of  this  act,  and  therein 
declare  themselves  to  be  unable  to  meet  their  debts  and  engagments,  and  shall 
be  deemed  bankrupts  within  the  purview  of  this  act,  and  may  be  so  declared 
accordingly  by  a  decree  of  such  court.     All  persons,  being  merchants,  or  using 
the  trade  of  merchandise,  all  retailers  of  merchandise,  and  all  bankers,  factors, 
brokers,  underwriters  or   marine   insurers,   owing  debts   to   the  amount  of  not 
less  than  two  thousand  dollars,  shall  be  liable  to  become  bankrupts  within  the 
true  intent  and  meaning  of  this  act,  and  may,  upon  the  petition  of  one  or  more 
of  their  creditors,  to  whom  they  owe  debts  amounting  in  the  whole  or  not  less 
than  five  hundred  dollars,  to  the  appropriate  court,  be  so  declared  accordingly, 
in   the   following   cases,   to   wit:   whenever   such   person,  being  a   merchant,   or 
actually  using  the   trade   of  merchandise,  or  being  a   retailer  of   merchandise. 
or  being  a  banker,  factor,  broker,  underwriter,  or  marine  insurer,  shall  depart 
from  the  State,  District  or  Territory,  of  which  he  is  an  inhabitant,  with  intent 
to  defraud  his   creditors;  or  shall  con^ceal  himself  to  avoid  being  arrested,  or 
shall  willingly  and   fraudulently  procure   himself  to   be   arrested,  or  his   goods 
and    chattels,    lands    or    tenements,    to    be    attached,    distrained,    sequestered, 
or  taken  in  execution;  or  shall  remove  his  goods,  chattels  and  effects,  or  con- 
ceal   them    to    prevent    their    being    levied   upon    or    taken   in    execution,    or   by 
other   process;    or   make    any   fraudulent   conveyance,   assignment,    sale,   gift   or 
other  transfer   of  his   lands,   tenements,   goods   or   chattels,   credits   or   evidence 
of  debt:   Provided,  however.  That  any  person   so  declared  a  bankrupt,   at  the 
instance  of  a  creditor,  may,  at  his  election,  by  petition  to  such  court  within  ten 
days  after  its  decree,  be   entitled  to  a  trial  by  jury  before   such  court,  to  as- 
certain the  fact  of  such  bankruptcy;  or  if  such  person  shall  reside  at  a  great 
distance   from   the   place   of  holding   such   court,   the   said  judge,  in   his   discre- 
tion,  may   direct   such   trial   by  jury  to   be   had  in  the   county   of  such   person's 
residence,  in  such  manner  and  under  such  directions  as  the  court  may  prescribe 
and  give;  and  all  such  decrees  passed  by  such  court,  and  not  so  re-examined, 
shall  be  deemed  final  and  conclusive  as  to  the  subject-matter  thereof. 

Sec.  2.  And  be  it  further  enacted,  that  all  future  payments,  securities,  con- 
veyances, or  transfers  of  property,  or  agreement  made  or  given  by  any  bank- 
rupt in  contemplation  of  bankruptcy,  and  for  the  purpose  of  giving  any  cred- 


•    THE  BAXKRUPTCY  ACT  OF    1841.  1827 

itor,  indorser,  surety,  or  other  person,  any  preference  or  priority  over  the 
general  creditors  of  such  bankrupts;  and  all  other  payments,  securities,  con- 
veyances, or  transfers  of  property,  or  agreements  made  or  given  by  such 
bankrupt  in  contemplation  of  bankruptcy,  to  any  person  or  persons  whatever, 
not  being  a  bona  fide  creditor  or  purchaser,  for  a  valuable  consideration,  with- 
out notice,  shall  be  deemed  utterly  void,  and  a  fraud  upon  this  act;  and  the 
assignee  under  the  bankruptcy  shall  be  entitled  to  claim,  sue  for,  recover,  and 
receive,  the  same  as  part  of  the  assets  of  the  bankruptcy;  and  the  person  mak- 
ing such  unlawful  preferences  and  payments  shall  receive  no  discharge  under 
the  provisions  of  this  act;  Provided,  That  all  dealings  and  transactions  by  and 
and  with  any  bankrupt,  bona  fide  made  and  entered  into  more  than  two 
months  before  the  petition  filed  against  him  or  by  him,  shall  not  be  invalidated 
or  effected  by  this  act:  Provided,  That  the  other  party  to  any  such  dealings 
cr  transactions  had  no  notice  of  a  prior  act  of  bankruptcy,  or  of  the  intention 
oi  the  bankrupt  to  take  the  benefit  of  this  act.  And  in  case  it  shall  be  made 
to  appear  to  the  court,  in  the  course  of  the  proceedings  in  bankruptcy,  that 
the  bankrupt,  his  application  being  voluntary,  has,  subsequent  to  the  first 
day  of  January  last,  or  at  any  other  time,  in  contemplation  of  the  passage  of  a 
bankrupt  law,  by  assignments  or  otherwise,  given  or  secured  any  preference  to 
one  creditor  over  another,  he  shall  not  receive  a  discharge  unless  the  same  be 
assented  to  by  a  majority  in  interest  of  those  of  his  creditors  who  have  not 
been  so  preferred:  And  provided  also.  That  nothing  in  this  act  contained 
shall  be  construed  to  annul,  destroy  or  impair,  any  lawful  rights  of  married 
v.-omen,  or  minors,  or  any  liens,  mortgages,  or  other  securities,  on  property, 
real  or  personal,  which  may  be  valid  by  the  laws  of  the  States  respectively, 
and  which  are  not  inconsistent  with  the  provisions  of  the  second  and  fifth 
sections  of  this  act. 

Sec.  3.  And  be  it  further  enacted,  That  all  the  property,  and  rights  of  prop- 
erty, of  every  name  and  nature,  and  whether  real,  personal  or  mixed,  of  every 
bankrupt,  except  as  is  hereinafter  provided,  who  shall,  by  a  decree  of  the 
proper  court,  be  declared  to  be  a  bankrupt  within  this  act,  shall,  by  mere  ope- 
ration of  law,  ipso  facto,  from  the  time  of  such  decree,  be  deemed  to  be  divested 
out  of  such  bankrupt,  without  any  other  act,  assignment  or  other  convey- 
ance whatsoever;  and  the  same  shall  be  vested,  by  force  of  the  same  decree, 
for  this  purpose,  which  power  of  appointment  and  removal  such  court  may 
exercise  at  its  discretion,  toties  quoties;  and  the  assignee  so  appointed  shall 
be  vested  with  all  the  rights,  titles,  powers  and  authorities  to  sell,  manage  and 
dispose  of  the  same,  and  to  sue  for  and  defend  the  same,  subject  to  the  orders 
and  directions  of  such  court,  as  fully,  to  all  intents  and  purposes,  as  if  the 
same  were  vested  in  or  might  be  exercised  by  such  bankrupt  before  or  at  the 
time  of  his  bankruptcy  declared  as  aforesaid;  and  all  suits  in  law  or  in  equity 
then  pending,  in  which  such  bankrupt  is  a  party,  may  be  prosecuted  and  de- 
fended by  such  assignee  to  its  final  conclusion,  in  the  same  way  and  with  the 
same  efifect  as  they  might  have  been  by  such  bankrupt;  and  no  suit  com- 
menced by  or  against  any  assignee  shall  be  abated  by  his  death  or  removal 
from  office,  but  the  same  may  be  prosecuted  or  defended  by  his  successor  in 
the  same  office:  Provided,  however.  That  there  shall  be  excepted  from  the 
operation  of  the  provisions  of  this  section  the  necessary  household  and  kitchen 
furniture,  and  such  other  articles  and  necessaries  of  such  bankrupt  as  the  said 
assignee  shall  designate  and  set  apart,  having  reference  in  the  amount  to  the 
family,  condition  and  circumstances  of  the  bankrupt,  but  altogether  not  to 
exceed  in  value,  in  any  case,  the  sum  of  three  hundred  dollars;  and,  also,  the 
wearing  apparel  of  such  bankrupt,  and  that  of  his  wife  and  children;  and  the 


1828  REMINGTON   ON   BANKRUPTCY. 

determination  of  the  assignee  in  the  matter  shall,  on  exception  taken,  be  sub- 
ject to  the  final  decision  of  said  court. 

Sec.  4.    And  be  it  further  enacted,    That  every  bankrupt  who  shall  bona-fide 
surrender  all  his  property,   and  rights  of  property,   with  the  exception  before 
mentioned,   for  the   benefit  of   his   creditors,   and   shall   fully   comply  with   and 
obey  all  the  orders  and  directions  which  may  from  time  to  time  be  passed  by 
the   proper   court,   and   shall   otherwise  conform   to   all   the   requisitions   of  this 
act,  shall    (unless  a  majority  in  number  and  value   of  his  creditors   who  have 
proved  their  debts  shall  file  their  written  dissent  thereto)  be  entitled  to  a  full 
discharge  from  all   his   debts,  to  be   decreed  and  allowed  by  the   court  which 
has   declared   him   a  bankrupt,   and  a   certificate   thereof   granted  him  by   such 
court    accordingly,   upon    his    petition    filed    for    such    purpose;    such    discharge 
and  certificate  not,  however,  to  be  granted  until  after  seventy  days'  notice  in 
some   public   newspaper,   designated  by  such  court,   to   all   creditors   who   have 
proved  their  debts,  and  other  persons  in  interest,  to  appear  at  a  particular  time 
and    place,    to    show    cause    why    such    discharge    and    certificate    shall    not    be 
granted;  at  which  time  and  place  any  such  creditors,  or  other  persons  in  in- 
terest,  may  appear  and  contest   the  right  of  the   bankrupt  thereto:   Provided, 
That  in  all  cases  where  the  residence   of  the   creditor  is  known,  a  service  of 
him  personally,   or   by  letter   addressed   to   him   at   his    known   usual   place    of 
residence,   shall  be  prescribed  by  the   court,  as   in   their  discretion   shall   seem 
proper,  having  regard  to  the  distance  at  which  the  creditor  resides  from  such 
court.     And  if  any   such  bankrupt   shall  be   guilty  of  any  fraud  or  wilful   con- 
cealment of  his  property  or  rights  of  property,  or  shall  have  preferred  any  of 
his   creditors   contrary  to   the  provisions  of  this  act,  or  shall  wilfully  omit  or 
refuse  to  comply  with  any  orders  or  directions  of  such  court,  or  to  conform 
to  any  other  requisites  of  this  act,  or  shall,  in  the  proceedings  under  this  act, 
admit  a  false  or  fictitious  debt  against  his  estate,  he  shall  not  be  entitled  to  any 
such  discharge  or  certificate;  nor  shall  any  person,  being  a  merchant,  banker, 
factor,   underwriter,   broker,    or    marine    insurer,    be    entitled    to    any   such    dis- 
charge or  certificate,  who  shall  become  bankrupt,  and  who  shall  not  have  kept 
proper  books   of  account,  after  the  passing  of  this   act;  nor  any  person   who, 
after  the  passing  of  this  act,  shall  apply  trust  funds  to  his  own  use:  Provided, 
That  no   discharge   of  any  bankrupt  under   this  act   shall   release  or  discharge 
any   person   who    may   be    liable    for   the    same    debt    as    a   partner,    joint    con- 
tractor, indorser,  surety,  or  otherwise  for  or  with  the  bankrupt.     And  such  bank- 
rupt shall  at  all  times  be  subject  to  examination,  orally,  or  upon  written  inter- 
rogatories, in  and  before  such  court,  or  any  commission  appointed  by  the  court 
therefor,  on  oath,  or,  if  conscientiously  scrupulous  of  taking  an  oath,  upon  his 
solemn   affirmation,   in   all   matters   relating  to   such   bankruptcy,   and  his   acts 
and  doings,  and  his  property  and  rights  of  property,  which,  in  the  judgment 
of  such  court,  are  necessary  and  proper  for  the  purposes  of  justice;  and  if,  in 
any   such    examination,    he    shall    wilfully   and    corruptly   answer,   or    swear,    or 
affirm,  falsely,  he   shall  be  deemed  guilty  of  perjury,  and  shall  be  punishable 
therefor  in  like  manner  as  the  crime  of  perjury  is  now  punishable  by  the  laws 
of  the   United  States;   and  such  discharge   and  certificate,  when  duly  granted, 
shall  in  all  courts  of  justice  be   deemed  a  full  and  complete   discharge  of  all 
debts,  contracts  and  other  engagements  of  such  bankrupt  which  are  provable 
under  this  act,  and  shall  be  and  may  be  pleaded  as  a  full  and  complete  bar  to 
all  suits  brought  in  any  court  of  judicature  whatever,  and  the  same   shall  be 
conclusive  evidence  of  itself  in  favor  of  such  bankrupt,  unless  the  same  shall 
be  impeached  for  some  fraud  or  wilful  concealment  by  him  of  his  property  or 
rights  of  property,  as  aforesaid,  contrary  to  the  provisions  of  this  act,  on  prior 
reasonable    notice    specifying    in    writing    such    fraud    or    concealment;    and   if, 


THE  BANKRUPTCY  ACT  OF    1841.  1829 

in  any  case  of  bankruptcy,  a  majority  in  number  and  value  of  the  creditors 
who  shall  have  proved  their  debts  at  the  time  of  hearing  of  the  petition  of  the 
bankrupt  for  a  discharge,  as  hereinbefore  provided,  shall  at  such  hearing  file 
their  written  dissent  to  the  allowance  of  a  discharge  and  certificate  to  such 
bankrupt,  or  if,  upon  such  hearing,  a  discharge  shall  not  be  decreed  to  him, 
the  bankrupt  may  demand  a  trial  by  jury  upon  a  proper  issue  to  be  directed 
by  the  court,  at  such  time  and  place  and  in  such  manner  as  the  court  may 
order;  or  he  may  appeal  from  that  decision  at  any  time  within  ten  days  there- 
after to  the  circuit  court  next  to  be  held  for  the  same  district,  by  simply  en- 
tering in  the  district  court,  or  with  the  clerk  thereof,  upon  record,  his  prayer 
for  an  appeal.  The  appeal  shall  be  tried  at  the  first  term  of  the  circuit  court 
after  it  be  taken,  unless,  for  sufficient  reason,  a  continuance  be  granted;  and 
it  may  be  heard  and  determined  by  said  court  summarily,  or  by  a  jury,  at  the 
option  of  the  bankrupt;  and  the  creditors  may  appear  and  object  against  a 
decree  of  discharge  and  the  allowance  of  the  certificate,  as  hereinbefore  pro- 
vided. And  if,  upon  a  full  hearing  of  the  parties,  it  shall  appear  to  the  satis- 
faction of  the  court,  or  the  jury  shall  find,  that  the  bankrupt  has  made  a  full 
disclosure  and  surrender  of  all  his  estate,  as  by  this  act  required,  and  has 
in  all  things  conformed  to  the  directions  thereof,  the  court  shall  make  a  decree 
cf  discharge,  and  grant  a  certificate,  as  provided  in  this  act. 

Sec.    5.    And    be    it    further    enacted.    That    all    creditors    coming    and    proving 
their  debts  under   such  bankruptcy,  in  the   manner  hereinafter  prescribed,  the 
same  being  bona-fide  debts,  shall  be  entitled  to  share  in  the  bankrupt's  property 
and    effects,   pro    rata,    without    any   priority    or    preference    whatsoever,    except 
only  for  debts  due  by  such  bankrupt  to   the  United  States,  and   for  all  debts 
dne  by  him  to  persons  who,  by  the  laws  of  the  United  States,     have  a     pref- 
erence, in   consequence  of  having  paid  monies  as   his   sureties,  which  shall  be 
first   paid   out   of   the   assets;   and   any  person   who   shall   have   performed   any 
labor  as  an  operative  in  the  service  of  any  bankrupt  shall  be  entitled  to  receive 
the  full  amount  of  the  wages  due  to  him  for  such  labor,  not  exceeding  twenty- 
fxve   dollars:   Provided,  That  such  labor  shall  have  been  performed  within  six 
months  next  before  the  bankruptcy  of  his  employer;  and  all  creditors   whose 
debts   are   not   due  and  payable   until   a   future   day,  all   annuitants,   holders   of 
bottomry   and   respondentia   bonds,    holders    of   policies   of   insurance,    sureties, 
indorsers,    bail,    or    other    persons,    having    uncertain    or    contingent    demands 
against  such  bankrupt,  shall  be  permitted  to  come  in  and  prove  such  debts  or 
claims  under  this  act,  and  shall  have  a  right,  when  their  debts  and  claims  be- 
come absolute,  to  have  the  same  allowed  them;  and  such  annuitants  and  hold- 
ers of  debts  payable  in  future  may  have  the  present  value  thereof  ascertained, 
under  the  direction  of  such  court,  and  allowed  them  accordingly,  as  debts  in 
presenti;   and  no  creditor  or  other  person  coming  in  and  proving  his  debt  or 
other  claim  shall  be  allowed  to  maintain  any  suit  at  law  or  in  equity  therefor, 
but  shall  be  deemed  thereby  to  have  waived  all  right  of  action  and  suit  against 
such    bankrupt;    and    all    proceedings    already    commenced,    and    all    unsatisfied 
judgments  already  obtained  thereon,  shall  be  deemed  to  be  surrendered  there- 
by; and  in  all  cases  where  there  are  mutual  debts  or  mutual  credits  between 
the  parties,  the  balance  only  shall  be  deemed  the  true  debt  or  claim  between 
t'iem,  and  the  residue  shall  be  deemed  adjusted  by  the  set-ofif;  all  such  proof 
of  debts   shall  be  made  before  the  court  decreeing  the  bankruptcy,  or  before 
some   commissioner  appointed  by  the   court  for  that  purpose;   but  such   court 
shall    have    full   power    to    disallow   and    set   aside    any    debt,   upon   proof   that 
such  debt  is  founded  in  fraud,  imposition,  illegality,  or  mistake;  and  corpora- 
tions to  whom  any  debts  are  due  may  make  proof  thereof  by  their  president, 
cashier,   treasurer,   or   other   officer,   who   may  be   specially   appointed   for  that 


1830  REMINGTON   ON   BANKRUPTCY. 

purpose;  and  in  appointing  commissioners  to  receive  proof  of  debts,  and  per- 
form other  duties  under  the  provisions  of  this  act,  the  said  court  shall  appoint 
such  persons  as  have  their  residence  in  the  county  in  which  such  bankrupt 
lives. 

Sec.  6.  And  be  it  further  enacted,  That  the  district  court  in  every  district 
shall  have  jurisdiction  in  all  matters  and  proceedings  in  bankruptcy  arising  un- 
der this  act,  and  any  other  act  which  may  hereafter  be  passed  upon  the  sub- 
ject of  bankruptcy;  the  said  jurisdiction  to  be  exercised  summarily,  in  the 
i!ature  of  summary  proceedings  in  equity;  and  for  this  purpose  the  said  dis- 
trict court  shall  be  deemed  always  open.  And  the  district  judge  may  adjourn 
any  point  or  question  arising  in  any  case  in  bankruptcy  into  the  circuit  court 
for  the  district,  in  his  discretion,  to  be  there  heard  and  determined;  and  for 
this  purpose  the  circuit  court  of  such  district  shall  also  be  deemed  always 
open.  And  the  jurisdiction  hereby  conferred  on  the  district  court  shall  ex- 
tend to  all  cases  and  controversies  in  bankruptcy  arising  between  the  bank- 
rupt and  any  creditor  or  creditors  who  shall  claim  any  debt  or  demand  under 
the  bankruptcy;  to  all  cases  and  controversies  between  such  creditors  or  creditors 
and  the  assignee  of  the  estate,  whether  in  office  or  removed;  to  all  cases  and 
controversies  between  such  assignees  and  the  bankrupt,  and  to  all  acts,  matters 
and  things  to  be  done  under  and  in  virtue  of  the  bankruptcy,  until  the  final 
distribution  and  settlement  of  the  estate  of  the  bankrupt,  and  the  close  of 
the  proceedings  in  bankruptcy.  And  the  said  courts  shall  have  full  authority 
and  jurisdiction  to  compel  obedience  to  all  orders  and  decrees  passed  by  them 
in  bankruptcy,  by  process  of  contempt  and  other  remedial  process,  to  the  same 
extent  the  circuit  courts  may  now  do  in  any  suit  pending  therein  in  equity. 
And  it  shall  be  the  duty  of  the  district  court  in  each  district,  from  time  to  time 
to  prescribe  suitable  rules  and  regulations,  and  forms  of  proceedings,  in  all 
matters  of  bankruptcy;  which  rules,  regulations  and  forms,  shall  be  subject  to 
be  altered,  added  to,  revised,  or  annulled,  by  the  circuit  court  of  the  same 
district,  and  other  rules  and  regulations  and  forms  substituted  therefore; 
and  in  all  such  rules,  regulations  and  forms  it  shall  be  the  duty  of  the 
said  courts  to  make  them  as  simple  and  brief  as  practicable,  .to  the  end  to 
avoid  all  unnecessary  expenses,  and  to  facilitate  the  use  thereof  by  the  public 
at  large.  And  the  said  courts  shall,  from  time  to  time,  prescribe  a  tariff  or 
table  of  fees  and  charges  to  be  taxed  by  the  officers  of  the  court  or  other 
persons  for  services  under  this  act,  or  any  other  on  the  subject  of  bankruptcy; 
which  fees  shall  be  as  low  as  practicable,  with  reference  to  the  nature  and 
character  of  such  services. 

Sec.  7.  And  be  it  further  enacted.  That  all  petitions  by  any  bankrupt  for 
the  benefit  of  this  act,  and  all  petitions  by  a  creditor  against  any  bankrupt 
under  this  act,  and  all  proceedings  in  the  case  to  the  close  thereof,  shall  be 
he'd  in  the  district  court  within  and  for  the  district  in  which  the  person  sup- 
posed to  be  a  bankrupt  shall  reside,  or  have  his  place  of  business,  at  the  time 
when  such  petition  is  filed,  except  where  otherwise  provided  in  this  act.  And 
upon  every  such  petition,  notice  thereof  shall  be  published  in  one  or  more 
public  newspapers  printed  in  such  district,  to  be  designated  by  such  court,  at 
least  twenty  days  before  the  hearing  thereof;  and  all  persons  interested  may 
appear  at  the  time  and  place  where  such  hearing  is  thus  to  be  had,  and  show 
cause,  if  any  they  have,  why  the  prayer  of  the  said  petitioner  should  not  be 
granted;  all  evidence  by  witnesses  to  be  used  in  all  hearings  before  such  court 
shall  be  under  oath,  or  solemn  affirmation,  when  the  party  is  conscientiously 
scrupulous  of  taking  an  oath,  and  may  be  oral  or  by  deposition,  taken  before 
such  court,  or  before  any  commissioner  appointed  by  such  court,  or  before  any 
disinterested   State    judge    of    the     State    in    which    the    deposition   is   taken; 


THE  BANKRUPTCY  ACT  OF    1841.  1831 

and  all  proof  of  debts  or  other  claims,  by  creditors  entitled  to  prove 
the  same  under  this  act  shall  be  under  oath  or  solemn  affirmations,  as  afore- 
said, before  such  court  or  commissioner  appointed  thereby,  or  before  some 
disinterested  State  judge  of  the  State  where  the  creditors  live,  in  such  form 
as  may  be  prescribed  by  the  rules  and  regulations  hereinbefore  authorized 
to  be  made  and  established  by  the  courts  having  jurisdiction  in  bankruptcy. 
But  all  such  proofs  of  debts  and  other  claims  shall  be  open  to  contestation  in 
the  proper  court  having  jurisdiction  over  the  proceedings  in  the  particular 
case  in  bankruptcy;  and  as  well  the  assignee  as  the  creditor  shall  have  a  right 
to  a  trial  by  jury  upon  an  issue  to  be  directed  by  such  court,  to  ascertain  the 
validity  and  amount  of  such  debts  or  other  claims;  and  the  result  therein,  un- 
less a  new  trial  shall  be  granted,  if  in  favor  of  the  claims,  shall  be  evidence  of 
the  validity  and  amount  of  such  debts  or  other  claims.  And  if  any  person  or 
persons  shall  falsely  and  corruptly  answer,  swear  or  affirm,  in  any  hearing  or 
on  trial  of  any  matter,  or  in  any  proceeding  in  such  court  in  bankruptcy,  or 
before  any  commissioner,  he  and  they  shall  be  deemed  guilty  of  perjury,  and 
punishable  therefor  in  the  manner  and  to  the  extent  provided  by  law  for 
other  cases. 

Sec.  8.  And  be  it  further  enacted,  That  the  circuit  court  within  and  for  the 
district  where  the  decree  of  bankruptcy  is  passed  shall  have  concurrent  juris- 
diction with  the  district  court  of  the  same  district  of  all  suits  at  law  and  in 
equity  which  may  and  shall  be  brought  by  any  assignee  of  the  bankrupt 
against  any  person  or  persons  claiming  an  adverse  interest,  or  by  such  person 
against  such  assignee,  touching  any  property  or  rights  of  property  of  said 
bankrupt  transferrable  to,  or  vested  in,  such  assignee;  and  no  suit  at  law  or  in 
equit}^  shall,  in  any  case,  be  maintainable  by  or  against  such  assignee  or  by  or 
against  any  person  or  persons  claiming  an  adverse  interest  touching  the  prop- 
erty and  rights  of  property  aforesaid,  in  any  court  whatsoever  unless  the  same 
shall  be  brought  within  two  years  after  the  declaration  and  decree  of  bank- 
ruptcy, or  after  the  cause  of  suit  shall  first  have  accrued. 

Sec.  9.  And  be  it  further  enacted.  That  all  sales,  transfers  and  other  con- 
veyances of  the  assignee  of  the  bankrupt's  property  and  rights  of  property  shall 
te  made  at  such  times  and  in  such  manner  as  shall  be  ordered  and  appointed 
by  the  court  in  bankruptcy;  and  all  assets  received  by  the  assignee  in  money 
shall,  within  sixty  days  afterwards,  be  paid  into  the  court,  subject  to  its  order 
respecting  its  future  safe-keeping  and  disposition;  and  the  court  may  require 
of  such .  assignee  a  bond,  with  at  least  two  sureties,  in  such  sum  as  it  may 
deem  proper,  conditioned  for  the  due  and  faithful  discharge  of  all  his  duties, 
and  his  compliance  with  the  orders  and  directions  of  the  court;  which  bond 
shall  be  taken  in  the  name  of  the  United  States,  and  shall,  if  there  be  any 
breach  thereof,  be  sued  and  suable,  under  the  order  of  such  court,  for  the 
benefit  of  the;  creditors  and  other  persons  in  interest. 

Sec.  10.  And  be  it  further  enacted.  That  in  order  to  ensure  a  speedy  settle- 
ment and  close  of  the  proceedings  in  each  case  in  bankruptcy,  it  shall  be  the 
duty  of  the  court  to  order  and  direct  a  collection  of  the  assets  and  a  reduc- 
tion of  the  same  to  money,  and  a  distribution  thereof  at  as  e.arly  periods  as 
practicable,  consistently  with  a  due  regard  ^o  the  interests  of  the  creditors; 
and  a  dividend  and  distribution  of  such  assets  as  shall  be  collected  and  re- 
duced to  money,  or  so  much  thereof  as  can  be  safely  disposed  of,  consistently 
with  the  rights  and  interests  of  third  persons  having  adverse  claims  thereto, 
shall  be  made  among  the  creditors  who  have  proved  their  debts,  as  often  as 
once  in  six  months  from  the  time  of  the  decree  declaring  the  bankruptcy;  no- 
tice of  such  dividends  and  distribution  to  be  given  in  some  newspaper  or  news- 
papers  in  the   district,   designated   by  the   court,   ten   days   at   least  before   the 


1832  REMIXGTOX   ON   BANKRUPTCY. 

ovder  therefor  is  passed;  and  the  pendency  of  any  suit  at  law  or  in  equity,  by 
or  against  such  third  persons,  shall  not  postpone  such  division  and  distri- 
bution, except  so  far  as  the  assets  may  be  necessary  to  satisfy  the  same;  and  in 
all  the  proceedings  in  bankruptcy  in  each  case  shall,  if  practicable,  be  finally 
adjusted,  settled  and  brought  to  a  close  by  the  court,  within  two  years  after 
the  decree  declaring  the  bankruptcy.  And  where  any  creditor  shall  not  have 
proved  his  debt  until  a  dividend  or  distribution  shall  have  been  made  and 
declared,  he  shall  be  entitled  to  be  paid  the  same  amount,  pro  rata,  out  of  tho 
remaining  dividends  or  distributions  thereafter  made,  as  the  other  creditors 
have  already  received,  before  the  latter  shall  be  entitled  to  any  portion  thereof. 
■  Sec.  11.  And  be  it  further  enacted,  That  the  assignee  shall  have  full  au- 
thority, by  and  under  the  order  and  direction  of  the  proper  court  in  bank- 
ruptcy, to  redeem  and  discharge  any  mortgage  or  other  pledge,  or  deposit,  or 
lien  upon  any  property,  real  or  personal,  whether  payable  in  presenti  or  at  a 
future  day,  and  to  tender  a  due  performance  of  the  conditions  thereof.  And 
such  assignee  shall  also  have  authority,  by  and  under  the  order  and  direction 
of  the  proper  court  in  bankruptcy,  to  compound  any  debts  or  other  claims,  or 
securities  due  or  belonging  to  the  estate  of  the  bankrupt;  but  no  such  order 
or  direction  shall  be  made  until  notice  of  the  application  is  given  in  some  public 
newspaper  in  the  district,  to  be  designated  by  the  court,  ten  days  at  least 
before  the  hearing,  so  that  all  creditors  and  other  persons  in  interest  may  ap- 
pear and  show  cause,  if  any  they  have,  at  the  hearing,  why  the  order  or  di- 
rection should  not  be  passed. 

Sec.  12.  And  be  it  further  enacted,  That  if  any  person  who  shall  have  been 
discharged  under  this  act,  shall  afterward  become  bankrupt,  he  shall  not  again 
be  entitled  to  a  discharge  under  this  act,  unless  his  estate  shall  produce  (after 
all  charges)  sufficient  to  pay  every  creditor  seventy-five  per  cent,  on  the 
amount  of  the  debt  which  shall  have  been  allowed  to  each  creditor. 

Sec.  13.  And  be  it  further  enacted,  That  the  proceedings  in  all  cases  in 
bankruptcy  shall  be  deemed  matters  of  record;  but  the  same  shall  not  be  re- 
quired to  be  recorded  at  large,  but  shall  be  carefully  filed,  kept  and  numbered 
xn  the  office  of  the  said  court,  and  a  dpcket  only,  or  short  memorandum  there- 
of, with  the  numbers,  kept  in  a  book  by  the  clerk  of  the  court;  and  the  clerk 
of  the  court,  for  affixing  his  name  and  the  seal  of  the  court  to  any  form,  or 
certifying  a  copy  thereof,  when  required  thereto,  shall  be  entitled  to  receive, 
as  compensation,  the  sum  of  twenty-five  cents,  and  no  more.  And  no  officer  of 
the  court,  or  commissioner,  shall  be  allowed  by  the  court  more  than  one  dol- 
lar for  taking  the  proof  of  any  debt  or  other  claim  of  any  creditor  or  other 
person  against  the  estate  of  the  bankrupt;  but  he  may  be  allowed,  in  additior^ 
his  actual  travel  expenses  for  that  purpose. 

Sec.  14.  And  be  it  further  enacted.  That  where  two  or  more  persons,  who 
are  partners  in  trade,  become  insolvent,  an  order  may  be  made  in  the  manner 
provided  in  this  act,  either  on  the  petition  of  such  partners,  or  any  one  of  them. 
or  on  the  petition  of  any  creditor  of  the  partners,  upon  which  order  all  the 
joint  stock  and  property  of  the  company,  and  also  all  the  separate  estate  of 
each  of  the  partners,  shall  be  taken,  excepting  such  parts  thereof  as  are  herein 
exempted;  and  all  the  creditors  of  the  company,  and  the  separate  creditors  of 
each  partner,  shall  be  allowed  to  prove  their  respective  debts;  and  the  assignees 
shall  also  keep  separate  accounts  of  the  joint  stock  or  property  of  the  com- 
pany, and  of  the  separate  estate  of  each  member  thereof;  and  after  deducting- 
out  the  whole  amount  received  by  such  assignees  the  whole  of  the  expenses 
and  disbursements  paid  by  them,  the  net  proceeds  of  the  joint  stock  shall  be 
appropriated  to  pay  the  creditors  of  the  company,  and  the  net  proceeds  of  the 
separate    estate    of    each    partner    shall    be    appropriated    to    pay    his    separate 


THE  BANKRUPTCY  ACT  OF    1841.  1833 

creditors;  and  if  there  shall  be  any  balance  of  the  separate  estate  of  any  part- 
ner, after  the  payment  of  his  separate  debts,  such  -balance  shall  be  added 
to  the  joint  stock  for  the  payment  of  the  joint  'creditors;  and  if  there 
shall  be  any  balance  of  the  joint  stock,  after  the  payment  of  the  joint  debts, 
such  balance  shall  be  divided  and  appropriated  to  and  among  the  separate 
estates  of  the  several  partners  according  to  their  respective  rights  and  in- 
terests therein,  and  as  it  would  have  been  if  the  partnership  had  been  dis- 
solved without  any  bankruptcy;  and  the  sum  so  appropriated  to  the  separate 
estate  of  each  partner  shall  be  applied  to  the  payment  of  his  separate  debts; 
and  the  certificate  of  discharge  shall  be  granted  or  refused  to  each  part- 
ner, as  the  same  would  or  ought  to  be  if  the  proceedings  had  been  against 
bim  alone  under  this  act;  and  in  all  other  respects  the  proceedings  against 
partners  shall  be  conducted  in  the  like  manner  as  if  they  had  been  commenced 
and  prosecuted  against  one  person  alone. 

'Sec.  15.  And  be  it  further  enacted.  That  a  copj^  of  any  decree  of  bank- 
ruptcy, and  the  appointment  of  assignees,  as  directed  by  the  third  section  of 
this  act,  shall  be  recited  in  every  deed  of  lands  belonging  to  the  bankrupt, 
sold  and  conveyed  by  any  assignees  under  and  by  virtue  of  this  act;  and  that 
such  recital,  together  with  certified  copy  of  such  order,  shall  be  full  and  com- 
plete evidence  both  of  the  bankruptcy  and  assignment  therein  recited,  and 
supersede  the  necessity  of  any  other  proof  of  such  bankruptcy  and  assignment 
to  validate  the  said  deed;  and  all  deeds  containing  such  recital,  and  supported 
by  such  proof,  shall  be  as  effectual  to  pass  the  title  of  the  bankrupt,  of,  in  and 
to,  the  lands  therein  mentioned  and  described,  to  the  purchaser,  as  fully  to  all 
intents,  and  purposes,  as  if  made  by  such  bankrupt  himself  immediately  before 
such  order. 

Sec.  16.  And  be  it  further  enacted.  That  all  jurisdiction,  power  and  author- 
ity, conferred  upon  and  vested  in  the  district  court  of  the  United  States  by 
this  act,  in  cases  in  bankruptcy,  are  hereby  conferred  upon  and  vested  in  the 
circuit  court  of  the  United  States  for  the  District  of  Columbia,  and  in  and 
upon  the  supreme  or  superior  courts  of  any  of  the  Territories  of  the  United 
States,  in  cases  in  bankruptcy,  where  the  bankrupt  resides  in  the  said  District 
of  Columbia,  or  in  either  of  the  said  Territories. 

Sec.  17.  And  be  it  further  enacted.  That  this  act  shall  take  effect  from  and 
sfter  the  first  day  of  February  next. 


THE  BANKRUPTCY  ACT  OF  1800. 

Ati     Act     to     establish     a     uniform     System     of     Bankruptcy     throughout     the 

United  States. 

(Passed  April  4th,  1800;  repealed  December   19th,  1803.) 

Section  1.  Be  it  enacted  by  the  Senate  and  House  of  Representatives  of  the 
United  States  of  America  in  Congress  assembled,  That  from  and  after  the 
first  day  of  June  next,  if  any  merchant  or  other  person  residing  within  the 
United  States,  actually  using  the  trade  of  merchandise,  by  buying  and  selling 
in  gross,  or  by  retail,  or  dealing  in  exchange,  or  as  a  banker,  broker,  factor, 
underwriter  or  marine  insurer,  shall,  with  intent  unlawfully  to  delay  or  de- 
fraud his  or  her  creditors,  depart  from  the  State  in  which  such  person  usually 
resides,  or  remain  absent  therefrom,  or  conceal  him  or  herself  therein,  or  keep 
his  or  her  house,  so  that  he  or  she  cannot  be  taken,  or  served  with  process, 
or  willingly  or  fraudulently  procure  him  or  herself  to  be  arrested,  or  his  or 
her  lands,  goods,  money  or  chattels  to  be  attached,  sequestered  or  taken  in  ex- 
ecution, or  make  or  cause  to  be  made  any  fraudulent  conveyance  of  his  or  her 
lands,  or  chattels,  or  make  or  admit  any  false  or  fraudulent  security  or  evi- 
dence of  debt,  or  being  arrested  for  debt,  or  having  surrendered  him  or  her- 
self in  discharge  or  bail,  shall  remain  in  prison  two  months  or  more,  or 
escape  therefrom,  or  whose  lands  or  effects  being  attached  by  process  issuing 
out  of,  or  returnable  to,  any  court  of  common  law,  shall  not,  within  two 
itxonths  after  written  notice  thereof,  enter  special  bail  and  dissolve  tRe  same, 
or  in  districts  in  which  attachments  are  not  dissolved  by  the  entry  of  special 
bail,  being  arrested  for  debt  after  his  or  her  lands  and  effects,  or  any  part 
thereof,  have  been  attached  for  a  debt  or  debts  amounting  to  one  thousand 
dollars  or  upwards,  shall  not,  upon  notice  of  such  attachment,  give  sufficient 
security  for  the  payment  of  what  may  be  recovered  in  the  suit  in  which  he  or 
she  shall  be  arrested,  at  or  before  the  return-day  of  the  same,  to  be  approved 
by  the  judge  of  the  district,  or  some  judge  of  the  court  out  of  which  the  proc- 
ess issued  upon  which  he  is  arrested,  or  to  which  the  same  shall  be  returnable 
every  such  person  shall  be  deemed  and  adjudged  a  bankrupt:  Provided,  that 
no  person  shall  be  liable  to  a  commission  of  bankruptcy  if  the  petition  be  not 
preferred,  in  manner  hereinafter  directed,  within  six  months  after  the  act  of 
bankruptcy  committed. 

Sec.  2.  And  be  it  further  enacted.  That  the  judge  of  the  district  court  of 
the  United  States,  for  the  district  where  the  debtor  resides,  or  usually  resided 
at  the  time  of  committing  the  act  of  bankruptcy,  upcui  petition  in  writing 
against  such  person  or  persons  being  bankrupt,  to  him  to  be  exhibited  by  any 
one  creditor;  or  by  a  greater  number,  being  partners,  whose  single  debt  shall 
amount  to  one  thousand  dollars,  or  by  two  creditors  whose  debts  shall  amount 
to  one  thousand,  five  hundred  dollars^^  or  by  more  than  two  creditors  whose 
debts  shall  amount  to  two  thousand  dollars,  shall  have  power,  by  commission 
under  his  hand  and  seal,  to  appoint  such  good  and  substantial  persons,  being 
citizens  of  the  United  States,  and  resident  in  such  district,  as  such  judge  shall 
deem  proper,  not  exceeding  three,  to  be  commissioners  of  the  said  bankrupt, 
and  in  case  of  vacancy  or  refusal  to  act,  to  appoint  others  from  time  to  time  as 
occasion  may  require:  Provided  always,  that  before  any  commission  shall 
issue,  the  creditor  or  creditors  petitioning  shall  make  affidavit  or  solemn  affir- 
mation before  the  said  judge  of  the  truth  of  his,  her  or  their  debts,  and  give 


THE  BANKRUPTCY  ACT  OF    1800.  1835 

bond,  to  be  taken  by  the  said  judge,  in  the  name  and  for  the  benefit  of 
the  said  party  so  charged  as  a  bankrvipt,  and  in  such  penalty,  and  with  such 
surety,  as  he  shall  require,  to  be  conditioned  for  the  proving  of  his,  her  or 
their  debts,  as  well  before  the  commissioners  as  upon  a  trial  at  law,  in  case 
the  due  issuing  forth  of  the  said  commission  shall  be  contested,  and  also  for 
proving  the  party  a  bankrupt,  and  to  proceed  on  such  commission  in  the  man- 
ner herein  prescribed.  And  if  such  debt  shall  not  be  really  due,  or  after  such 
commission  taken  out  it  cannot  be  proved  that  the  party  was  a  bankrupt,  then 
the  said  judge  shall  upon  the  petition  of  the  party  aggrieved,  in  case  there 
be  occasion,  deliver  such  bond  to  the  said  party,  who  may  sue  thereon,  and 
recover  such  damages  under  the  penalty  of  the  same,  as,  upon  trial  at  law,  he 
shall  make  appear  he  has  sustained,  by  reason  of  any  breach  of  the  condition 
thereof. 

Sec.  3.  And  be  it  further  enacted.  That  before  the  commissioners  shall  be 
capable  of  acting,  they  shall  respectively  take  and  subscribe  the  following 
oath  or  affirmation,  which  shall  be  administered  by  the  judge  issuing  the  com- 
mission, or  by  any  of  the  judges  of  the  Supreme  Court  of  the  United  States, 
or  any  judge,  justice  or  chancellor  of  any  State  court,  and  filed  in  the  office 
of  the  clerk  of  the  district  court:  "I,  A.  B.,  do  swear,  or  affirm,  that  I  will 
faithfully,  impartially  and  honestly,  according  to  the  best  of  my  skill  and 
knowledge,  execute  the  several  powers  and  trusts  reposed  in  me,  as  a  com- 
missioner, in  a  commission  of  bankruptcy  against  ,  and  that  with- 
out favor  or  affection,  prejudice  or  malice."  And  the  commissioners,  who 
shall  be  sworn,  as  aforesaid,  shall  proceed,  as  soon  as  may  be,  to  execute  the 
same;  and  upon  due  examination,  and  sufficient  cause  appearing  against  the 
party  charged,  shall  and  may  declare  him  or  her  to  be  a  bankrupt:  Pr'^vided, 
that  before  such  examination  be  had,  reasonable  notice  thereof,  in  writing, 
shall  be  delivered  to  the  person  charged  as  a  bankrupt;  or  if  he  or  she  he  not  i 
found  at  his  or  her  visual  place  of  abode,  to  some  person  of  the  family  above 
the  age  of  twelve  years,  or  if  no  such  person  appear,  shall  be  fixed  at  the 
■front  or  other  public  door  of  the  house  in  which  he  or  she  usually  resides,  and 
thereupon  it  shall  be  in  the  power  of  such  person,  so  charged  as  aforesaid,  to 
demand  before,  or  at  the  time  appointed  for  such  examination,  that  a  jury 
be  empanelled  to  inquire  into  the  fact  or  facts  alleged  as  the  causes  for  issuing 
the  commission,  and  on  such  demand  being  made  the  inquiry  shall  be  had  be- 
fore the  judge  granting  the  commission,  .at  such  time  as  he  may  direct,  and  in 
that  case  such  person  shall  not  be  declared  bankrupt,  unless,  by  the  verdict 
of  the  jury,  he  or  she  shall  be  found  to  be  within  1;he  description  of  this  act, 
and  shall  be  convicted  of  some  one  of  the  acts  described  in  the  first  section  of 
this  act:  Provided  also,  that  any  commission  which  shall  be  taken  out  a.s 
aforesaid,  and  which  shall  not  be  proceeded  in  as  aforesaid,  within  thirty  days 
thereafter,  may  be  superseded  by  the  said  judge  who  shall  have  granted  the 
same,  upon  the  application  of  the  party  thereby  charged  as  a  bankrupt,  or  of 
any  creditor  of  such  person,  unless  the  delay  shall  have  been  unavoidable  or 
upon  a  just  occasion. 

'Sec.  4.  And  be  it  further  enacted.  That  the  commissioners  so  to  be  ap- 
pointed shall  have  power  forthwith,  after  they  have  declared  such  person  a 
bankrupt,  to  cause  to  be  apprehended,  by  warrant  under  their  hands  and  seals, 
the  body  of  such  bankrupt,  wheresoever  to  be  found  within  the  United  States: 
Provided,  they  shall  think  that  there  is  reason  to  apprehend  that  the  said  bank- 
rupt intends  to  abscond  or  conceal  him  or  herself,  and  in  case  it  be  necessary 
in  order  to  take  the  body  of  said  bankrupt,  shall  have  power  to  cause  the 
doors  of  the  dwelling-house  of  such  bankrupt  to  be  broken,  or  the  doors  of 
any  other  house  in  which  he  or.  she  shall  be  found. 


1836  REMINGTON   ON   BANKRUPTCY. 

Sec.  5.  And  be  it  further  enacted,  That  it  shall  be  the  duty  of  the  commis- 
sioners so  to  be  appointed,  forthwith,  after  they  have  declared  such  persbn  a 
bankrupt,  and  they  shall  have  power  to  take  into  their  possession  all  the  estate, 
real  and  personal,  of  every  nature  and  description,  to  which  the  said  bankrupt 
may  be  entitled,  either  in  law  or  equity,  in  any  manner  whatsoever,  and  cause 
the  same  to  be  inventoried  and  appraised  to  the  best  value,  (his  or  her  nec- 
essary wearing  apparel,  and  the  necessary  wearing  apparel  of  the  wife  and 
children,  and  necessary  beds  and  bedding  of  such  bankrupt  only  excepted) 
and  also  to  take  into  their  possession,  and  secure,  all  deeds  and  books  of  ac- 
count, papers  and  writings  belonging  to  such  bankrupt;  and  shall  cause  the 
same  to  be  safely  kept,  until  assignees  shall  be  chosen  or  appointed,  in  manner 
hereafter  provided. 

Sec.  6.  And  be  it  further  enacted,  That  the  said  commissioners  shall  forth- 
with, after  they  have  declared  such  person  a  bankrupt,  cause  due  and  suffi- 
cient public  notice  thereof  to  be  given,  and  in  such  notice  shall  appoint  some 
convenient  time  and  place  for  the  creditors  to  meet,  in  order  to  choose  an  as- 
signee or  assignees  of  the  said  bankrupt's  estate  and  effects;  at  which  meeting 
the  said  commissioners  shall  admit  the  creditors  of  such  bankrupt  to  prove 
their  debts;  and  where  any  creditor  shall  reside  at  a  distance  from  the  place  of 
such  meeting,  shall  allow  the  debt  of  such  creditor  to  be  proved  by  oath  or 
affirmation,  made  before  some  competent  authority,  and  duly  certified,  and  shall 
permit  any  person  duly  authorized  by  letter  of  attorney  from  such  creditor, 
due  proof  of  the  execution  of  such  letter  of  attorney  being  first  made,  to 
vote  in  the  choice  of  an  assignee  or  assignees  of  such  bankrupt's  estate  and 
effects  in  the  place  and  stead  of  such  creditor:  and  the  said  commissioners 
shall  assign,  transfer  or  deliver  over,  all  and  singular,  the  said  bankrupt's  estate 
£nd  effects,  aforesaid,  with  all  muniments  and  evidences  thereof,  to  such  per- 
son  or  persons  as.  the  major  part  in  value  of  such  creditors,  according  to  the 
several  debts  then  proved,  shall  choose  as  aforesaid:  Provided  always,  That 
in  such  choice,  no  vote  shall  be  given  by,  or  in  behalf  of,  any  creditor  whose 
debt  shall  not  amount  to  two  hundred  dollars. 

Sec.  7.  Provided  always,  and  be  it  further  enacted.  That  it  shall  be  lawful 
for  the  said  commissioners,  as  often  as  they  shall  see  cause,  for  the  better 
preserving  and  securing  of  the  bankrupt's  estate,  before  assignees  shall  be 
chosen  as  aforesaid,  immediately  to  appoint  one  or  more  assignee  or  assignees 
of  the  estate  and  effects  aforesaid,  or  any  part  thereof;  which  assignee  or  as- 
signees aforesaid,  or  any  of  them,  may  be  removed  at  the  meeting  of  the  cred- 
itors, so  to  be  appointed  as  aforesaid  for  the  choice  of  assignees,  is  such  cred- 
itors, entitled  to  vote  as  aforesaid,  or  the  major  part  in  value  of  them,  shall 
think  fit;  and  such  assignee  or  assignees  as  shall  be  so  removed,  shall  deliver 
up  all  the  estate  and  effects  of  such  bankrupt  which  shall  have  come  to  his  or 
their  hands  or  possession,  unto  such  other  assignee  or  assignees  as  shall  be 
chosen  by  the  creditors  as  aforesaid;  and  all  such  estate  and  effects  shall  be, 
to  all  intents  and  purposes,  as  effectually  and  legally  vested  in  such  new- 
assignee  or  assignees  as  if  the  first  assignment  had  been  made  to  him  or  them 
by  the  said  commissioners;  and  if  such  first  assignee  or  assignees  shall  refuse 
or  neglect,  for  the  space  of  ten  days  next  after  notice,  in  writing,  from  such 
new  assignee  or  assignees  of  their  appointment,  as  aforesaid,  to  deliver  over 
as  aforesaid,  all  the  estate  and  effects  as  aforesaid,  every  such  assignee  or 
assignees  shall,  respectively,  forfeit  a  sum  not  exceeding  five  thousand  dollars, 
;or  the  use  of  the  creditors,  and  shall  moreover  be  liable  for  the  property  so 
detained. 

Sec.  8.  And  be  it  further  enacted.  That  at  any  time  previous  to  the  closing 
of   the   accounts   of  the    said  assignee   or  assignees   so   chosen   as   aforesaid,  it 


THE  BANKRUPTCY  ACT  OF   1800.  1837 

shall  be  lawful  for  such  creditors  of  the  bankrupt  as  are  hereby  authorized  to 
vote  in  the  choice  of  assignees,  or  the  major  part  of  them  in  value,  at  a  reg- 
ular meeting  of  the  said  creditors,  to  be  called  for  that  purpose  by  the  said 
commissioners,  or  by  one-fourth  in  value  of  such  creditors,  to  remove  all  or 
ctny  of  the  assignees  chosen  as  aforesaid,  and  to  choose  one  or  more  in  his  or 
their  place  and  stead,  and  such  assignee  or  assignees  as  shall  be  so  removed 
shall  deliver  up  all  the  estate  and  eftects  of  such  bankrupt  which  shall  have 
come  into  his  or  their  hands  or  possession,  unto  such  new  assignee  or  assignees 
>as  shall  be  chosen  by  the  creditors  at  such  meeting;  and  all  such  estate  and 
effects  shall  be,  to  all  intents  and  purposes,  as  effectually  and  legally  vested  in 
such  new  assignee  or  assignees  as  if  the  first  assignment  had  been  made  to  him 
or  them  by  the  said  commissioners;  and  if  such  former  assignee  or  assignees 
shall  refuse  or  neglect,  for  the  space  of  ten  days  next  after  notice,  in  writing 
from  such  new  assignee  or  assignees  of  their  appointment,  as  aforesaid,  to 
deliver  over,  as  aforesaid,  all  the  estate  and  effects  aforesaid,  every  such  former 
assignee  or  assignees  shall  respectively  forfeit  a  sum  not  exceeding  five  thou- 
sand dollars  for  the  use  of  the  creditors,  and  moreover  shall  be  liable  for  the 
property  so  detained. 

Sec.  9.  And  be  it  further  enacted,  That  whenever  a  new  assignee  or  as- 
signees shall  be  chosen  as  aforesaid,  no  suit  at  law  or  in  equity  shall  be 
thereby  abated;  but  it  shall  and  may  be  lawful  for  the  court  in  which  any  suit 
may  depend,  upon  the  suggestion  of  the  removal  of  a  former  assignee  or  as- 
signees, and  of  the  appointment  of  a  new  assignee  or  assignees,  to  allow  the 
name  of  such  new  assignee  or  assignees,  to  be  substituted  in  place  of  the  name 
or  names  of  the  former  assignee  or  assignees,  and  thereupon  the  suit  shall  be 
prosecuted  in  the  name  or  names  of  the  new  assignee  or  assignees,  in  the  same 
manner  as  if  he  or  they  had  originally  commenced  the  suit  in  his  or  their  own 
names. 

Sec.  10.  And  be  it  further  enacted,  That  the  assignment  or  assignments  of 
the  commissioners  of  the  bankrupt's  estate  and  effects  as  aforesaid,  made  as 
aforesaid,  shall  be  good  at  law  or  in  equity  against  the  bankrupt,  and  all  per- 
sons claiming  by,  from  or  under  such  bankrupt,  by  any  act  done  at  the  time, 
or  after,  he  shall  have  committed  the  act  of  bankruptcy  upon  which  the  com- 
mission issued:  Provided  always,  that  in  case  of  a  bona-fide  purchase  made 
before  the  issuing  of  the  commission  from  or  under  such  bankrupt,  for  a  valu- 
able consideration,  by  any  person  having  no  knowledge,  information  or  notice 
of  any  act  of  bankruptcy  committed,  such  purchase  shall  not  be  invalidated  or 
impeached. 

Sec.  11.  And  be  it  further  enacted.  That  the  said  commissioners  shall  have 
power,  by  deed  or  deeds,  under  their  hands  and  seals,  to  assign  and  convey 
to  the  assignee  or  assignees  to  be  appointed  or  chosen  as  aforesaid,  any  lands, 
teneinents  or  hereditaments  which  such  bankrupt  shall  be  seized  of  or  entitled 
to,  in  fee  tail,  at  law,  or  in  equity,  in  possession,  remainder  or  reversion,  for  the 
benefit  of  the  creditors;  and  all  such  deeds  being  duly  executed  and  recorded, 
according  to  the  laws  of  the  State  within  which  such  lands,  tenements  or  here- 
ditaments may  be  situated,  shall  be  good  and  effectual  against  all  persons 
whom  the  said  bankrupt,  by  common  recovery,  or  other  means,  might  or  could 
bar  of  any  estate,  right,  title  of  or  in  the  said  lands,  tenements  or  hereditaments. 

Sec.  12.  And  be  it  further  enacted,  That  if  any  bankrupt  shall  have  con- 
veyed or  assured  any  lands,  goods  or  estate,  unto  any  person,  upon  condition 
or  power  of  redemption,  by  payment  of  money  or  otherwise,  it  shall  be  lawful 
for  the  commissioners,  or  for  any  person  by  them  duly  authorized  for  that 
purpose,  by  writing,  under  their  hands  and  seals,  to  make  tender  of  money  or 


1S38  re;mington  on  bankruptcy. 

other  performance  according  to  the  nature  of  such  condition,  as  fully  as  the 
bankrupt  might  have  done;  and  the  commissioners,  after  such  performance  or 
tender,  shall  have  power  to  assign  such  lands,  goods  and  estate  for  the  benefit 
of  the  creditors,  as  fully  and  effectually  as  any  other  part  of  the  estate  of  such 
bankrupt. 

Sec.  13.  And  be  it  further  enacted.  That  the  commissioners  aforesaid  shall 
have  power  to  assign,  for  the  use  aforesaid,  all  the  debts  due  to  such  bank- 
rupt, or  to  any  other  person  for  his  or  her  use  or  benefit;  which  assignment 
shall  vest  the  property  and  right  thereof  in  the  assignee  or  assignees  of  such 
bankrupt,  as  fully  as  if  the  bond,  judgment,  contract  or  claim  had  originally 
belonged  or  been  inade  to  the  said  assignees;  and  after  the  said  assignment, 
neither  the  said  bankrupt  nor  any  person  acting  as  trustee  for  him  or  her, 
shall  have  power  to  recover  or  discharge  the  same,  nor  shall  the  same  be  at- 
tached as  the  debt  of  the  said  bankrupt;  but  the  assignee  or  assignees  afore- 
said shall  have  such  remedy  to  recover  the  same,  in  his  or  their  own  name  or 
names,  as  such  bankrupt  might  or  could  have  had  if  no  commission  of  bank- 
ruptcy had  issued.  And  when  'any  action  in  the  name  of  such  bankrupt  shall 
have  been  commenced,  and  shall  be  pending  for  the  recovery  of  any  debt  or 
effects  of  such  bankrupt,  which  shall  be  assigned,  or  shall  or  might  become 
vested  in  the  assignee  or  assignees  of  such  bankrupt  as  aforesaid,  then  such 
assignee  or  assignees  may  claim  to  be,  and  shall  be  thereupon,  admitted  to 
prosecute  such  action  in  his  or  their  name,  for  the  use  and  benefit  of  the  cred- 
itors of  such  bankrupt;  and  the  same  judgment  shall  be  rendered  in  such  action, 
and  all  attachments  and  other  security  taken  therein  shall  be  in  like  manner 
holden  and  liable,  as  if  the  said  action  had  been  originally  commenced  in  the 
name  of  said  assignee  or  assignees,  after  the  original  plaintiff  therein  had  be- 
come a  bankrupt  as  aforesaid:  Provided,  that  where  a  debtor  shall  have,  bona- 
fide,  paid  his  debt  to  any  bankrupt,  without  notice  that  such  person  was  bank- 
rupt, he  or  she  shall  not  be  liable  to  pay  the  same  to  the  assignee  or  assignees. 

Sec.  14.  And  be  it  further  enacted.  That  if  complaint  shall  be  made  or  in- 
formation given  to  the  commissioners,  or  if  they  shall  have  good  reason  to 
believe  or  suspect,  that  any  of  the  property,  gopds,  chattels,  or  debts,  of  the 
bankrupt  are  in  the  possession  of  any  other  person,  or  that  any  person  is 
indebted  to  or  for  the  use  of  the  bankrupt,  then  the  said  commissioners  shall 
have  power  to  summon,'  or  to  cause  to  be  summoned,  by  their  attorney  or 
other  person  duly  authorized  by  them,  all  such  persons  before  them,  or  the 
judge  of  the  district  where  such  person  shall  reside,  by  such  process,  or  other 
means,  as  they  shall  think  convenient,  and  upon  their  appearance  to  examine 
them  by  parole  or  by  interrogatories,  in  writing,  on  oath  or  affirmation,  which 
oath  or  afiirmation  they  are  hereby  empowered  to  administer,  respecting  the 
knowledge  of  all  such  property,  goods,  chattels  and  debts;  and  if  such  person 
shall  refuse  to  be  sworn  or  affirmed,  and  to  make  answer  to  such  questions  or 
interrogatories  as  shall  be  administered,  and  to  subscribe  the  said  answers,  or 
upon  examination  shall  not  declare  the  whole  truth,  touching  the  subject-matter 
of  such  examination,  then  it  shall  be  lawful  for  the  commissioners  or  judge 
to  commit  such  person  to  prison,  there  to  be  detained  until  they  shall  submit 
themselves  to  be  examined  in  manner  aforesaid,  and  they  shall,  moreover,  for- 
feit double  the  value  of  all  the  property,  goods,  chattels  and  debts  by  them 
concealed. 

Sec.  15.  And  be  it  further  enacted.  That  if  any  of  the  aforesaid  persons 
shall,  after  legal  summons  to  appear  before  the  commissioners  or  judge,  to  be 
examined,  refuse  to  attend,  or  shall  not  attend  at  the  time  appointed,  having 
no  such  impediment  as  shall  be  allowed  of  by  the  commissioners  or  judge  it 
shall  be  lawful  for  the  said  commissioners  or  judge  to  direct  their  warrants  to 


THE  BANKRUPTCY  ACT  OF   1800.  1839 

such  person  or  persons  as  by  them  shall  be  thought  proper,  to  apprehend  such 
persons  as  shall  refuse  to  appear,  and  to  bring  them  before  the  commissioners 
or  judge  to  be  examined,  and  upon  their  refusal  to  come,  to  commit  them  to 
prison,  until  they  shall  submit  themselves  to  be  examined  according  to  the 
directions  of  this  act:  Provided,  that  such  witnesses  as  shall  be  so  sent  for 
shall  be  allowed  such  compensation  as  the  commissioners  or  judge  shall  thinic 
fit,  to  be  ratably  borne  by  the  creditors;  and  if  any  person,  other  than  the 
bankrupt,  either  by  subornation  of  others,  or  by  his  or  her  own  act,  shall 
v/ilfully  or  corruptly  commit  perjury,  shall  on  conviction  thereof  be  fined  not 
exceeding  four  thousand  dollars  and  imprisoned  not  exceeding  two  years,  and 
moreover  shall,*  in  either  case,  be  rendered  incapable  of  being  a  witness  in  any 
court  of  record. 

Sec.  16.  And  be  it  further  enacted.  That  if  anj^  person  or  persons  shall 
fraudulently  or  collusively  claim  any  debts,  or  claim  or  detain  any  real  or  per- 
sonal estate  of  the  bankrupt,  every  such  person  shall  forfeit  double  the  value 
thereof,  to  and  for  the  use  of  the  creditors. 

Sec.  17.  And  be  it  further  enacted,  That  if  any  person,  prior  to  his  or  her 
becoming  a  bankrupt,  shall  convey  to  any  of  his  or  her  children,  or  other  per- 
sons, any  lands  or  goods,  or  transfer  his  or  her  debts  or  demands  into  other 
persons'  names,  with  intent  to  defraud  his  or  her  creditors,  the  commissioners 
shall  have  power  to  assign  the  same  in  as  effectual  a  manner  as  if  the  bank- 
rupt had  been  actually  seized  or  possessed  thereof. 

Sec.  18.  z^nd  be  it  further  enacted.  That  if  any  person  or  persons  who  shall 
become  bankrupt  within  the  intent  and  meaning  of  this  act,  and  against  whom 
a  commission  of  bankruptcy  shall  be  duly  issued,  upon  which  commission 
such  person  or  persons  shall  be  declared  bankrupt,  shall  not,  within  forty-two 
days  after  notice  thereof,  in  writing,  to  be  left  at  the  usual  place  of  abode  of 
such  person  or  persons,  or  personal  notice  in  case  such  person  or  persons  be 
then  in  prison,  and  notice  given  in  some  gazette,  that  such  commission  hath 
been  issued,  and  of  the  time  and  place  of  meeting  of  the  commissioners,  sur- 
render him  or  herself  to  the  said  commissioners,  and  sign  or  subscribe  such 
surrender,  and  submit  to  be  examined,  from  time  to  time,  upon  oath  or  solemn 
affirmation,  by  and  before  such  commissioners,  and  in  all  things  conform  to 
the  provisions  of  this  act,  and  also  upon  such  his  or  her  examination  fully  and 
truly  disclose  and  discover  all  his  or  her  effects  and  estate,  real  and  personal, 
and  how  and  in  what  manner,  to  whom  and  upon  what  consideration,  and  at 
what  time  or  times,  he  or  she  hath  disposed  of,  assigned  or  transferred,  any 
of  his  or  her  goods,  wares  or  merchandise,  monies  or  other  effects  and  estate, 
and  of  all  books,  papers  and  writings  relating  thereunto  of  which  he  or  she 
was  possessed,  or  in  or  to  which  he  or  she  was  in  any  way  interested  or  en- 
titled, or  which  any  person  or  persons  shall  then  have,  or  shall  have  had  in 
trust  for  him  or  her,  or  for  his  or  her  use,  at  any  time  before  or  after  the 
issuing  of  the  said  commission,  or  whereby  such  bankrupt,  or  his  or  her  fam- 
ily then  hath  or  may  have  or  expect  any  profit,  possibility  of  profit,  benefit  or 
advantage  whatsoever,  except  only  such  part  of  his  or  her  estate  and  effects 
as  shall  have  been  really  and  bona-fide  before  sold  and  disposed  of  in  the 
way  of  his  or  her  trade  and  (fealings,  and  except  such  sums  of  money  as  shall 
have  been  laid  out  in  the  ordinary  expenses  of  his  or  her  family,  and  also 
upon  such  examination,  execute  in  due  form  of  law  such  conveyance,  assur- 
ance and  assignment  of  his  or  her  estate,  whatsoever  and  wheresoever,  as  shall 
be  devised  and  directed  by  the  commissioners,  to  vest  the  same  in  the  assignees, 
their  heirs,  executors,  administrators  and  assigns  forever,  in  trust,  for  the 
use   of  all  and   every  the   creditors   of   such   bankrupt,  who   shall   come   in   and 


1840  REMINGTON   ON   BANKRUPTCY. 

prove  their  debts  under  the  commission;  and  deliver  up  unto  the  commission- 
ers all  such  part  of  his  or  her,  the  said  bankrupt's  goods,  wares,  merchandise, 
money,  effects  and  estate,  and  all  books,  papers  and  writing  thereunto  relating, 
as  at  the  time  of  such  examination  shall  be  in  his  or  her  possession,  custody 
or  power,  his  or  her  necessary  wearing  apparel,  and  the  necessary  wearing  ap- 
parel of  the  wife  and  children,  and  necessary  beds  and  bedding  of  such  bank- 
rupt only  excepted,  then  he  or  she  the  said  bankrupt,  upon  the  conviction  of 
any  wilful  default  or  omission  in  any  of  the  matters  or  things  aforesaid,  shall 
be  adjudged  a  fraudulent  bankrupt,  and  shall  sufifer  imprisonment  for  a  term 
not  less  than  twelve  months,  nor  exceeding  ten  years,  and  shall  not  at  any 
time  after  be  entitled  to  the  benefits  of  this  act:  Provided  always,  that  in  case 
any  bankrupt  shall  be  in  prison  or  custody  at  the  time  of  issuing  such  com- 
mission, and  is  willing  to  surrender  and  submit  to  be  examined  according  to 
the  directions  of  this  act,  and  can  be  brought  before  the  said  commissioners 
and  creditors  for  that  purpose,  the  expense  thereof  shall  be  paid  out  of  the 
said  bankrupt's  effects,  and  in  case  such  bankrupt  is  in  execution,  or  cannot  be 
brought  before  the  commissioners,  that  then  the  said  commissioners,  or  some 
cne  of  them,  shall  from  time  to  time  attend  the  said  bankrupt  in  prison  or 
custody,  and  take  his  or  her  discovery  as  in  other  cases,  and  the  assignees  or 
one  of  them,  or  some  person  appointed  by  them,  shall  attend  such  bankrupt 
in  prison  or  custody,  and  produce  his  or  her  books,  papers  and  writings,  in 
order  to  enable  him  or  her  to  prepare  his  or  her  discovery;  a  copy  whereof  the 
said  assignees  shall  apply  for,  and  the  said  bankrupt  shall  deliver  to  them  or 
their  order  within  a  reasonable  time  after  the  same  shall  have  been  required. 

Sec.  19.  And  be  it  further  enacted.  That  the  said  commissioners  shall  ap- 
point, within  the  said  forty-two  days,  so  limited  as  aforesaid,  for  the  bank- 
rupt to  surrender  and  conform  as  aforesaid,  not  less  than  three  several  meet- 
ings for  the  purposes  aforesaid,  the  third  of  which  meetings  shall  be  on 
the  last  of»the  said  forty-two  days:  Provided  always,  that  the  judge  of  the 
district  within  which  such  commission  issues  shall  have  power  to  enlarge 
the  time  so  limited  as  aforesaid,  for  the  purposes  aforesaid,  as  he  shall  think 
fit,  not  exceeding  fifty  days,  to  be  computed  from  the  end  of  the  said  forty- 
two  days,  so  as  such  order  for  enlarging  the  time  be  made  at  least  six  days 
before  the   expiration  of  said  term. 

Sec.  20.  And  be  it  further  enacted.  That  it  shall  be  lawful  for  the  commis- 
sioners, or  any  other  person  or  officers  by  them  to  be  appointed,  by  their  war- 
rant, under  their  hands  and  seals,  to  break  open  in  the  day  time  the  houses, 
'chambers,  shops,  warehouses,  doors,  trunks  or  chests,  of  the  bankrupt,  where 
any  of  his  or  her  goods  or  estate,  deeds,  books  of  account  or  writings,  shall  be, 
and  to  take  possession  of  the  goods,  money  and  other  estate,  deeds,  books  of 
account  or  writings  of  such  bankrupt. 

Sec.  21.  And  be  it  further  enacted,  That  if  the  bankrupt  shall  refuse  to  be 
examined,  or  to  answer  fully,  or  to  subscribe  his  or  her  examination  as  afore- 
said it  shall  be  lawful  for  the  commissioners  to  commit  the  offender  to  close 
imprisonment  until  he  or  she  shall  conform  him  or  herself;  and  if  the  said 
bankrupt  shall  submit  to  be  examined,  and  up»n  his  or  her  examination  it 
shall  appear  that  he  or  she  hath  committed  wilful  or  corrupt  perjury,  he  or 
she  may  be  indicted  therefor,  and  being  thereof  convicted  shall  suffer  imprison- 
ment for  a  term  not  less  than  two  years,  nor  exceeding  ten  years. 

Sec.  22.  And  be  it  further  enacted.  That  every  bankrupt  having  surrendered, 
shall,  at  all  seasonable  times  before  the  expiration  of  the  said  forty-two  days, 
as  aforesaid,  or  of  such  further  time  as  shall  be  allowed  to  finish  his  or  her 
examination,   be   at   liberty   to   inspect   his    or   her   books   and   writings,   in    the 


rut  BANKRUPTCY  ACT  OF   1800.  1841 

presence  of  some  person  to  be  appointed  by  the  commissioners,  and  to  bring 
with  him  or  her,  for  his  or  her  assistance,  such  persons  as  he  or  she  shall 
think  fit,  not  exceeding  two  at  one  time,  and  to  make  extracts  and  copies  to 
enable  him  or  her  to  make  a  full  discovery  of  his  or  her  effects;  and  the  said 
bankrupt  shall  be  free  from  arrests,  in  coming  to  surrender,  and  after  having 
surrendered  to  the  said  commissioners  for  the  said  forty-two  days,  or  such 
farther  time  as  shall  be  allowed  for  the  finishing  his  or  her  examination;  and 
in  case  such  bankrupt  shall  be  arrested  for  debt,  or  taken  on  any  escape  war- 
rant or  execution,  coming  to  surrender,  or  after  his  or  her  surrender  within 
the  time  before  mentioned,  then  on  producing  such  summons  or  notice  under 
the  hands  of  the  commissioners,  and  giving  the  officer  a  copy  thereof,  he  or 
she  shall  be  discharged;  and  in  case  any  officer  shall  afterwards  detain  such 
bankrupt,  such  officer  shall  forfeit  to  such  bankrupt,  for  his  or  her  own  use, 
ten  dollars  for  every  day  he  shall  detain  the  bankrupt. 

Sec.  23.  And  be  it  further  enacted.  That  every  person  who  shall  knowingly 
or  wilfully  receive  or  keep  concealed  any  bankrupt  so  as  aforesaid  summoned 
to  appear,  or  who  shall  assist  such  bankrupt  in  concealing  him  or  herself,  or 
in  absconding,  shall  suflfer  such  imprisonment,  not  exceeding  twelve  months, 
or  pay  such  fine  to  the  United  States,  not  exceeding  one  thousand  dollars,  as 
upon  conviction  thereof  shall  be  adjudged. 

Sec.  24.  And  be  it  further  enacted.  That  the  said  commissioners  shall  have 
power  to  examine,  upon  oath  or  affirmation,  the  wife  of  any  person  lawfully 
declared  a  bankrupt,  for  'the  discovery  of  such  part  of  his  estate  as  may  be 
concealed  or  disposed  of  bj^  such  wife,  of  by  any  other  person;  and  the  wife 
shall  incur  such  penalties  for  not  appearing  before  the  said  commissioners,  or 
refusing  to  be  sworn  or  affirmed  or  examined,  and  to  subscribe  her  examina- 
tion, or  for  not  disclosing  the  truth,  as  by  this  act  is  provided  against  any  other 
person  in  like  cases. 

Sec.  25.  And  be  it  further  enacted,  That  in  case  any  person  shall  be  com- 
mitted b}^  the  commissioners  for  refusing  to  answer,  or  for  not  fully  answering 
any  question,  or  for  any  other  cause,  the  commissioners  shall  in  their  warrant 
specify  such  question  or  other  cause  of  commitment. 

Sec.  2.6.  And  be  it  further  enacted,  That  if  after  the  bankrupt  shall  have 
finished  his  or  her  final  examination,  any  other  person  or  persons  shall  volun- 
tarily make  discovery  of  any  part  of  such  bankrupt's  estate,  before  unknown 
to  the  commissioners,  such  person  or  persons  shall  be  entitled  to  five  per  cent, 
out  of  the  effects  so  discovered,  and  such  further  reward  as  the  commissioners 
shall  think  proper;  and  any  trustee  having  notice  of  the  bankruptcy,  wilfully 
concealing  the  estate  of  any  bankrupt  for  the  sf)ace  of  ten  days  after  the  bank- 
rupt shall  have  finished  his  final  examination,  as  aforesaid,  shall  forfeit  double 
the  value  of  the  estate  so  concealed,  for  the  benefit  of  the  creditors. 

Sec.  27.  And  be  it  further  enacted.  That  if  anj'  bankrupt,  after  the  issuing 
any  commission  against  him  or  her,  pay  to  the  person  who  sued  out  the  same, 
or  give  or  deliver  to  such  person,  goods,  or  any  other  satisfaction  or  security 
for  his  or  her  debt,  whereby  such  person  shall  privately  have  and  receive  a 
greater  proportion  of  his  or  her  debt  than  the  other  creditors,  such  preference 
shall  be  a  new  act  of  bankruptcy,  and  on  good  proof  thereof  such  commission 
may  and  shall  be  superseded,  and  it  shall  and  may  be  lawful  for  either  of  the 
judges  having  authority  to  grant  the  commission  as  aforesaid,  to  award  any 
creditor  petitioning  another  commission,  and  such  person,  so  taking  such  un- 
due satisfaction  as  aforesaid,  shall  forfeit  and  lose,  as  well  his  or  her  whole 
debts,  as  the  whole  he  or  she  shall  have  taken  and  received,  and  shall  pay  back 
or  deliver  up  the  same,  or  the  full  value  thereof,  to  the  assignee  or  assignees 
2  Rem  B— 41 


1842  REMINGTON   ON   BANKRUPTCY. 

who  shall  be  appointed  or  chosen  under  such  commission,  in  manner  aforesaid, 
in  trust  for,  and  to  be  divided  among,  the  other  creditors  of  the  said  bankrupt, 
in  proportion  to  their  respective  debts. 

Sec.  28.  And  be  it  further  enacted,  That  if  any  bankrupt,  after  the  issuing 
any  commission  against  him  or  her,  pay  to  the  person  w^ho  sued  out  the  same, 
or  give  or  deliver  to  such  person,  goods,  or  any  other  satisfaction  or  security, 
for  his  or  her  debt,  whereby  such  person  shall  privately  have  and  receive 
a  greater  proportion  of  his  or  her  debt  than  the  other  creditors,  such  preference 
shall  be  a  new  act  of  bankruptcy,  and  on  good  proof  thereof,  such  commission 
shall  and  may  be  superseded,  and  it  shall  and  may  be  lawful  for  either  of 
the  judges,  having  authority  to  grant  the  commission  as  aforesaid,  to  award 
any  creditor  petitioning  another  commission;  and  such  person,  so  taking 
such  undue  satisfaction  as  aforesaid,  shall  forfeit  and  lose,  as  well  his  or  her 
whole  debts,  as  the  whole  he  or  she  shall  have  taken  and  received,  and  shall 
pay  back,  or  deliver  up  the  same,  or  the  full  value  thereof,  to  the  assignee 
or  assignees  who  shall  be  appointed  or  chosen  under  such  commission  in  man- 
ner aforesaid,  in  trust  for,  and  to  be  divided  amongst  the  other  creditors  of  the 
said    bankrupt,    in    proportion    to    their    respective    debts. 

Sec.  29.  And  further  be  it  enacted.  That  every  person  who  shall  be  chosen 
assignee  of  the  estate  and  efifects  of  a  bankrupt  shall,  at  some  time  after  the 
expiration  of  four  months,  and  within  twelve  months  from  the  time  of  issuing 
the  commission,  cause  at  least  thirty  days  public  notice  to  be  given  of  the 
time  and  place  the  commissioners  and  assignees  intend  to  meet,  to  make  a 
dividend  or  distribution  of  the  bankrupt's  estate  and  effects;  at  which  time  the 
creditors  who  have  not  before  proved  their  debts  shall  be  at  liberty  to  prove 
the  same;  and  upon  every  such  meeting  the  assignee  or  assignees  shall  produce 
to  the  commissioners  and  creditors  then  present  fair  and  just  accounts  of  all 
his  or  their  receipts  and  payments,  touching  the  bankrupt's  estate  and  efifects, 
and  of  what  shall  remain  outstanding,  and  the  particulars  thereof,  and  shall, 
if  the  creditors  then  present,  or  a  major  part  of  them,  require  the  same,  be 
examined  upon  oath  or  solemn  afifirmation  before  the  same  commissioners, 
touching  the  truth  of  such  accounts;  and  in  such  accounts  the  said  assignee 
or  assignees  shall  be  allowed  and  retain  all  such  sum  and  sums  of  money  as 
they  shall  have  paid  or  expended  in  suing  out  and  prosecuting  the  commis- 
sion, and  all  other  just  allowances  on  account  of  or  by  reason  or  means  of 
their  being  assignee  or  assignees;  and  the  said  commissioners  shall  order  such 
part  of  the  net  product  of  the  said  bankrupt's  estate  as -by  such  accounts  or 
otherwise  shall  appear  to  be  in  the  hands  of  the  said  assignees,  as  they  shall 
think  fit,  to  be  forthwith  divided  among  such  of  the  bankrupt's  creditors  as 
have  duly  proved  their  debts  under  such  commission,  in  proportion  to  their 
several  and  respective  debts;  and  the  commissioners  shall  make  such  their 
order  for  a  dividend  in  writing,  under  their  hands,  and  shall  cause  one  part 
of  such  order  to  be  filed  amongst  the  proceedings  under  the  said  commission, 
and  shall  deliver  to  each  of  the  assignees  under  such  commission  a  duplicate 
of  such  their  order,  which  order  of  distribution  shall  contain  an  account  of  the 
time  and  place  of  making  such  order,  and  the  sum  total  or  quantum  of  all  the 
debts  proved  under  the  commission,  and  the  sum  total  of  the  money  remain- 
ing in  the  hands  of  the  assignee  or  assignees  to  be  divided,  and  how  many 
per  cent,  in  particular  is  there  ordered  to  be  paid  to  every  creditor  of  his  debt; 
and  the  said  assignee  or  assignees,  in  pursuance  of  such  order,  and  without 
any  deed  or  deeds  of  distribution  to  be  made  for  the  purpose,  shall  forthwith 
make  such  dividend  and  distribution  accordingly,  and  shall  take  receipts  in  a 
book  to  be  kept  for  the  purpose,  from  each  creditor,  for  the  part  or  share  of 


THE  BANKRUPTCY  ACT  OF   1800.  1843 

such  dividend  or  distribution  which  he  or  they  shall  make  and  pay  to  each 
creditor  respectively;  and  such  order  and  receipt  shall  be  a  full  and  effectual 
discharge  to  such  assignee  for  so  much  as  he  shall  fairly  pay,  pursuant  to  such 
order  as  aforesaid. 

Sec.  20.  And  it  be  further  enacted,  That  within  eighteen  months  next  after 
the  issuing  of  the  commission  the  assignee  or  assignees  shall  make  a  second 
dividend  of  the  bankrupt's  estate  and  efifects,  in  case  the  same  were  not 
Vv^holly  divided  upon  the  first  dividend,  and  shall  cause  due  public  notice  to  be 
given  of  the  time  and  place  the  said  commissioners  intend  to  meet  to  make  a 
second  distribution  of  the  bankrupt's  estate  and  effects,  and  for  the  creditors 
who  shall  not  before  have  proved  their  debts  to  come  in  and  prove  the  same; 
and  at  said  meeting  the  said  assignees  shall  produce,  on  oath  or  solemn  affirma- 
tion as  aforesaid,  their  account  of  the  bankrupt's  estate  and  effects,  and  what 
upon  the  balance  thereof  shall  appear  to  be  in  their  hands  shall,  by  like  order 
of  the  commissioners,  be  forthwith  divided  amongst  such  of  the  bankrupt's 
creditors  as  shall  have  made  due  proof  of  their  debts,  in  proportion  to  their 
several  and  respective  debts,  which  second  dividend  shall  be  final,  unless  any 
suit  at  law  or  in  equity  be  pending,  or  any  part  of  the  estate  standing  out  that 
could  not  have  been  disposed  of,  or  that  the  major  part  of  the  creditors  shall 
not  have  agreed  to  be  sold  or  disposed  of,  or  unless  some  other  or  future  estate 
or  effect  of  the  bankrupt  shall  afterwards  come  to  or  vest  in  the  said  assignees, 
in  which  cases  the  said  assignees  shall  as  soon  as  may  be,  convert  such  future 
or  other  estate  and  effects  into  money,  and  shall  within  two  months  after  the 
same  be  converted  into  money,  by  like  order  of  the  commissioners,  divide  the 
same  among  such  bankrupt's  creditors  as  shall  have  made  due  proof  of  their 
debt  under  such   commission. 

Sec.  31.  And  be  it  further  enacted,  That  in  the  distribution  of  the  bankrupt's 
effects  there  shall  be  paid  to  every  one  of  the  creditors  a  portion-rate  according 
to  the  amount  of  their  respective  debts,  so  that  every  creditor  having  security 
for  his  debt  by  judgment,  statute,  recognizance,  or  specialty,  or  having  an  at- 
tachment under  any  of  the  laws  of  the  individual  States,  or  of  the  United 
States,  on  the  estate  of  such  bankrupt,  (Provided,  there  be  no  execution  exe- 
cuted upon  any  of  the  real  or  personal  estate  of  such  bankrupt  before  the  time 
he  or  she  became  bankrupts)  shall  not  be  relieved  upon  any  such  judgment, 
statute,  recognizance,  specialty  or  attachment,  for  more  than  a  ratable  part  of 
his  debt,  with  the  other  creditors  of  the  bankrupt. 

Sec.  32.  And  be  it  further  enacted.  That  the  assignees  shall  keep  one  or 
more  distinct  book  or  books  of  account,  wherein  he  or  they  shall  duly  enter 
all  sums  of  money  or  effects  which  he  or  they  shall  have  received_^or  got  into 
his  or  their  possession,  of  the  said  bankrupt's  estate,  to  which  books  of  ac- 
count every  creditor  who  shall  have  proved  his  or  her  debt  shall,  at  all  rea- 
sonable times,  have  free  resort  and  inspect  the  same  as  often  as  he  or  she  shall 
think   fit. 

Sec.  33.  And  be  it  further  enacted.  That  every  bankrupt,  not  being  in  prison 
or  custody,  shall  at  all  times  after  his  surrender  be  bound  to  attend  the  as- 
signees upon  every  reasonable  notice,  in  writing,  for  that  purpose,  given  or 
left  at  the  usual  place  of  his  or  her  abode,  in  order  to  assist  in  making  out 
the  accounts  of  the  said  bankrupt's  estate  and  effects,  and  to  attend  any  court 
of  record,  to  be  examined  touching  the  same,  or  such  other  business  as  the  said 
assignee  shall  judge  necessary,  for  which  he  shall  receive  three  dollars  per  day. 

Sec.  34.  And  be  it  further  enacted,  That  all  and  every  person  and  persons 
who  shall  become  bankrupt  as  aforesaid,  and  who  shall  within  the  time  limited 
by  this   act  surrender  him  or  herself  to  the   commissioners,   and  in   all   things 


1844  rem;ington  on  bankruptcy. 

conform  as  in  and  by  this  act  is  directed,  shall  be  allowed  five  per  cent,  upon 
the  net  produce  of  all  the  estate  that  shall  be  recovered  in  and  received,  which 
shall  be  paid  unto  him  or  her  by  the  assignee  or  assignees,  in  case  the  net 
produce,  to  be  paid  as  aforesaid  so  as  such  ten  per  cent,  shall  not,  in  the  whole, 
creditors  of  said  bankrupt  who  shall  have  proved  their  debts  under  such  com- 
mission the  amount  of  fifty  per  cent,  on  their  said  debts,  respectively,  and  so  as 
the  said  five  per  cent,  shall  not  exceed,  in  the  whole,  the  sum  of  five  hundred 
dollars;  and  in  case  the  net  produce  of  the  said  estate  shall,  over  and  above 
the  allowance  hereafter  mentioned,  be  sufficient  to  pay  the  said  creditors  sev- 
enty-five per  cent,  on  the  amount  of  their  said  debts,  respectively,  that  then 
the  said  bankrupt  shall  be  allowed  ten  per  cent,  on  the  amount  of  such  net 
produce,  to  be  paid  as  aforesaid  so  as  such  ten  per  cent,  shall  not,  in  the  whole, 
exceed  the  sum  of  eight  hundred  dollars;  and  every  such  bankrupt  shall  be 
discharged  from  all  debts  by  him  or  her  due  or  owing  at  the  time  he  or  she 
became  bankrupt,  and  all  which  were  or  might  have  been  proved  under  the 
said  commission;  and  in  case  any  such  bankrupt  shall  afterwards  be  arrested 
or  prosecuted  or  impleaded,  for  or  on  account  of  any  of  the  said  debts,  such 
bankrupt  may  appear  without  bail,  and  may  plead  the  general  issue,  and  give 
this  act  and  the  special  matter  in  evidence.  And  the  certificate  of  such  bank- 
rupt's conforming,  and  the  allowance  thereof,  according  to  the  directions  of 
this  act,  shall  be,  and  shall  be  allowed  to  be,  sufficient  evidence,  prima  facie  of 
the  party's  being  a  bankrupt  within  the  meaning  of  this  act,  and  of  the  com- 
mission and  other  proceedings  precedent  to  the  obtaining  such  certificate,  and  a 
verdict  shall  thereupon  pass  for  the  defendant,  unless  the  plaintif¥  in  such 
action  can  prove  the  said  certificate  was  obtained  unfairly  and  by  fraud,  or 
unless  he  can  make  appear  any  concealment  of  estate  or  effects  by  such  bank- 
rupt to  the  value  of  one  hundred  dollars.  Provided,  That  no  such  discharge 
of  a  bankrupt  shall  release  or  discharge  any  person  who  was  a  partner  with 
such  bankrupt  at  the  time  he  or  she  became  bankrupt,  or  who  was  then  jointly 
held  or  bound  with  such  bankrupt  for  the  same  debt  or  debts  from  which  such 
bankrupt  was  discharged  as  aforesaid. 

Sec.  35.  Provided  always,  and  be  it  further  enacted,  That  if  the  net  pro- 
ceeds of  the  bankrupt's  estate,  so»to  be  discovered,  recovered  and  received, 
shall  not  amount  to  so  much  as  will  pay  all  and  every  of  the  creditors  of 
the  said  bankrupt  who  shall  have  proved  their  debts  under  the  said  commis- 
sion, the  amount  of  fifty  per  cent,  on  their  debts  respectively,  after  all  charges 
first  deducted,  that  then  and  in  such  case  the  bankrupt  shall  not  be  allowed 
five  per  centum  on  such  estate  as  shall  be  recovered  in,  but  shall  have  and  be 
paid  by  the.  assignees  so  much  money  as  the  commissioners  shall  think  fit  to 
allow,  not  more  than  three  hundred  dollars,  nor  exceeding  three  per  centum 
on  the  net  proceeds  of  the  said  bankrupt's  estate. 

Sec.  36.  Provided  also,  and  be  it  further  enacted,  That  no  person  becoming 
a  bankrupt  according  to  the  intent  and  provisions  of  this  act  shall  be  entitled 
to  a  certificate  of  discharge,  or  to  any  of  the  benefits  of  the  act,  unless  the 
commissioners  shall  certify  under  their  hands  to  the  judge  of  the  district 
within  which  such  commission  issues  that  such  bankrupt  hath  made  a  full  dis- 
covery of  his  or  her  estate  and  effects,  and  .in  all  things  conformed  him  or 
herself  to  the  directions  of  this  act,  and  that  there  doth  not  appear  to  them 
any  reason  to  doubt  of  the  truth  of  such  discovery,  or  that  the  same  was  not 
a  full  discovery  of  the  said  bankrupt's  estate  and  effects,  and  in  all  things 
conformed  him  or  herself  to  the  directions  of  this  act,  and  that  there  doth  not 
appear  to  them  any  reason  to  doubt  of  the  truth  of  such  discovery,  or  that  the 
same   was    not   a    full    discovery   of    the    said    bankrupt's    estate    and    effects;    or 


THE  BANKRUPTCY  ACT  OF    1800.  1845 

unless  the  said  judge  should  be  of  opinion  that  the  said  certificate  was  unrea- 
sonably denied  by  the  commissioners;  and  unless  two-thirds,  in  number  and 
in  value,  of  the  creditors  of  the  bankrupt,  who  shall  be  creditors  for  not  less 
than  fifty  dollars  respectively,  and  who  shall  have  duly  proved  their  debts 
under  the  said  commission,  shall  sign  such  certificate  to  the  judge,  and  testify 
their  consent  to  the  allowance  of  a  certificate  of  discharge  in  pursuance  of  this 
act;  which  signing  and  consent  shall  be  also  certified  by  the  commissioners; 
but  the  said  conimissioners  shall  not  certify  the  same  till  they  have  proof  by 
affidavit  or  affirmation,  in  writing,  of  such  creditors,  or  of  the  persons  re- 
spectively authorized  for  that  purpose  signing  the  said  certificate;  which  affi- 
davit or  affirmation,  together  with  the  letter  or  power  of  attorney  to  sign, 
shall  be  laid  before  the  judge  of  the  district  within  which  such  commission 
issues,  in  order  for  the  allowing  the  certificate  of  discharge,  and  the  said  certifi- 
cate shall  not  be  allowed  unless  the  bankrupt  make  oath  or  affirmation  in  writing 
that  the  certificate  of  the  commissioners  and  consent  of  the  creditors  thereunto 
were  obtained  fairly  and  without  fraud;  and  any  of  the  creditors  of  the  said 
bankrupt  are  allowed  to  be  heard,  if  they  shall  think  fit  before  the  respective 
persons  aforesaid,  against  thfe  making  or  allowing  of  such  certificates  by  the 
commissioners  or  judge. 

Sec.  37.  And  be  it  further  enacted.  That  if  any  creditor,  or  pretended  cred- 
itor, of  any  bankrupt  shall  exhibit  to  the  commissioners  any  fictitious  or  false 
debt  or  demand,  with  intent  to  defraud  the  real  creditors  of  such  bankrupt, 
and  the  bankrupt  shall  refuse  to  niake  discovery  thereof  and  sufifer  the  fair 
creditors  to  be  imposed  upon,  he  shall  lose  all  title  to  the  allowance  upon  the 
amount  of  his  effects  and  to  a  certificate  of  discharge  as  aforesaid,  nor  shall 
he  be  entitled  to  the  said  allowance  or  certificate  if  he  has  lost  at  any  one  time 
fifty  dollars,  or  in  the  whole  three  hundred  dollars,  after  the  passing  of  this 
act  and  within  twelve  months  before  he  became  a  bankrupt,  by  any  manner 
of  gaming  or  wagering  whatever. 

Sec.  38.  And  be  it  further  enacted.  That  if  any  bankrupt  who  shall  have 
obtained  his  certificate  shall  be  taken  in  execution  or  detained  in  prison  on 
account  of  any  debts  owing  before  he  became  a  bankrupt,  by  reason  that 
judgment  was  obtained  before  such  certificate  was  allowed,  it  shall  be  lawful 
for  any  of  the  judges  of  the  court  wherein  judgment  was  so  obtained,  or  for 
any  court,  judge  or  justice,  within  the  district  in  which  such  bankrupt  shall 
be  detained,  having  powers  to  award  or  allow  the  writ  of  habeas  corpus,  on 
such  bankrupt  producing  his  certificate  so  as  aforesaid  allowed,  to  order  any 
sheriff  or  gaoler,  who  shall  have  such  bankrupt  in  custody  to  discharge  such 
bankrupt  without  fee  or  charge,  first  giving  reasonable  notice  to  the  plaintiff, 
or  his  attorney,  of  the  motion  for  such  discharge. 

Sec.  39.  And  be  it  further  enacted.  That  every  person  who  shall  have  bona- 
fide  given  credit  to  or  taken  securities,  payable  at  future  days,  from  persons 
who  are  or  shall  become  bankrupts,  not  due  at  the  time  of  such  persons  be- 
coming bankrupt,  shall  be  admitted  to  prove  their  debts  and  contracts  as  if  they 
were  payable  presently,  and  shall  have  a  dividend  in  proportion  to  the  other 
creditors,  discounting,  where  no  interest  is  payable,  at  the  rate  of  so  much 
per  centum  per  annum,  as  is  equal  to  the  lawful  interest  of  the  State  where  the 
debt  was  payable,  and  the  obligee  of  any  bottomry  or  respondentia  bond,  and 
the  assured  in  any  policy  of  in|urance,  shall  be  admitted  to  claim,  and  after 
the  contingency  or  loss  to  prove  the  debt  thereon,  in  like  manner  as  if  the 
same  had  happened  before  issuing  the  commission;  and  the  bankrupt  shall  be 
discharged  from   such   securities   as   if   such   money  had   been  due   and   payable 


1846  REMINGTON    ON   BANKRUPTCY. 

before  the  time  of  his  or  her  becoming  bankrupt;  and  such  creditors  may  peti- 
tion for  a  commission,  or  join  in  petitioning. 

Sec.  40.  And, be  it  further  enacted,  That  in  case  any  pe^-son  committed  by 
the  commissioners'  warrant  shall  obtain  a  habeas  corpus,  in  order  to  be  dis- 
charged and  there  shall  appear  any  insufficiency  in  the  form  of  the  warrant, 
it  shall  be  lawful  for  the  court  or  judge  before  whom  such  party  shall  be 
brought  by  habeas  corpus,  by  rule  or  warrant,  to  commit  such  persons  to  the 
same  prison,  there  to  remain  until  he  shall  conform  as  aforesaid,  unless  it  shall 
be  made  to  appear  that  he  had  fully  answered  all  lawful  questions  put  to  him 
by  the  commissioners;  or  in  case  such  person  was  committed  for  not  signing 
his  examination,  unless  it  shall  appear  that  the  party  had  good  reason  for  re- 
fusing to  sign  the  same  or  that  the  commissioners  had  exceeded  their  authority 
in  making  such  commitment;  and  in  case  the  gaoler  to  whom  such  person  shall 
be  committed  shall  willfully  or  negligently  suffer  such  person  to  escape,  or  go 
without  the  doors  or  walls  of  the  prison,  such  gaoler  shall  for  such  offense, 
being  convicted  thereof,  forfeit  a  sum  not  exceeding  three  thousand  dollars,  for 
the  use  of  the  creditors. 

Sec.  41.  And  be  it  further  enacted.  That  the  gaoler  shall,  upon  the  request 
of  any  creditor  having  proved  his  debt  and  showing  a  certificate  thereof  under 
the  hands  of  the  commissioners,  which  the  commissioners  shall  give  without 
fee  or  reward,  produce  the  person  so  committed;  and  in  case  such  gaoler  shall 
refuse  to  show  such  person  to  such  creditor  requesting  the  same,  such  person 
shall  be  considered  as  having  escaped,  and  the  gaoler  or  sherifif  so  rufusing  shall 
be  liable  as  for  a  willful  escape. 

Sec.  42.  And  be  it  further  enacted.  That  where  it  shall  appear  to  the  said 
commissioners  that  there  hath  been  mutual  credit  given  by  the  bankrupt  and 
any  other  person,  or  mutual  debts  between  them  at  any  time  before  such  per- 
son became  bankrupt,  the  assignee  or  assignees  of  the  estate  shall  state  the 
account  between  them,  and  one  debt  may  be  set  off  against  the  other,  and 
what  shall  appear  to  be  due  on  either  side  on  the  balance  of  such  account  after 
such  set  off,  and  no  more,  shall  be  claimed  or  paid  on  either  side  respectively. 

Sec.  43.  And  be  it  further  enacted.  That  it  shall  and  may  be  lawful  to  and 
for  the  assignee  or  assignees  of  any  bankrupt's  estate  and  effects,  under  the 
direction  of  the  commissioners,  and  by  and  with  the  consent  of  the  major  part 
in  value  of  such  of  the  said  bankrupt's  creditors  as  shall  have  duly  proved 
their  debts  under  the  commission,  and  shall  be  present  at  any  meeting  of  the 
said  creditors,  to  be  held  in  pursuance  of  due  and  public  notice  for  that  pur- 
pose given,  to  submit  any  difference  or  dispute  for,  on  account  of,  or  by  reason 
or  means  of,  any  matter,  cause,  or  thing  whatsoever,  relating  to  such  bank- 
rupt, or  to  his  or  her  estate  or  effects,  to  the  final  end  and  determination  of  ar- 
bitrators to  be  chosen  by  the  said  commissioners,  and  the  major  part  in  value 
of  such  creditors  as  shall  be  present  at  such  meeting  as  aforesaid,  in  such 
manner  as  the  said  assignee  or  assignees,  under  the  direction  and  with  the 
consent  aforesaid,  shall  think  fit  and  can  agree;  and  the  same  shall  be  binding 
on  the  several  creditors  of  the  said  bankrupt,  and  the  said  assignee  or  assignees 
are  hereby  indemnified  for  what  they  shall  fairly  do,  according  to  the  directions 
aforesaid. 

Sec.  44.  And  be  it  further  enacted.  That  the  assignees  shall  be,  and  hereby 
are,  vested  with  full  power  to  dispose  of  all  the  bankrupt's  estate,  real  and  per- 
sonal, at  public  auction  or  vendue,  without  being  subject  to  any  tax,  duty,  im- 
position, or  restriction,  any  law  to  the  contrary  notwithstanding. 

Sec.  45.  And  be  it  further  enacted.  That  if  after  any  commission  of  bank- 
ruptcy sued  forth,  the  bankrupt  happen  to  die  before  the  commissioners  shall 


THE  BANKRUPTCY  ACT  OF   1800.  1847 

have  distributed  the  effects,  or  any  part  thereof,  the  commissioners  shall  never- 
theless proceed  to  execute  the  commission  as  fully  as  they  might  have  done 
if  the  party  were  living. 

Sec.  46.  And  be  it  further  enacted,  That  where  any  commission  of  bank- 
ruptcy shall  be  delivered  to  the  commissioners  therein  named,  to  be  executed, 
it  shall  and  may  be  lawful  for  them  before  they  take  the  oath  or  affirmation 
of  qualification,  to  demand  and  take  from  the  creditor  or  creditors  prosecuting 
such  commission  a  bond  with  one  good  security,  if  required,  in  the  penalty  of 
one  thousand  dollars,  conditioned  for  the  payment  of  the  costs,  charges  and 
expenses  which  shall  arise  and  accrue  upon  the  prosecution  of  the  said  com- 
mission: Provided  always,  that  the  expenses  so  as  aforesaid  to  be  secured  and 
paid  by  the  petitioning  creditor  or  creditors  shall  be  repaid  to  him  or  them 
by  the  commissioner  or  assignees  out  of  the  first  monies  arising  from  the  bank- 
rupt's-estate  or  effects,  if  so  much  be  received  therefrom. 

Sec.  47.  And  be  it  further  enacted,  That  the  district  judges  in  each  district 
respectively  shall  fix  a  rate  of  allowance  to  be  made  to  the  commissioners  of 
bankruptcy,  as  compensation  of  services  to  be  rendered  under  the  commission, 
and  it  shall  be  lawful  for  any  creditor,  by  petition  to  the  district  judge,  to  ex- 
cept to  any  charge  contained  in  the  account  of  the  commissioners:  and  the  said 
judge,  after  hearing  the  commissioners,  may  in  a  summary  way  decide  upon 
the  validity  of  such  exception. 

Sec.  48.  And  be  it  further  enacted,  That  all  penalties  given  by  this  act  for 
the  benefit  of  the  creditors  shall  be  recovered  by  the  assignee  or  assignees  by 
action  of  debt,  and  the  money  so  recovered,  the  charges  of  suit  being  deducted, 
shall  be  distributed  towards  payment  of  the  creditors. 

Sec.  49.  And  be  it  further  enacted,  That  if  any  action  shall  be  brought 
against  any  commissioner,  or  assignee  or  other  person,  having  authority  under 
the  commission,  for  anything  done  and  performed  by  force  of  this  act,  the  de- 
fendant may  plead  tbe  general  issue,  and  give  this  act  and  the  special  matter 
in  evidence;  and  in  case  of  a  non-suit,  discontinuance,  or  verdict  or  judgment 
for  him,  he  shall  recover  double  costs. 

Sec  50.  And  be  it  further  enacted.  That  if  any  estate,  real  or  personal,  shall 
descend,  revert  to,  or  become  vested  in  any  person  after  he  or  she  shall  be 
declared  a  bankrupt,  and  before  he  or  she  shall  obtain  a  certificate  signed  by 
the  judge  as  aforesaid,  all  such  estate  shall,  by  virtue  of  this  act,  be  vested  in 
the  said  commissioners,  and  shall  be  bj'  them  assigned  and  conveyed  to  the 
assignee  or  assignees  in  fee  simple  or  otherwise,  in  like  manner  as  above  di- 
rected, with  the  estate  of  the  said  bankrupt,  at  the  time  of  the  bankruptcy,  and 
the  proceeds  thereof  shall  be  divided  among  the  creditors. 

Sec.  51.  And  be  it  further  enacted.  That  the  said  commissioners  shall,  once 
in  every  year,  carefully  file  in  the  clerk's  office  of  the  district  court  all  the 
f)roceedings  had  in  every  case  before  them,  and  which  shall  have  been  finished, 
including  the  commissions,  examinations,  dividends,  entries  and  other  determi- 
nations of  the  said  commissioners,  in  which  office  the  final  certificate  of  the 
said  bankrupt  may  also  be  recorded;  all  which  proceedings  shall  remain  of 
record  in  the  said  office,  and  certified  copies  thereof  shall  be  admitted  as  evi- 
dence in  all  courts,  in  like  manner  as  the  copies  of  the  proceedings  of  the  said 
district  court  are  admitted  in  other  cases. 

Sec.  52.  And  be  it  further  enacted,  That  it  shall  and  may  be  lawful  for  any 
creditor  of  such  bankrupt  to  attend  all  or  any  of  the  examinations  of  said  bank- 
rupt, and  the  allowance  of  the  final  certificate,  if  he  shall  think  proper,  and 
then  and  there  to  propose  interrogatories  to  be  put  by  the  judge  or  commis- 
sioners   to   the    said   bankrupt    and    others,    and    also    to   produce    and    examine 


;j^848  REMINGTON   ON   BANKRUPTCY. 

witnesses  and  documents  before  such  judge  or  commissioners,  relative  to 
the  subject-matter -before  them.  And  in  case  either  the  bankrupt  or  cred- 
itor shall  think  him  or  herself  aggrieved  by  the  determination  of  the  said 
judge  or  commissioners,  relative  to  any  material  fact  in  the  commence- 
ment or  progress  of  the  said  proceedings,  or  in  the  allowance  of  the  certifi- 
cate aforesaid,  it  shall  and  may  be  lawful  for  either  party  to  petition  the  said 
judge,  setting  forth  such  facts  and  the  determination  thereon,  with  the  complaint 
of  the  party,  and  a  prayer  for  trial  by  jury  to  determine  the  same,  and  the 
said  judge  shall,  in  his  discretion,  make  order  thereon,  and  reward  a  venire 
facias  to  the  marshal  of  the  district,  returnable  within  fifteen  days  before  him, 
for  the  trial  of  the  facts  mentioned  in  the  said  petition,  notice  whereof  shall 
be  given  to  the  commissioners  and  creditors  concerned  in  the  same;  at  which 
time  the  trial  shall  be  had,  unless,  on  good  cause  shown,  the  judge  shall  give 
farther  time,  and  judgment  being  entered  on  the  verdict  of  the  jury  sha|l  be 
final  on  the  said  facts,  and  the  judge  or  commissioners  shall  proceed  agreeably 
thereto. 

Sec.  53.  And  be  it  further  enacted,  That  the  commissioners  before  the  ap- 
pointment of  assignees,  and  the  assignees  after  such  appointment,  may  from 
time  to  time  make  such  allowance  out  of  the  bankrupt's  estate  until  he  shall 
have  obtained  his  final  discharge  as  in  their  opinion  may  be  requisite  for  the 
necessary  support  of  the  said  bankrupt  and  his  family. 

Sec.  54.  And  be  it  further  enacted.  That  it  shall  be  lawful  for  the  major 
part  in  value  of  the  creditors,  before  they  proceed  to  the  choice  of  assignees, 
to  direct  in  what  manner,  with  whom  and  where  the  monies  arising  by  and  to 
be  received  from  time  to  time  out  of  the  bankrupt's  estate  shall  be  lodged,  until 
the  same  shall  be  divided  among  the  creditors,  as  herein  provided;  to  which 
direction  every  such  assignee  and  assignees  shall  conform  as  often  as  three 
hundred  dollars  shall  be  received. 

Sec.  55.  And  be  it  further  enacted.  That  every  matter  and  thing  by  this  act 
required  to  be  done  by  the  commissioners  of  any  bankrupt  shall  be  valid  to  all 
intents  and  purposes,  if  performed  by  a  majority  of  them. 

Sec.  56.  And  be  it  further  enacted.  That  in  all  cases  where  the  assignee 
shall  prosecute  any  debtor  of  the  bankrupt  for  any  debt,  duty  or  demand,  the 
commission,  or  a  certified  copy  thereof,  and  the  assignment  of  the  commis- 
sioners of  the  bankrupt's  estate,  shall  be  conclusive  evidence  of  the  issuing  the 
commission  and  of  the  person  named  therein  being  a  trader  and  bankrupt  at 
the  time  mentioned  therein. 

Sec.  57.  And  be  it  further  enacted,  That  every  person  obtaining  a  discharge 
from  his  debts,  by  certificate  as  aforesaid,  granted  under  a  commission  of 
bankruptcy,  shall  not  on  any  future  commission  be  entitled  to  any  other  cer- 
tificate than  a  discharge  of  his  person  only;  unless  the  net  proceeds  of  the 
estate  and  effects  of  such  person  so  becoming  bankrupt  a  second  time  shall 
be  sufficient  to  pay  seventy-five  per  cent,  to  his  or  her  creditors  on  the  amount 
of  their  debts  respectively. 

Sec.  58.  And  be  it  further  enacted,  That  any  creditor  of  a  person  against 
whom  a  commission  of  bankruptcy  shall  have  been  sued  forth,  and  who  shall 
lay  his  claim  before  the  commissioners  appointed  in  pursuance  of  this  act, 
may  at  the  same  time  declare  his  unwillingness  to  submit  the  same  to  the 
ju^dgment  of  the  said  commissioners,  and  his  wish  that  a  jury  may  be  im- 
panelled to  decide  thereon:  And  in  like  manner  the  assignee  or  assignees  of 
such  bankrupt  may  object  to  the  consideration  of  any  particular  claim  by  the 


THE  BANKRUPTCY  ACT  OF    1800.  1849 

commissioners,  and  require  that  the  same  should  be  referred  to  a  jury.  In 
either  case  such  objection  and  request  shall  be  entered  on  the  books  of  the 
commissioners,  and  thereupon  an  issue  shall  be  made  up  between  the  parties, 
and  a  jury  shall  be  impanelled,  as  in  other  cases,  to  try  the  same  in  the  circuit 
court  for  the  district  in  which  such  bankrupt  has  usually  resided.  The  verdict 
of  such  jury  shall  be  subject  to  the  control  of  the  court,  as  in  suits  originally 
instituted  in  the  said  court,  and  when  rendered,  if  not  set  aside  by  the  said 
court,  shall  be  certified  to  the  commissioners,  and  shall  ascertain  the  amount 
of  any  such  claim,  and  such  creditor  or  creditors  shall  be  considered  in  all 
respects  as  having  proved  their  debts  under  the  commission. 

Sec.  59.  And  be  it  further  enacted.  That  the  lands  and  effects  of  any  person 
becoming  bankrupt  may  be  sold  on  such  credit,  and  on  such  security,  as  a 
major  part  in  value  of  the  creditors  may  direct:  Provided,  nothing  herein  con- 
tained shall  be  allowed  so  to  operate  as  to  retard  the  granting  the  bankrupt's 
certificate. 

Sec.  60.  And  be  it  further  enacted,  That  if  any  person  becoming  bankrupt 
shall  be  in  prison,  it  shall  be  lawful  for  any  creditor  or  creditors,  at  whose 
suit  he  or  she  shall  be  in  execution,  to  discharge  him  or  her  from  custody,  or 
if  such  creditor  or  creditors  shall  refuse  to  do  so,  the  prisoner  may  petition 
the  commissioners  to  liberate  him  or  her,  and  thereupon,  if  in  the  opinion  of  the 
commissioners  the  conduct  of  such  bankrupt  shall  have  been  fair,  so  as  to  en- 
title him  or  her  in  their  opinion  to  a  certificate,  when  by  law  such  certificate 
might  be  given,  it  shall  be  lawful  for  them  to  direct  the  discharge  of  such 
prisoner,  and  to  enter  the  same  in  their  books,  which  being  notified  to  the 
keeper  of  the  gaol  in  which  such  prisoner  may  be  confined  shall  be  a  sufficient 
authority  for  his  or  her  discharge:  Provided,  that  in  either  case,  such  discharge 
shall  be  no  bar  to  another  execution,  if  a  certificate  shall  be  refused  to  such 
bankrupt:  And  provided  also,  that  it  shall  be  no  bar  to  a  subsequent  impris-. 
onment  of  such  bankrupt  by  order  of  the  commissioners,  in  conformity  with 
the  provisions  of  this  act. 

Sec.  61.  And  be  it  further  enacted,  That  this  act  shall  not  repeal  or  annul, 
or  be  construed  to  repeal  or  annul,  the  laws  of  any  State  now  in  force,  or 
which  may  be  hereafter  enacted,  for  the  relief  of  insolvent  debtors,  except  so 
far  as  the  same  may  respect  persons  who  are  or  may  be  clearly  within  the  pur- 
view of  this  act,  and  whose  debts  shall  amount  in  the  cases  specified  in  the 
second  section  thereof  to  the  sums  herein  mentioned.  And  if  any  person  within 
the  purview  of  this  act  shall  be  imprisoned  for  the  space  of  three  months, 
for  any  debt  or  upon  any  contract,  unless  the  creditors  of  such  prisoner  shall 
proceed  to  prosecute  a  commission  of  bankruptcy  against  him  or  her,  agreeably 
to  the  provisions  of  this  act,  such  debtor  may  and  shall  be  entitled  to  relief, 
under  any  such  laws  for  the  relief  of  insolvent  debtors,  this  act  notwithstand- 
ing. 

Sec.  62.  And  be  it  further  enacted.  That  nothing  contained  in  this  law  shall 
in  any  manner  affect  the  right  of  preference  to  prior  satisfaction  of  debts  due 
to  the  United  States  as  secured  or  provided  by  any  law  heretofore  passed,  nor 
shall  be  construed  to  lessen  or  impair  any  right  to,  or  security  for,  money  due 
to  the  United  States  or  to  any  of  them. 

Sec.  63.  And  be  it  further  enacted,  That  nothing  contained  in  this  act  shall 
be  taken  or  construed  to  invalidate  or  impair  any  lien  existing  at  the  date  of 
this  act  upon  the  lands  or  chattels  of  any  person  who  may  have  become  a  bank- 
rupt. 

Sec.   64.    And   be   it   further   enacted,    That    this    act   shall    continue    in   force 


1850  REMINGTON   ON   BANKRUPTCY. 

during  the  term  of  five  years,  and  from  thence  to  the  end  of  the  next  session  of 
congress  thereafter,  and  no  longer:  Provided,  that  the  expiration  of  this  act 
shall  not  prevent  the  complete  execution  of  any  commission  which  may  have 
been  previously  thereto  issued. 

An  Act   to   provide   for   the   more    convenient   organisation    of   the   Courts   of    the 

United  States. 

(February  13,  1801.) 

Sec.  12.  The  said  circuit  courts  respectively  shall  have  cognizance,  concur- 
rently with  the  district  courts,  of  all  cases  which  shall  arise,  within  their  re- 
spective circuits,  under  the  act  to  establish  an  uniform  system  of  bankruptcy 
throughout  the  United  States;  and  each  circuit  judge,  within  his  respective  cir- 
cuit, shall  and  may  perform,  all  and  singular,  the  duties  enjoined  by  the  said 
act  upon  a  judge  of  a  district  court:  and  the  proceedings  under  a  commission 
of  bankruptcy  which  shall  issue  from  a  circuit  judge  shall,  in  all  respects,  be 
conformable  to  the  proceedings  under  a  commission  of  bankruptcy  which  shall 
issue  from  a  district  judge,  mutatis  mutandis. 

An  Act  to  amend  the  judicial  system  of  the  United  States. 
(April  29,  1802.) 

Sec.  11.  In  all  cases  in  which  proceedings  shall,  on  the  said  first  day  of  July 
next,  be  pending  under  a  commission  of  bankruptcy  issued  in  pursuance  of  the 
aforesaid  act,  entitled  "x^n  act  to  provide  for  the  more  convenient  organiza- 
tion of  the  courts  of  the  United  States,"  the  cognizance  of  the  same  shall  be, 
and  hereby  is,  transferred  to,  and  vested  in,  the  district  judge  of  the  district 
within  which  such  commission  shall  have  issued,  who  is  hereby  empowered 
to  proceed  therein  in  the  same  manner  and  to  the  same  efifect  as  if  such  com- 
mission of  bankruptcy  had  been  issued  by  his  order. 


GENERAL  ORDERS  IN  BANKRUPTCY. 


SUPREME  COURT  OF  THE  UNITED  STATES. 
October  Term,  1898. 

In  pursuance  of  the  powers  conferred  by  the  Constitution  and  laws  upon 
the  Supreme  Court  of  the  United  States,  and  particularly  by  the  act  of 
Congress  approved  July  1,  1898,  entitled  "An  act  to  establish  a  uniform 
system  of  bankruptcy  throughout  the  United  States,"  it  is  ordered  on  this 
28th  day  of  November,  1898,  that  the  following  rules  be  adopted  and  es- 
tablished as  general  orders  in  bankruptcy,  to  take  effect  on  the  first  Mon- 
day, being  the  second  day,  of  January,  1899.  And  it  is  further  ordered 
that  all  proceedings  in  bankruptcy  had  before  that  day,  in  accordance 
with  the  act  last  aforesaid,  and  being  in  substantial  conformity  either 
with  the  provisions  of  these  general  orders,  or  else  with  the  general  or- 
ders established  by  this  court  under  the  bankrupt  act  of  1867  and  with 
any  general  rules  or  special  orders  of  the  courts  in  bankruptcy,  stand  good, 
subject,  however,  to  such  further  regulation  by  rule  or  order  of  those 
courts  as  may  be  necessary  or  proper  to  carry  into  force  and  effect  the 
bankrupt  act  of  1898  and  the  general  orders  of  this  court. 


Docket. 

The  clerk  shall  keep  a  docket,  in  which  the  cases  shall  be  entered  and 
numbered  in  the  order  in  which  they  are  commenced.  It  shall  contain  a 
memorandum  of  the  filing  of  the  petition  and  of  the  action  of  the  court 
thereon,  of  the  reference  of  the  case  to  the  referee,  and  of  the  transmis- 
sion by  him  to  the  clerk  of  his  certified  record  of  the  proceedings,  with  the 
dates  thereof,  and  a  memorandum  of  all  proceedings  in  the  case  except 
those  duly  entered  on  the  referee's  certified  record  aforesaid.  The  docket 
shall  be  arranged  in  a  manner  convenient  for  reference,  and  shall  at  all 
times  be  open  to  public  inspection. 

II. 

Filing  of  Papers. 

The  clerk  or  the  referee  shall  indorse  on  each  paper  filed  with  him  the 
day  and  hour  of  filing,  and  a  brief  statement  of  its  character. 

III. 

Process. 

All  process,  summons  and  subpcenas  shall  issue  out  of  the  court,  under 
the  seal  thereof,  and  be  tested  by  the  clerk;  and  blanks,  with  the  signature 


1854  REMINGTON   ON   BANKRUPTCY. 

of  the  clerk  and  seal  of  the  court,  may,  upon  application,  be  furnished  to 
the  referees. 

IV. 

Conduct  of  Proceedings. 

Proceedings  in  bankruptcy  may  be  conducted  by  the  bankrupt  in  per- 
son in  his  own  behalf,  or  by  a  petitioning  or  opposing  creditor;  but  a 
creditor  will  only  be  allowed  to  manage  before  the  court  his  individual 
interest.  Every  party  may  appear  and  conduct  the  proceedings  by  attor- 
ney, who  shall  be  an  attorney  or  counselor  authorized  to  practice  in  the 
circuit  court  or  district  court.  The  name  of  the  attorney  or  counselor, 
with  his  place  of  business,  shall  be  entered  upon  the  docket,  with  the  date 
of  the  entry.  All  papers  or  proceedings  offered  by  an  attorney  to  be  filed 
shall  be  indorsed  ^s  above  required,  and  orders  granted  on  motion  shall 
contain  the  name  of  the  party  or  attorney  making  the  motion.  Notices 
and  orders  which  are  not,  by  the  act  or  by  these  general  orders,  required 
to  be  served  on  the  party  personally  may  be  served  upon  his  attorney. 

V. 

Frame  oe  Petitions. 

All  petitions  and  the  schedules  filed  therewith  shall  be  printed  or  writ- 
ten out  plainly,  without  abbreviation  or  interlineation,  except  where  such 
abbreviation  and  interlineation  may  be  for  the  purpose  of  reference. 

VI. 

Petitions  in  Dieeerent  Districts. 

In  case  two  or  more  petitions  shall  be  filed  against  the  same  individual 
in  different  districts,  the  first  hearing  shall  be  had  in  the  district  in  which 
the  debtor  has  his  domicil,  and  the  petition  may  be  amended  by  inserting 
an  allegation  of  an  act  of  bankruptcy  committed  at  an  earlier  date  than 
that  first  alleged,  if  such  earlier  act  is  charged  in  either  of  the  other  peti- 
tions; and  in  case  of  two  or  more  petitions  against  the  same  partnership 
in  different  courts,  each  having  jurisdiction  over  the  case,  the  petition  first 
filed  shall  be  first  heard,  and  may  be  amended  by  the  insertion  of  an  alle- 
gation of  an  earlier  act  of  bankruptcy  than  that  first  alleged,  if  such  earlier 
act  is  charged  in  either  of  the  other  petitions ;  and,  in  either  case,  the  pro- 
ceedings upon  the  other  petitions  may  be  stayed  until  an  adjudication  is 
.Tiade  upon  the  petition  first  heard;  and  the  court  which  mak«s  the  first 
adjudication  of  bankruptcy  shall  retain  jurisdiction  over  all  proceedings 
therein  until  the  same  shall  be  closed.  In  case  two  or  more  petitions  shall 
be  filed  in  different  districts  by  different  members  of  the  same  partnership 
for  an  adjudication  of  the  bankruptcy  of  said  partnership,  the  court  in 
which  the  petition  is  first  filed,  having  jurisdiction,  shall  take  and  retain 
jurisdiction  over  all  proceedings  in  such  bankruptcy  until  the  same  shall 


GENERAI, -ORDDRS   IN    BANKRUPTCY.  1855 

be  closed;  and  if  such  petitions  shall  be  filed  in  the  same  district,  action 
shall  be  first  had  upon  the  one  first  filed.  But  the  court  so  retaining 
jurisdiction  shall,  if  satisfied  that  it  is  for  the  greatest  convenience  of 
parties  in  interest  that  another  of  said  courts  should  proceed  with  the 
cases,  order  them  to  be  transferred  to  that  court. 

VII. 
Priority  of  Petitions. 

Whenever  two  or  more  petitions  shall  be  filed  by  creditors  against  a 
common  debtor,  alleging  separate  acts  of  bankruptcy  committed  by  said 
debtor  on  dififerent  days  within  four  months  prior  to  the  filing  of  said 
petitions,  and  the  debtor  shall  appear  and  show  cause  against  an  adjudi- 
cation of  bankruptcy  against  him  on  the  petitions,  that  petition  shall  be 
first  heard  and  tried  which  alleges  the  commission  of  the  eariiest  act  of 
bankruptcy;  and  in  case  the  several  acts  of  bankruptcy  are  alleged  in  the 
different  petitions  to  have  been  committed  on  the  same  day,  the  court  be- 
fore which  the  same  are  pending  may  order  them  to  be  consolidated,  and 
proceed  to  a  hearing  as  upon  one  petition;  and  if  an  adjudication  of  bank- 
ruptcy be  made  upon  either  petition,  or  for  the  commission  of  a  single 
act  of  bankruptcy,  it  shall  not  be  necessary  to  proceed  to  a  hearing  upon 
the  remaining  petitions,  unless  proceedings  be  taken  by  the  debtor  for  the 
purpose  of  causing  such  adjudication  to  be  annulled  or  vacated. 

VIII. 

Proceedings  in  Partnership  Cases. 

Any  member  of  a  partnership,  who  refuses  to  join  in  a  petition  to  have 
the  p'^rtnership  declared  bankrupt,  shall  be  entitled  to  resist  the  prayer 
of  the  petition  in  the  same  manner  as  if  the  petition  had  been  filed  by  a 
creditor  of  the  partnership,  and  notice  of  the  filing  of  the  petition  shall  be 
given  to  him  in  the  same  manner  as  provided  by  law  and  by  these  rules 
in  the  case  of  a  debtor  petitioned  against;  and  he  shall  have  the  right  to 
appear  at  the  time  fixed  by  the  court  for  the  hearing  of  the  petition,  and 
to  make  proof,  if  he  can,  that  the  partnership  is  not  insolvent  or  has  not 
committed  an  act  of  bankruptcy,  and  to  make  all  defenses  which  any 
debtor  proceeded  against  is  entitled  to  take  by  the  provisions  of  the  act; 
and  in  case  an  adjudication  of  bankruptcy  is  made  upon  the  petition,  such 
partner  shall  be  required  to  file  a  schedule  of  his  debts  and  an  inventory 
of  his  property  in  the  same  manner  as  is  required  by  the  act  in  cases  of 
debtors  against  whom  adjudication  of  bankruptcy  shall  be  made. 

IX. 

Schedule  in  Involuntary  Bankruptcy. 

In  all  cases  of  involuntary  bankruptcy  in  which  the  bankrupt  is  absent 
or  cannot  be  found,  it  shall  be  the  duty  of  the  petitioning  creditor  to  file, 


1856  REMINGTON   ON  BANKRUPTCY. 

v/ithin  five  days  after  the  date  of  the  adjudication,  a  schedule  giving  the 
names  and  places  of  residence  of  all  the  creditors  of  the  bankrupt,  accord- 
ing to  the  best  information  of  the  petitioning  creditor.  If  the  debtor  is 
found,  and  is  served  with  notice  to  furnish  a  schedule  of  his  creditors  and 
fails  to  do  so,  the  petitioning  creditor  may  apply  for  an  attachment  against 
the  debtor,  or  may  himself  furnish  such  schedule  as  aforesaid. 

X. 

Indemnity  for  Expenses. 

Before  incurring  any  expense  in  publishing  or  mailing  notices  or  in 
traveling,  or  in  procuring  the  attendance  of  witnesses,  or  in  perpetuating 
testimony,  the  clerk,  marshal  or  referee  may  require,  from  the  bankrupt 
or  other  person  in  whose  behalf  the  duty  is  to  be  performed,  indemnity  for 
such  expense.  Money  advanced  for  this  purpose  by  the  bankrupt  or  other 
person  shall  be  repaid  him  out  of  the  estate  as  part  of  the  cost  of  ad- 
ministering the  same. 

XI. 

Amendments. 

The  court  may  allow  amendments  to  the  petition  and  schedules  on  ap- 
plication of  the  petitioner.  Amendments  shall  be  printed  or  written, 
signed  and  verified,  like  original  petitions  and  schedules.  If  amendments 
zre  made  to  separate  schedules,  the  same  must  be  made  separately,  with 
proper  references.  In  the  application  for  leave  to  amend,  the  petitioner 
shall  state  the  cause  of  the  error  in  the  paper  originally  filed. 

XII. 

Duties  of  Referee. 

1.  The  order  referring  a  case  to  a  referee  shall  name  a  day  upon  which 
the  bankrupt  shall  attend  before  the  referee;  and  from  that  day  the  bank- 
rupt shall  be  subject  to  the  orders  of  the  court  in  all  matters  relating  to 
his  bankruptcy,  and  may  receive  from  the  referee  a  protection  against 
arrest,  to  continue  until  the  final  adjudication  on  his  application  for  a  dis- 
charge, unless  suspended  or  vacated  by  order  of  the  court.  A  copy  of  the 
order  shall  forthwith  be  sent  by  mail  to  the  referee,  or  be  delivered  to  him 
personally  by  the  clerk  or  other  officer  of  the  court.  And  thereafter  all 
the  proceedings,  except  such  as  are  required  by  the  act  or  by  these  general 
orders  to  be  had  before  the  judge,  shall  be  had  before  the-referee. 

2.  The  time  when  and  the  place  where  the  referees  shall  act  upon- the 
matters  arising  under  the  several  cases  referred  to  them  shall  be  fixed  by 
special  order  of  the  judge,  or  by  the  referee;  and  at  such  times  and  places 
the  referees  may  perform  the  duties  which  they  are  empowered  by  the  act 
lo  perform. 


GENERA!.   ORDERS    IN    BANKRUPTCY.  1857 

3.  Applications  for  a  discharge,  or  for  the  approval  of  a  composition, 
or  for  an  injunction  to  stay  proceedings  of  a  court  or  officer  of  the  United 
States  or  of  a  State,  shall  be  heard  and  decided  by  the  judge.  But  he  may 
refer  such  an  application,  or  any  specified  issue  arising  thereon,  to  the 
referee  to  ascertain  and  report  the  facts. 

XIIL 

Appointment  and  Removal  oe  Trustee. 

The  appointment  of  a  trustee  by  the  creditors  shall  be  subject  to  be  ap- 
proved or  disapproved  by  the  referee  or  by  the  judge;  and  he  shall  be 
removable  by  the  judge  only. 

XIV. 

No  Ofeiciae  or  General  Trustee. 

No  official  trustee  shall  be  appointed  by  the  court,  nor  any  general  trus- 
tee to  act  in  classes  of  cases. 

XV. 

Trustee  Not  Appointed  in  Certain  Cases. 

If  the  schedule  of  a  voluntary  bankrupt  discloses  no  assets,  and  if  no 
creditor  appears  at  the  first  meeting,  the  court  may,  by  order  setting  out 
the  facts,  direct  that  no  trustee  be  appointed ;  but  at  any  time  thereafter 
a  trustee  may  be  appointed,  if  the  court  shall  deem  it  desirable.  If  no 
trustee  is  appointed  as  aforesaid,  the  court  may  order  that  no  meeting  of 
the  creditors  other  than  the  first  meeting  shall  be  called. 

XVI. 

Notice  to  Trustee  oe  his  Appointment. 

It  shall  be  the  duty  of  the  referee,  immediately  upon  the  appointment 
and  approval  of  the  trustee,  to  notify  him  in  person  or  by  mail  of  his  ap- 
pointment ;  and  the  notice  shall  rec/uire  the  trustee  forthwith  to  notify  the 
referee  of  his  acceptance  or  rejection  of  the  trust,  and  shall  contain  a  state- 
ment of  the  penal  sum  of  the  trustee's  bond. 

XVII. 

Duties  of  Trustee. 

The  trustee  shall,  immediately  upon  entering  upon  his  duties,  prepare 
a  complete  inventory  of  all  the  property  of  the  bankrupt  that  comes  into 
his  possession.  The  trustee  shall  make  report  to  the  court,  within  twenty 
days  after  receiving  the  notice  of  his  appointment,  of  the  articles  set  oit 
to  the  bankrupt  by  him,  according  to  the  provisions  of  the  forty-iseventh 
section  of  the  act,  with  the  estimated  value  of  each  article,  and  any  creditor 
nay  take  exceptions  to  the  determination  of  the  trustee  within  twenty  days 
2  Rem  B— 42 


1858  REMINGTON   ON   BANKRUPTCY. 

after  the  filing  of  the  report.  The  referee  may  require  the  exceptions  to 
be  argued  before  him,  and  shall  certify  them  to  the  court ^  for  final  de- 
termination at  the  request  of  either  party.  In  case  the  trustee  shall  neg- 
lect to  file  any  report  or  statement  which  it  is  made  his  duty  to  file  or  make 
by  the  act,  or  by  any  general  order  in  bankruptcy,  within  five  days  after 
the  same  shall  be  due,  it  shall  be  the  duty  of  the  referee  to  make  an  order 
requiring  the  trustee  to  show  cause  before  the  judge,  at  a  time  specified 
in  the  order,  why  he  should  not  be  removed  from  office.  The  referee  shall 
cause  a  copy  of  the  order  to  be  served  upon  the  trustee  at  least  seven 
days  before  the  time  fixed  for  the  hearing,  and  proof  of  the  service  thereof 
to  be  delivered  to  the  clerk.  All  accounts  of  trustees  shall  be  referred  as 
of  course  to  the  referee  for  audit,  unless  otherwise  specially  ordered 
by  the  court. 

XVIII. 

Sale  of  Property. 

1.  All  sales  shall  be  by  public  auction  unless  otherwise  ordered  by  the 
court. 

2.  Upon  application  to  the  court,  and  for  good  cause  shown,  the  trustee 
Hiay  be  authorized  to  sell  any  specified  portion  of  the  bankrupt's  estate 
at  private  sale;  in  which  case  he  shall  keep  an  accurate  account  of  each 
article  sold,  and  the  price  received  therefor,  and  to  whom  sold;  which  ac- 
count he  shall  file  at  once  with  the  referee. 

3.  Upon  petition  by  a  bankrupt,  creditor,  receiver  or  trustee,  setting  forth 
that  a  part  or  the  wdiole  of  the  bankrupt's  estate  is  perishable,  the  nature 
and  location  of  such  perishable  estate,  and  that  there  will  be  loss  ifv  the 
same  is  not  sold  immediately,  the  court,  if  satisfied  of  the  facts  stated  and 
that  the  sale  is  required  in  the  interest  of  the  estate,  may  order  the  same 
to  be  sold,  with  or  without  notice  to  the  creditors,  and  the  proceeds  to  be 
deposited  in  court. 

XIX. 

Accounts  of  Marshal. 

The  marshal  shall  make  return,  und-er  oath,  of  his  actual  and  necessary 
expenses  in  the  service  of  every  warrant  addressed  to  him,  and  for  custody 
of  property,  and  other  services,  and  other  actual  and  necessary  expenses 
paid  by  him,  with  vouchers  therefor  whenever  practicable,  and  also  wuth 
a  statement  that  the  amounts  charged  by  him  are  just  and  reasonable. 

XX. 

Papers  Filed  After  Reference. 

Proofs  of  claims  and  other  papers  filed  subsequently  to  the  reference, 
except  such  as  call  for  action  by  the  judge,  may  be  filed  either  with  the 
referee  or  with  the  clerk. 


GENERAL   ORDERS    IN   BANKRUPTCY.  1859 

XXL 

Proof  of  Debts. 

1.  Depositions  to  prove  claims  against  a  bankrupt's  estate  shall  be  cor- 
rectly entitled  in  the  court  and  in  the  cause.  When  made  to  prove  a  debt 
due  to  a  partnership,  it  must  appear  on  oath  that  the  deponent  is  a  member 
of  the  partnership;  when  made  by  an  agent,  the  reason  the  deposition  is 
not  made  by  the  claimant  in  person  must  be  stated ;  and  when  made  to 
prove  a  debt  due  to  a  corporation,  the  deposition  shall  be  made  by  the 
treasurer,  or,  if  the  corporation  has  no  treasurer,  by  the  officer  .whose 
duties  most  nearly  correspond  to  those  of  treasurer.  Depositions  to  prove 
debts  existing  in  open  account  shall  state  when  the  debt  became  or  will 
become  due;  and  if  it  consists  of  items  maturing  at  different  dates  the 
average  due  date  shall  be  stated,  in  default  of  which  it  shall  not  be  nec- 
essary to  compute  interest  upon  it.  All  such  depositions  shall  contain 
an  averment  that  no  note  has  been  received  for  such  account,  nor  any  judg- 
ment rendered  thereon.  Proofs  of  debt  received  by  any  trustee  shall  be 
delivered  to  the  referee  to  whom  the  cause  is  referred. 

2.  Any  creditor  may  file  with  the  referee  a  request  that  all  notices  to 
which  he  may  be  entitled  shall  be  addressed  to  him  at  any  place,  to  be 
designated  by  the  postoffice  box  or  street  number,  as  he  may  appoint ;  and 
thereafter,  and  until  some  other  designation  shall  be  made  by  such  creditor, 
^11  notices  shall  be  so  addressed;  and  in  other  cases  notices  shall  be  ad- 
dressed as  specified  in  the  proof  of  debt. 

3.  Claims  which  have  been  assigned  before  proof  shall  be  supported  by 
a  deposition  of  the  owner  at  the  time  of  the  commencement  of  proceedings, 
setting  forth  the  true  consideration  of  the  debt  and  that  it  is  entirely  un- 
secured, or  if  secured,  the  security,  as  is  required  in  proving  securea 
claims.  Upon  the  filing  of  satisfactory  proof  of  the  assignment  of  a 
claim  proved  and  entered  on  the  referee's  docket,  the  referee  shall  im- 
mediately give  notice  by  mail  to  the  original  claimant  of  the  filing  of  such 
proof  of  assignment;  and,  if  no  objection  be  entered  within  ten  days, 
or  within  further  time  allowed  by  the  referee,  he  shall  make  an  order  sub- 
rogating the  assignee  to  the  original  claimant.  If  objection  be  made,  he 
shall  proceed  to  hear  and  determine  the  matter. 

4.  The  claims  of  persons  contingently  liable  for  the  bankrupt  may  be 
proved  in  the  name  of  the  creditor  when  known  by  the  party  contingently 
liable.  When  the  name  of  the  creditor  is  unknown,  such  claim  may  be 
proved  in  the  name  of  the  party  contingently  liable;  but  no  dividend 
sliall  be  paid  upon  such  claim,  except  upon  satisfactory  proof  that  it  will 
diminish  pro  tanto  the  original  debt. 

5.  The  execution  of  any  letter  of  attorney  to  represent  a  creditor,  or 
of  an  assignment  of  claim  after  proof,  may  be  proved  or  acknowledged 
before  a  referee,  or  a  United  States  commissioner,  or  a  notary  public. 
When  executed  on  behalf  of  a  partnership  or  of  a  corporation,  the  person 


1860  REMINGTON   ON   BANKRUPTCY. 

executing  the  instrument  shall  make  oath  that  he  is  a  member  of  the  part- 
nership, or  a  duly  authorized  officer  of  the  corporation  on  whose  behalf 
he  acts.  When  the  person  executing  is  not  personally  known  to  the  offi- 
cer taking  the  proof  or  acknowledgment,  his  identity  shall  be  established 
by  satisfactory  proof. 

6.  When  the  trustee  or  any  creditor  shall  desire  the  re-examination  of 
feny  claim  filed  against  the  bankrupt's  estate,  he  may  apply  by  petition  to 
the  referee  to  whom  the  case  is  referred  for  an  order  for  such  re-exam- 
ination, and  thereupon  the  referee  shall  make  an  order  fixing  a  time  for 
hearing  the  petition,  of  which  due  notice  shall  be  given  by  mail  addressed 
to  the  creditor.  At  the  time  appointed  the  referee  shall  take  the  examina- 
tion of  the  creditor,  and  of  any  witnesses  that  may  be  called  by  either 
party,  and  if  it  shall  appear  from  such  examination  that  the  claim  ought 
to  be   expunged   or   diminished,   the  referee  may  order   accordingly. 

XXII. 

Taking  of  Testimony. 

The  examination  of  witnesses  before  the  referee  may  be  conducted  by 
the  party  in  person  or  by  his  counsel  or  attorney,  and  the  witnesses  shall 
be  subject  to  examination  and  cross-examination,  which  shall  be  had  in 
conformity  with  the  mode  now  adopted  in  courts  of  law.  A  deposition 
taken  upon  an  examination  before  a  referee  shall  be  taken  down  in  writing 
by  him,  or  under  his  direction,  in  the  form  of  narrative,  unless  he  de- 
termines that  the  examination  shall  be  by  question  and  answer.  When 
completed  it  shall  be  read  over  to  the  witness  and  signed  by  him  in  the 
presence  of  the  referee.  The  referee  shall  note  upon  the  deposition  any 
question  objected  to,  with  his  decision  thereon;  and  the  court  shall  have 
power  to  deal  with  the  costs  of  incompetent,  immaterial,  or  irrelevant  de- 
positions, or  parts  of  them,  as  may  be  just. 

XXIII. 
Orders  oe  Referee. 

In  all  orders  made  by  a  referee,  it  shall  be  recited,  according  as  the 
fact  may  be,  that  notice  was  given  and  the  manner  thereof ;  or  that  the 
order  was  made  by  consent;  or  that  no  adverse  interest  was  represented 
at  the  hearing;  or  that  the  order  was  made  after  hearing  adverse  interests. 

XXIV. 
Transmission  of  Proved  Claims  to  Clerk. 

The  'referee  shall  forthwith  transmit  to  the  clerk  a  list  of  the  claims 
proved  against  an  estate,  with  the  names  and  addresses  of  the  proving 
creditors. 


CENERAi,  orde;rs  in  bankruptcy.  1861 

XXV. 

Special  Me;e;ting  of"  Creditors. 

Whenever,  by  reason  of  a  vacancy  in  the  office  of  trustee,  or  for  any 
other  cause,  it  becomes  necessary  to  call  a  special  meeting  of  the  creditors 
in  order  to  carry  out  the  purposes  of  the  act,  the  court  may  call  such  a 
meeting,  specifying  in  the  notice  the  purpose  for  which  it  is  called. 

XXVI. 

Accounts  of  Referei;. 

Every  referee  shall  keep  an  accurate  account  of  his  traveling  and  inci- 
dental expenses,  and  of  those  of  any  clerk  or  any  officer  attending  him 
in  the  performance  of  his  duties  in  any  case  which  may  be  referred  to 
him;  and  shall  make  return  of  the  same  under  oath  to  the  judge,  with 
l)roper  vouchers  when  vouchers  can  be  procured,  on  the  first  Tuesday  in 
each  month. 

XXVII. 

Review  by  Judge. 

When  a  bankrupt,  creditor,  trustee,  or  other  person  shall  desire  a  re- 
view by  the  judge  of  any  order  made  by  the  referee,  he  shall  file  with  the 
referee  his  petition  therefor,  setting  out  the  error  complained  of;  and  the 
referee  shall  forthwith  certify  to  the  judge  the  question  presented,  a  sum- 
mary of  the  evidence  relating  thereto,  and  the  finding  and  order  of  the 
referee  thereon. 

XXVIII. 

Redemption  oe  Property  and  Compounding  oe  Claims. 

Whenever  it  may  be  deemed  for  the  benefit  of  the  estate  of  a  bankrupt 
to  redeem  and  discharge  any  mortgage  or  other  pledge,  or  deposit  or 
lien,  upon  any  property,  real  or  personal,  or  to  relieve  said  property  from 
any  conditional  contract,  and  to  tender  performance  of  the  conditions 
thereof,  or  to  compound  and  settle  any  debts  or  other  claims  due  or  be- 
longing to  the  estate  of  the  bankrupt,  the  trustee,  or  the  bankrupt,  or 
any  creditor  who  has  proved  his  debt,  may  file  his  petition  therefor ;  and 
thereupon  the  court  shall  appoint  a  suitable  time  and  place  for  the  hear- 
ing thereof,  notice  of  which  shall  be  given  as  the  court  shall  direct,  so 
that  all  creditors  and  other  persons  interested  may  appear  and  show 
cause,  if  any  they  have,  why  an  order  should  not  be  passed  by  the  court 
upon  the  petition  authorizing  such  act  on  the  part  of  the  trustee. 

XXIX.   . 

Payment  oe  Moneys  Deposited. 
No  moneys  deposited  as  required  by  the  act  shall  be  drawn  from  the 


1862  REMINGTON   ON   BANKRUPTCY. 

depository  unless  by  check  or  warrant,  signed  by  the  clerk  of  the  court,  or 
by  a  trustee,  and  countersigned  by  the  judge  of  the  court,  or  by  a  referee 
designated  for  that  purpose,  or  by  the  clerk  or  his  assistant  under  an  or- 
der made  by  the  judge,  stating  the  date,  the  sum,  and  the  account  for 
which  it  is  drawn;  and  an  entry  of  the  substance  of  such  check  or  war- 
rant, with  the  date  thereof,  the  sum  drawn  for,  and  the  account  for  which 
it  is  drawn,  shall  be  forthwith  made  in  a  book  kept  for  that  purpose  by 
the  trustee  or  his  clerk ;  and  all  checks  and  drafts  shall  be  entered  in 
the  order  of  time  in  which  they  are  drawn,  and  shall  be  numbered  in 
the  case  of  each  estate.  A  copy  of  this  general  order  shall  be  furnished  to 
the  depository,  and  also  the  name  of  any  referee  or  clerk  authorized  to 
countersign  said  checks. 

XXX. 

Imprisoned  Debtor. 

If,  at  the  time  of  preferring  his  petition,  the  debtor  shall  be  imprisoned, 
the  court,  upon  application,  may  order  him  to  be  produced  upon  habeas 
corpus,  by  the  jailor  or  any  officer  in  whose  custody  he  may  be,  before  the 
referee,  for  the  purpose  of  testifying  in  any  matter  relating  to  his  bank- 
ruptcy; and,  if  committed  after  the  filing  of  his  petition  upon  process  in 
any  civil  action  founded  upon  a  claim  provable  in  bankruptcy,  the  court 
may,  upon  like  application,  discharge  him  from  such  imprisonment.  If 
the  petitioner,  during  the  pendency  of  the  proceedings  in  bankruptcy,  be 
arrested  or  imprisoned  upon  process  in  any  civil  action,  the  district  court, 
upon  his  application,  may  issue  a  right  of  habeas  corpus  to  bring  him  be- 
fore the  court  to  ascertain  whether  such  process  has  been  issued  for  the 
collection  of  any  claim  provable  in  bankruptcy,  and  if  so  provable  he  shall 
be  discharged;  if  not,  he  shall  be  remanded  to  the  custody  in  which  he 
may  lawfully  be.  Before  granting  the  order  for  discharge  the  court  shall 
cause  notice  to  be  served  upon  the  creditor  or  his  attorney,  so  as  to  give 
him  an  opportunity  of  appearing  and  being  heard  before  the  granting  of 
the  order. 

XXXI. 

Petition  for  Discharge. 

The  petition  of  a  bankrupt  for  a  discharge  shall  state  concisely,  in  ac- 
cordance with  the  provisions  of  the  act  and  the  orders  of  the  court,  the 
p-roceedings  in  the  case  and  the  acts  of  the  bankrupt. 

XXXII. 
Opposition  to  Discharge  or  Composition. 
A  creditor  opposing  the  application  of  a  bankrupt  for  his  discharge,  or 
for  the  confirmation  of  a  composition,  shall  enter  his  appearance  in  oppo- 
sition thereto  on  the  day  when  the  creditors  are  required  to  show  cause, 


ge;neral  orders  in  bankruptcy.  1863 

and  shall  file  a  specification  in  writing  of  the  grounds  of  his  opposition 
within  ten  days  thereafter,  unless  the  time  shall  be  enlarged  by  special  or- 
der of  the  judge. 

XXXIII. 

Arbitration. 

Whenever  a  trustee  shall  make  application  to  the  court  for  authority  to 
submit  a  controversy  arising  in  the  settlement  of  a  demand  against  a  bank- 
rupt's estate,  or  for  a  debt  due  to  it,  to  the  determination  of  arbitrators, 
or  for  authority  to  compound  and  settle  such  controversy  by  agreement 
with  the  other  party,  the  application  shall  clearly  and  distinctly  set  forth 
the  subject-matter  of  the  controversy,  and  the  reasons  why  the  trustee 
thinks  it  proper  and  most  for  the  interest  of  the  estate  that  the  controversy 
should  be  settled  by  arbitration  or  otherwise. 

XXXIV. 

Costs  in  Conte;ste:d  Adjudications. 

In  cases  of  involunary  bankruptcy,  when  the  debtor  resists  an  adjudica- 
tion, and  the  court,  after  hearing,  adjudges  the  debtor  a  bankrupt,  the  peti- 
tioning creditor  shall  recover,  and  be  paid  out  of  the  estate,  the  same 
costs  that  are  allowed  to  a  party  recovering  in  a  suit  in  equity;  and  if  the 
petition  is  dismissed,  the  debtor  shall  recover  like  costs  against  the  peti- 
tioner. 

XXXV. 

Compensation  of  Clerks,  Referees  and  Trustees. 

1.  The  fees  allowed  by  the  act  to  clerks  shall  be  in  full  compensation 
for  all  services  performed  by  them  in  regard  to  filing  petitions  or  other 
papers  required  by  the  act  to  be  filed  with  them,  or  in  certifying  or  de- 
livering papers  or  copies  of  records  to  referees  or  other  officers,  or  in  re- 
ceiving or  paying  out  money;  but  shall  not  include  copies  furnished  to 
other  persons,  or  expenses  necessarily  incurred  in  publishing  or  mailing 
notices  or  other  papers. 

2.  The  compensation  of  referees,  prescribed  by  the  act,  shall  be  in  full 
compensation  for  all  services  performed  by  them  under  the  act,  or  under 
these  general  orders ;  but  shall  not  include  expenses  necessarily  incurred 
by  them  in  publishing  or  mailing  notices,  in  traveling,  or  in  perpetuating 
testimony,  or  other  expenses  necessarily  incurred  in  the  performance 
of  their  duties  under  the  act  and  allowed  by  special  order  of  the  judge. 

3.  The  compensation  allowed  to  trustees  by  the  act  shall  be  in  full  com- 
pensation for  the  services  performed  by  them ;  but  shall  not  include  ex- 
penses necessarily  incurred  in  the  performance  of  their  duties  and  allowed 
iipon  the  settlement  of  their  accounts. 

4.  In  any  case  in  which  the  fees  of  the  clerk,  referee  and  trustee  are 


Ig64  REMINGTON   ON   BANKRUPTCY. 

not  required  by  the  act  to  be  paid  by  a  debtor  before  filing  his  petition 
to  be  adjudged  a  bankrupt,  the  judge,  at  any  time  during  the  pendency 
of  the  proceedings  in  bankruptcy,  may  order  those  fees  to  be  paid  out  of 
the  estate;  or  may,  after  notice  to  the  bankrupt,  and  satisfactory  proof 
that  he  then  has  or  can  obtain  the  money  with  which  to  pay  those  fees, 
order  him  to  pay  them  within  a  time  specified,  and,  if  he  fails  to  do  so, 
may  order  his  petition  to  be  dismissed. 

Amendment  to  General  Orders  in  Bankruptcy  No.  35. 

It  is  ordered  by  the  Court  that  General  Order  in  Bankruptcy  No.  35 
he  amended  by  adding  the  following  sentence  to  subdivision  4 : 
He  mav  also,  pending  such  proceedings,  both  in  voluntary  and  involun- 
tarx  cases,  order  the  commissions  of  referees  and  trustees  to  he  paid  im~ 
mediatelv  after  such  commissions  accrue  and  are  earned. 

■     XXXVI. 
Appeals. 

1.  Appeals  from  a  court  of  bankruptcy  to  a  circuit  court  of  appeals,  or 
to  the  supreme  court  of  a  Territory,  shall  be  allowed  by  a  judge  of  the 
court  appealed  from  or  of  the  court  appealed  to,  and  shall  be  regulated, 
except  as  otherwise  privided  in  the  act,  by  the  rules  governing  appeals  in 
equity  in  the  courts  of  the  United  States. 

2.  Appeals  under  the  act  of  the  Supreme  Court  of  the  United  States 
from  a  circuit  court  of  appeals,  or  from  the  supreme  court  of  a  Territory, 
or  from  the  supreme  court  of  the  District  of  Columbia,  or  from  any  court 
of  bankruptcy  whatever,  shall  be  taken  within  thirty  days  after  the  judg- 
ment or  decree,  and  shall  be  allowed  by  a  judge  of  the  court  appealed  from, 
or  by  a  justice  of  the  Supreme  Court  of  the  United  States. 

3.  In  every  case  in  which  either  party  is  entitled  by  the  act  to  take  an 
appeal  to  the  Supreme  Court  of  the  United  States,  the  court  from  which 
the  appeal  lies  shall,  at  or  before  the  time  of  entering  its  judgment  or  de- 
cree, make  and  file  a  finding  of  the  facts,  and  its  conclusions  of  law  thereon, 
stated  separately ;  and  the  record  transmitted  to  the  Supreme  Court  of 
the  United  States  on  such  an  appeal  shall  consist  only  of  the  pleadings, 
the    judgment   or   decree,    the   finding   of    facts,    and   the    conclusions   of 

loW. 

XXXVII. 

General  Provisions. 

In  proceedings  in  equity,  instituted  for  the  purpose  of  carrying  into  ef- 
fect the  provisions  of  the  act,  or  for  enforcing  the  rights  and  remedies 
given  by  it,  the  rules  of  equity  practice  established  by  the  Supreme  Court 
of  the  United  States  shall  be  followed  as  nearly  as  may  be.     In  proceed- 


GENERAL   ORDERS    IN    BANKRUPTCY.  1865 

ings  at  law,  instituted  for  the  same  purpose,  the  practice  and  procedure  in 
cases  at  law  shall  be  followed  as  nearly  as  may  be.  But  the  judge  may,  by 
special  order  in  any  case,  vary  the  time  allowed  for  return  of  process,  for 
appearance  and  pleading,  and  for  taking  testimony  and  publication,  and 
may  otherwise  modify  the  rules  for  the  preparation  of  any  particular  case 
so  as  to  facilitate  a  speedy  hearing. 

XXXVIII. 
Forms. 

The  several  forms  annexed  to  these  general  orders  shall  be  observed 
and  used,  with  such  alterations  as  may  be  necessary  to  suit  the  circum- 
stances of  any  particular  case. 


OFFICIAL  FORMS  IN  BANKRUPTCY. 


[N.  B. — Oaths  required  by  the  act,  except  upon  hearings  in  court,  may  be  ad- 
ministered by  referees  and  by  officers  authorized  to  administer  oaths  in  proceed- 
ings before  the  courts  of  the  United  States,  or  under  the  laws  of  the  State  where 
the  same  are  to  be  taken.     Bankrupt  Act  of  1898,  c.  4,  s.  20.] 


[Form  No.  1.] 

Debtor's  Petition. 

To  the  Honorable , 

Judge  of  the  District  Court  of  the  United  States 
for  the District  of : 

The  petition  of ,  of ,  in  the  county  of ,  and 

district    and    State    of    ,    [state    occupation],    respectfully 

represents : 

That  he  has  had  his  principal  place  of  business  [or  has  resided,  or  has 
had  his  domicil]  for  the  greater  portion  of  six  months  next  imme- 
diately preceding  the  filing  of  this  petition  at ,  within  said  judicial 

district ;  that  he  owes  debts  which  he  is  unable  to  pay  in  full ;  that  he  is 
willing  to  surrender  all  his  property  for  the  benefit  of  his  creditors  except 
such  as  is  exempt  by  law,  and  desires  to  obtain  the  benefit  of  the  acts  of 
Congress  relating  to  bankruptcy. 

That  the  schedule  hereto  annexed,  marked  A,  and  verified  by  your  pe- 
titioner's oath,  contains  a  full  and  true  statement  of  all  his  debts,  and 
(so  far  as  it  is  possible  to  ascertain)  the  names  and  places  of  residence  of 
his  creditors,  and  such  further  statements  concerning  said  debts  as  are 
required  by  the  provisions  of  said  acts : 

That  the  schedule  hereto  annexed,  marked  B,  and  verified  by  your 
petitioner's  oath,  contains  an  accurate  inventory  of  all  his  property,  both 
real  and  personal,  and  such  further  statements  concerning  said  property 
as  are  required  by  the  provisions  of  said  acts : 

Wherefore  your  petitioner  prays  that  he  may  be  adjudged  by  the  court 
to  be  a  bankrupt  within  the  purview  of  said  acts. 


,  Attorney. 

United  States  of  America,  District  of ,  ss : 

I, ,  the  petitioning  debtor  mentioned  and  described  in  the 

foregoing  petition,  do  hereby  make  solemn  oath  that  the  statements  con- 
tained therein  are  true  according  to  the  best  of  my  knowledge,  information, 
and  belief. 

,  Petitioner. 

Subscribed  and  sworn  to  before  me  this  ....  day  of ,  A,  D.  19. .  . 


(Official  character.) 


1870 


REMINGTON  ON  BANKRUPTCY. 


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OFFICIAL  FORMS   IN  BANKRUPTCY. 


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REMINGTON  ON  BANKRUPTCY. 


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OFFlCIAIv  I^ORMS  IN  BANKRUPTCY. 


1873 


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1875 


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REMINGTON  ON  BANKRUPTCY. 


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1878 


REMINGTON  ON  BANKRUPTCY. 


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1880 


REMINGTON  ON  BANKRUPTCY. 


Schedule;  B.  (6) 

Books,  papers,  deeds,  and  zvritings  relating  to  bankrupt's 
business  and  estate. 

The  following  is  a  true  list  of  all  books,  papers,  deeds  and  writings  relating 
to  my  trade,  business,  dealings,  estate,  and  effects,  or  any  part  thereof,  which, 
at  the  date  of  this  petition,  are  in  my  possession  or  under  my  custody  and  con- 
trol, or  which  are  in  the  possession  or  custody  of  any  person  in  trust  for  me, 
or  for  my  use,  benefit,  or  advantage;  and  also  of  all  others  which  have  been 
heretofore,  at  any  time,  in  my  possession,  or  under  my  custody  or  control,  and 
which  are  now  held  by  the  parties  whose  names  are  hereinafter  set  forth,  with 
the  reason  for  their  custody  of  the  same. 


Books. 

Deeds. 

Papers. 

, ,  Petitioner. 


Oath  to  Schedule  B. 

United  States  of  America,  District  of ,  ss : 

On  this    day  of   ,   A.  D.  19. .,  before    me  personally  came 

,  the  person  mentioned  in  and  who  subscribed  to  the  fore- 
going schedule,  and  who,  being  by  me  first  duly  sworn,  did  declare  the 
said  schedule  to  be  a  statement  of  all  his  estate,  both  real  and  personal, 
in  accordance  with  the  acts  of  Congress  relating  to  bankruptcy. 


[Official  character.] 


OFFICIAL   FORMS   IN   BANKRUPTCY. 


1881 


Summary  of  Debts  and  Assets. 
(From  the  statements  of  the  bankrupt  in  Schedules  A  and  B.) 


Schedule  A. 
Schedule  A. 

Schedule  A. 
Schedule  A. 
Schedule  A. 
Schedule  A. 
Schedule  A. 

Schedule  A. 


Schedule  B 
Schedule  B 
Schedule  B 
Schedule  B 
Schedule  B 
Schedulei'B 
Schedule  B 
Schedule  B 
Schedule  B 
Schedule  B 
Schedule  B 
Schedule  B 
Schedule  B 
Schedule  B 
Schedule  B 
Schedule  B 
Schedule  B 
Schedule  B 
Schedule  B 
Schedule  B 
Schedule  B 


1  (1)  Taxes   and   debts   due   United    States.... 
1  (2)  Taxes  due  States,  counties,  districts,  and 

municipalities    

1  (3)  Wa^es    

1  (4)  Other  debts   preferred  by   law 

2  Secured    claims 

3  Unsecured  claims 

4  Notes  and  bills  which   ought  to  be  paid 

by  other  parties  thereto 

5  Accommodation   paper 

Schedule  A,  total 

1  Real  estate 

2  a      Cash  on  hand 

2b  Bills,  promissory  notes,  and  securities.. 

2  c      Stock  in  trade 

2  d      Household   goods,    etc 

2  e      Books,  prints,  and  pictures 

2f      Horses,  cows,  and  other  animals 

2  g      Carriages  and  other  vehicles 

2h      Farming   stock    and    implements 

2  i       Shipping  and  shares  in  vessels 

2  k      Machinery,  tools,  etc 

2  1  Patents,   copyrights,   and  trade-marks... 

2  m     Other    personal    property 

3  a      Debts  due  on  open  accounts 

3  b      Stocks,  negotiable  bonds,  etc 

3  c      Policies   of  insurance 

3  d      Unliquidated    claims 

3  e      Deposits  of  money  in  banks  and  elsewhere 

4  Property  in  reversion,  remainder,  trust,  etc. 

5  Property  claimed  to  be  excepted 

6  Books,  deeds,  and  papers 

Schedule  B,  total 


1882  remington  on  bankruptcy. 

[Form  Xo.  2.] 

Partnership  Petition. 

To  the  Honorable , 

Judge  of  the  District  Court  of  the  United  States 
for  the District  of : 

The  petition  of respectfully  represents : 

That  your  petitioners  and have  been  partners  under  the 

firm  name  of ,  having  their  principal  place  of  business  at 

,  in  the  county  of and  district  and  State  of for  the 

greater  portion  of  the  six  months  next  immediately  preceding  the  filing 
of  this  petition;  that  the  said  partners  owe  debts  which  they  are  unable 
to  pay  in  full ;  that  your  petitioners  are  willing  to  surrender  all  their  prop- 
erty for  the  benefit  of  their  creditors,  except  such  as  is  exempt  by  law, 
and  desire  to  obtain  the  benefit  of  the  acts  of  Congress  relating  to  bank- 
ruptcy. 

That  the  schedule  hereto  annexed,  marked  A,  and  verified  by    

oath,  contains  a  full  and  true  statement  of  all  the  debts  of  said  partners, 
and,  as  far  as  possible,  the  names  and  places  of  residence  of  their  creditors, 
and  such  further  statements  concerning  said  debts  as  are  required  by  the 
provisions  of  said  acts. 

That  the  schedule  hereto  annexed,  marked  B,  verified  by  ....  oath, 
contains  an  accurate  inventory  of  all  the  property,  real  and  personal,  of 
said  partners,  and  such  further  statements  concerning  said  property  as 
are  required  by  the  provisions  of  said  acts. 

And  said further  states  that  the  schedule  hereto  annexed, 

marked  C,  verified  by  his  oath,  contains  a  full  and  true  statement  of  all 
his  individual  debts,  and,  as  far  as  possible,  the  names  and  places  of 
residence  of  his  creditors,  and  such  further  statements  concerning  said 
debts  as  are  reqviired  by  the  provisions  of  said  acts ;  and  that  the  schedule 
hereto  annexed,  marked  D,  verified  by  his  oath,  contains  an  accurate 
inventory  of  all  his  individual  property,  real  and  personal,  and  such  further 
statements  concerning  said  property  as  are  required  by  the  provisions  of 
said  acts. 

And  said further  states  that  the  schedule  hereto  annexed, 

marked  E.  verified  by  his  oath,  contains  a  full  and  true  statement  of  all 
his  individual  debts,  and  as  far  as  possible,  the  names  and  places  of 
residence  of  his  creditors,  and  such  further  statements  concerning  said 
debts  as  are  required  by  the  provisions  of  said  acts ;  and  that  the  schedule 
hereto  annexed,  marked  F,  verified  by  his  oath,  contains  an  accurate  in- 
ventory of  all  his  individual  property,  real  and  personal,  and  such  further 
statements  concerning  said  property  as  are  required  by  the  provisions  of 
said  acts. 

And  said further  states  that  the  schedule  hereto,  marked 

G,  verified  by  his  oath,  contains  a  full  and  true  statement  of  all  his  in- 


OFFICIAL   FORMS   IN   BANKRUPTCY.  1883 

dividual  debts,  and,  as  far  as  possible,  the  names  and  places  of  residence 
of  his  creditors,  and  such  further  statements  concerning  said  debts  as  are 
required  by  the  provisions  of  said  acts ;  and  that  the  schedule  hereto 
annexed,  marked  H,  verified  by  his  oath,  contains  an  accurate  inventory 
of  all  his  individual  property,  real  and  personal,  and  such  further  state- 
ments concerning  said  property  as  are  required  by  the  provisions  of  said 
acts. 

And  said further  states  that  the  schedule  hereto  annexed, 

marked  J,  verified  by  his  oath,  contains  a  full  and  true  statement  of  all 
•his  individual  debts,  and,  as  far  as  possible,  the  names  and  places  of 
residence  of  his  creditors,  and  such  further  statements  concerning  said 
debts  as  are  required  by  the  provisions  of  said  acts,  and  that  the  schedule 
hereto  annexed,  marked  K,  verified  by  his  oath,  contains  an  accurate 
inventory  of  all  his  individual  property,  real  and  personal,  and  such 
further  statements  concerning  said  property  as  are  required  by  the  pro- 
visions of  said  acts. 

Wherefore  your  petitioners  pray  that  the  said  firm  may  be  adjudged  by 
a  decree  of  the  court  to  be  bankrupts  within  the  purview  of  said  acts. 


Petitioners. 
,  Attorney.  .  . 


,  the  petitioning  debtors  mentioned  and  described  in  the 

foregoing  petition,  do  hereby  make  solemn  oath  that  the  statements  con- 
tained therein  are  true  according  to  the  best  of  their  knowledge,  informa- 
tion, and  belief. 


Petitioners. 
Subscribed  and  sworn  to  before  me  this  ....  day  of ,  A.  D.  19. 


[Official  character.'] 

[Schedules   to   be   annexed   corresponding   with   schedules   under   Form 
No.  1.] 


1884  REMIXGTOX  ox  BAXKRUPTCY. 

[Form  No  3.] 

Creditor's  Petition. 

To  the  Honorable    ,  Judge  of  the   District  Court  of  the 

United  States  for  the  ....  district  of : 

The  petition  of ,  of ,  and ,  of .. 

and of ,  respectfully  shows : 

That    ,  of    ,  has   for  the  greater  portion  of  six 

months  next  preceding-  the  date  of  filing  this  petition,  had  his  principal, 

place  of  business,  [or  resided,  or  had  his  domicil]  at ,  in  the  county 

of and  State  and  district  aforesaid,  and  owes  debts  to  the  amount 

of  $1,000.* 

That  your  petitioners  are  creditors  of  said ,  having  prov- 
able claims  amounting  in  the  aggregate,  in  excess  of  securities  held  by 
them,  to  the  sum  of  $500.  That  the  nature  and  amount  of  your  petitioners' 
claims  are  as  follows  : 

And  your  petitioners  further  represent  that  said is  in- 
solvent,  and   that   within   four   months   next   preceding   the   date   of   this 

petition  the  said committed  an  act  of  bankruptcy,  in  that 

he  did  heretofore,  to  wit,  on  the  ....  day  of 

Wherefore  your  petitioners  pray  that  service  of  this  petition,  with  a 

subpoena,  may  be  made  upon ,  as  provided  in  the  acts  of 

Congress  relating  to  bankruptcy,  and  that  he  may  be  adjudged  by  the  court 
to  be  a  bankrupt  within  the  purview  of  said  acts. 


Petitioners. 
Attornev. 


United  States  of  America,  District  of ss: 

, .., ,  being  three  of  the  peti- 
tioners above  named,  do  hereby  make  solemn  oath  that  the  statements 
contained  in  the  foregoing  petition,  subscribed  by  them,  are  true. 

Before  me, ,  this day  of ,  19. .  . 


[Official  character.] 


*[And  is  not  a  wage-earner  nor  chiefly  engaged  in  farming  or  the  tillage  of 
the  soil;  (or,  if  a  corporation),  is  a  corporation  principally  engaged  in,  etc., ] 


of'flciaiv  forms  in  bankruptcy.  1885 

[Form  No.  4.] 

Order  to  Show  Cause  upon  Creditor's  Petition. 

In  the  District  Court  of  the  United  States  for  the  ....  District  of 

In  the  matter  of 
Bankrupt. 

In  Bankruptcy. 

Upon    consideration    of    the    petition    of    that    ....;. 

be  declared  a  bankrupt,  it  is  ordered  that  the  said 

do  appear  at  this  court,  as  a  court  of  bankruptcy,  to  be  holden  at , 

in  the  district  aforesaid,  on  the   ....   day  of .,  at  .  .   o'clock  in  the 

noon,  and  show  cause,  if  any  there  be,  why  the  prayer  of  said 

petition  should  not  be  granted ;  and 

It  is  further  ordered  that  a  copy  of  said  petition,  together  with  a  writ 

of  subpoena,  be  served  on  said ,  by  delivering  the  same  to 

him  personally  or  by  leaving  the  same  at  his  last  usual  place  of  abode  in 
said  district,  at  least  five  days  before  the  day  aforesaid. 

Witness  the  Honorable .,  judge  of  the  said  court,  and  the 

seal   thereof,    at    ,    in   said   district,    on   the    ....    day   of    , 

A.  D.  19... 


Clerk. 


[Form  No.  5.] 
Subpoena  to  Alleged  Bankrupt. 

United  States  of  America,    ....   District  of   

To ,  in  said  district,  greeting : 

For  certain  causes  offered  before  the  District  Court  of  the  United  States 
of  America  within  and  for  the  ....  district  of ,  as  a  court  of  bank- 
ruptcy, we  command  and  strictly  enjoin  you,  laying  all  other  matters  aside 
and  notwithstanding  any  excuse,  that  you  personally  appear  before  our 

said  District  Court  to  be  holden  at   ,  in  said  district,  on  the   .... 

day  of   ....,  A.  D.   19..,   to  answer  to  a    petition    filed 

by in  our  said  court,  praying  that  you  may  be  adjudged 

a  bankrupt;  and  to  do  further  and  receive  that  which  our  said  District 
Court  shall  consider  in  this  behalf.  And  this  you  are  in  no  wise  to  omit, 
under  the  pains  and  penalties  of  what  may  befall  thereon. 

Witness   the   Honorable    ,   judge  of  said  court,  and  the 

seal  thereof,  at ,  this  ....  day  of ,  A.  D.  19. . . 

Clerk. 


1886  REMINGTON  ON  BANKRUPTCY. 


[  Form  No.  6.] 

Denial  of  Bankruptcy. 

In  the  District  Court  of  the  United  States  for  the District  of  

In  the  matter  of 
Bankrupt. 

In  Bankruptcy. 

At ,  in  said  district,  on  the  ....  day  of ,  A.  D.  19. . . 

And  now  the  said appears,  and  denies  that  he  has  com- 
mitted the  act  of  bankruptcy  set  forth  in  said  petition,  or  that  he  is  in- 
solvent, and  avers  that  he  should  not  be  declared  bankrupt  for  any 
cause  in  said  petition  alleged ;  and  this  he  prays  may  be  inquired  of  by 
the  court  {or,  he  demands  that  the  same  may  be  inquired  of  by  a  jury]. 


Subscribed  and  sworn  to  before  me  this  ....  day  of  ........  A.  D.  19. . . 

> 

[Official  character.'] 


[Form  No.  7.] 

Order  for  Jury  Trial. 

In  the  District  Court  of  the  United  States  for  the District  of 

In  the  matter  of 
Bankrupt. 

In  Bankruptcy. 

At ,  in  said  district,  on  ....   day  of \,  A.  D.  19.  ., 

Upon  the  demand  in  writing  filed  by   ,  alleged  to  be  a 

bankrupt,  that  the  fact  of  the  commission  by  him  of  an  act  of  bankruptcy, 
and  the  fact  of  his  insolvency,  may  be  inquired  of  by  a  jury,  it  is  ordered, 
that  said  issue  be  submitted  to  a  jury. 

} 

Clerk. 


official  forms  in  bankruptcy.  1887 

[Form  No.  8.] 
Special  Warrant  to  Marshal. 

In  the  District  Court  of  the  United  States   for  the District  of 

In  the  matter  of 

Bankrupt. 

In  Bankruptcy. 
To  the  marshal  of  said  district  or  to  either  of  his  deputies,  greeting: 
Whereas  a  petition  for  adjuchcation  of  bankruptcy  was,  on  the  ....  day 

of ,  A.  D.  19.  . ,  filed  against ,  of  the  county  of 

and  State  of ,  in  said  district,  and  said  petition  is  still  pending ;  and 

whereas  it  satisfactorily  appears  that  said has  committed  an  act  of 

bankruptcy  [or  has  neglected  or  is  neglecting,  or  is  about  to  so  neglect 
his  property  that  it  has  thereby  deteriorated  or  is  thereby  deteriorating  or 
is  about  thereby  to  deteriorate  in  value],  you  are  therefore  authorized  and 
required  to  seize  and  take  possession  of  all  the  estate,  real  and  personal, 

of  said ,  and  of  all  his  deeds,  books  of  account,  and  papers, 

and  to  hold  and  keep  the  same  safely  subject  to  the  further  crder  of 
the  court. 

Witness  the  Honorable ji^ic^gc  of  the  said  court,  and  the 

seal    thereof,    at   ,    in    said    district,    on  the    ....   day    of    , 

A.  D.  19... 


Clerk. 
Rfturn  of  thf  Marshal  ThfrEon. 
By  virtue  of  the  within  warrant,  I  have  taken  possession  of  the  estate 

of  the  within-named ,  and  of  all  his  deeds,  books  of  account, 

and  papers  which  have  come  to  my  knowledge. 


Marslial  [or  Deputy  Marshal.]. 
Fees  and  expenses. 


1.  Service   of   warrant 

2.  Necessary  travel,  at  the  rate  of  six  cents  a  mile  each  way. .  . . 

3.  Actual  expenses  in  custody  of  property  and  other  services  as 

follows    


[Here  state  the  particulars] 


Marshal  [or  Deputy  Marshal.]. 

District  of ,  A.  D.  19... 

Personally  appeared  before  me  the  said ,  and  made  oath 

that  the  above  expenses  returned  by  him  have  been  actually  incurred  and 
paid  by  him,  and  are  just  and  reasonable. 


Referee  in  Bankruptcy. 


1888  remington  on  bankruptcy. 

[Form  No.  9.] 
Bond  of  Petitioning  Creditor. 

Know  all  men  by  these  presents  :    That  we, ,  as  principal, 

and    ,  as  sureties,  are  held  and  firmly  bound  unto    

,  in  the  full  and  just  sum  of dollars,  to  be  paid  to  the  said 

,  executors,  administrators,  or  assigns,  to  which  payment,, 

well  and  truly  to  be  made,  we  bind  ourselves,  our  heirs,  executors,  and 
administrators,  jointly  and  severally,  by  these  presents. 

Signed  and  sealed  this  ....  day  of ,  A.  D.  19. .  . 

The  condition  of  this  obligation  is  such  that  whereas  a  petition  in  bank- 
ruptcy has  been  filed  in  the  district  court  of  the  United   States   for  the 

....   district  of against  the  said   ,  and  the  said has 

applied  to  that  court  for  a  warrant  to  the  marshal  of  said  district  directing 

him  to  seize  and  hold  the  property  of  said ,  subject  to  the 

further  orders  of  said  district  court. 

Now,  therefore,  if  such  a  warrant  shall  issue  for  the  seizure  of  said  prop- 
erty, and  if  the  said shall  indemnify  the  said 

for  such  damages  as  he  shall  sustain  in  the  event  such  seizure  shall  prove 
to  have  been  wrongfully  obtained,  then  the  above  obligation  to  be  void; 
otherwise  to  remain  in  full  force  and  virtue. 

Sealed  and  delivered  in 

presence  of .  .  [seal.] 

[seal.] 

[SEAE.] 


Approved  this  ....  day  of ,  A.  D.  19. 

District  Judge. 


[Form  No.  10.] 
Bond  to  Marshal. 

Know  all  men  by  these  presents :    That  we, ,  as  principal, 

and ,  as  sureties,  are  held  and  firmly  bound  unto   

,  marshal  of  the  United  States  for  the   ....   district  of ,  in 

the  full  and  just  sum  of    dollars,  to  be  paid  to  the  said   

,  his  executors,  administrators,  or  assigns,  to  which  payment,  well 

and  truly  to  be  made,  we  bind  ourselves,  our  heirs,  executors,  and  admin- 
istrators, jointly  and  severally  by  these  presents. 

Signed  and  sealed  this  ....  day  of ,  A.  D.  19. .  . 

The  condition  of  this  obligation  is  such  that  whereas  a  petition  in  bank- 
rupcy  has  been  filed  in  the  district  court  of  the  United  States  for  the  .... 

district  of ,  against  the  said ,  and  the  said  court  has 

issued  a  warrant  to  the  marshal  of  the  United  States  for  said  district,  di- 
recting him  to  seize  and  hold  property  of  the  said ,  subject 


OFFICIAL   FORMS   IX   BANKRUPTCY.  1889 

10  the  further  order  of  the  court,  and  the  said  property  has  been  seized 
by  said  marshal  as  directed,  and  the  said  district  court  upon  a  petition  of 

said has  ordered  the  said  property  to  be  released  to  him. 

Now,  therefore,  if  the  said  property  shall  be  released  according  to  the 

said ,  and  the  said ,  being  adjudged  a  bank- 

lupt,  shall  turn  over  said  property  or  pay  the  value  thereof  in  money  to 
the  trustee,  then  the  above  obligation  to  be  void;  otherwisf  to  remain  in 
full  force  and  virtue. 

Sealed  .and  delivered  in  the 

presence  of .  .  [seal.] 

[seal.] 

[SFAL.] 

Approved  this   ....   day  of ,  A.  D.  19. .  . 


District  Judge. 


[Form  No.  11.] 

Adjudication  that  Debtor  is  not  Bankrupt. 

In  the  District  Court  of  the  United  States   for  the District  of 

In  the  matter  of 

Bankrupt. 

In  Bankniptcy. 

At in  said  district,  on  the  ....  day  of ,  A.  D.  19. .  .  before 

the  Honorable ,  judge  of  the  ....  district  of 

This  cause  came  on  to  be  heard  at ,  in  said  court,  upon  the  petition 

of that be  adjudged  a  bankrupt  within  the  true  intent  and 

meaning  of  the  acts  of  Congress  relating  to  bankruptcy,  ana  [Here  state 
the  proceedings,  zvhether  there  was  no  opposition,  or,  if  opposed,  state 
zvhat  proceedings  zvere  had.] 

And  thereupon,  and  upon  consideration  of  the  proofs  in  said  cause  [and 
the  arguments  of  counsel  thereon,  if  atiy,]  it  was  fovmd  that  the  facts  set 
forth  in  said  petition  were  not  proved ;  and  it  is  therefore  adjudged  that 

said was  not  a  bankrupt,  and  that  said  petition  be  dismissed,  with 

costs. 

Witness  the  Honorable ,  judge  of  said  court,  and  the  seal 

tl.'ereof ,  at ,  in  said  district,  on  the   ....   day  of ,  A.  D.  19. . . 

Clerk. 
2  Rem  B— 44 


1890  remington  ox  bankruptcy. 

[Form  No.  12.] 

Adjudication  of  Bankruptcy. 

In  the  District  Court  of  the  United  States   for  the District  of 

In  the  matter  of 

Bankrupt. 

In  Bankruptcy. 

At    ../....,   in  said  district,  on  the    ....    day  of    ,  A.  D.   18.., 

before  the  Honorable ,  judge  of  said  court  in  bankruptcy, 

the  petition  of that be  adjudged  a  bankrupt, 

^vithin  the  true  intent  and  meaning  of  the  acts  of  Congress  relating  to 

bankruptcy,    having   been    heard    and    duly    considered,    the    said    

is  hereby  declared  and  adjudged  bankrupt  accordingly. 

Witness   the  Honorable    ,   judge   of  said  court,   and   the 

seal    thereof,    at   ,  in    said    district,    on    the    ....    day  of    , 

A.  D.  19... 


Clerk. 


[Form  No.  13.] 
Appointment,  Oath,  and  Report  of  Appraisers. 

In  the  District  Court  of  the  United  States   for  the District  of 

In  the  matter  of 

Bankrupt. 

In  Bankruptcy. 
It  is  ordered  that ,  of , of , 

and ,  of   ,  three  disinterested  persons,  be,  and  they 

are  hereby,  appointed  appraisers  to  appraise  the  real  and  personal  .property 
belonging  to  the  estate  of  the  said  bankrupt  set  out  in  the  schedules  now 
on  file  in  this  court,  and  report  their  appraisal  to  the  court,  said  appraisal 
to  be  made  as  soon  as  may  be,  and  the  appraisers  to  be  duly  sworn. 
Witness  my  hand  this  ....  day  of ,  A.  D.  19.  .. 

Referee  in  Bankruptcy. 

....  District  of ,  ss  : 

•  Personally  appeared  the  within  named and  severally  made 

oath  that  they  will  fully  and   fairly  appraise  the  aforesaid  real  and  per- 
sonal property  according  to  their  best  skill  and  judgment. 


Subscribed  and  sworn  to  before  me  this  ....  day  of  .  .  .  .,  A.  D.  19. 


[Official  character. 1 
We,  the  undersigned,  having  been  notified  that  we  were  appointed  to 


OFFICIAI,   FORMS   IN   BANKRUPTCY.  1891 

estimate  and  appraise  the  real  and  personal  property  aforesaid,  have  at- 
tended to  the  duties  assigned  us,  and  after  a  strict  examination  and  careful 
inquiry,  we  do  estimate  and  appraise  the  same  as  follows : 


In  witness  whereof  we  hereunto  set  our  hands,  at ,  this  ....  day 

ci ,  A.  D.  19... 


[Form  No.  14.] 

Order  of  Reference. 

In  the  District  Court  of  the  United  States  for  the District  of 

In  the  matter  of 
Bankrupt. 

In  Bankruptcy. 

Whereas ,  of ,  in  the  county  of and  district 

aforesaid,  on  the   ....   day  of   ,  A.  D.  19.  .,  was  duly  adjudged  a 

bankrupt  upon  a  petition  filed  in  this  court  [or,  against]  him  on  the  .... 

day  of   ,  A.  D.   19..,  according  to  the  provisions  of  the  acts  of 

Congress  relating  to  bankruptcy. 

It  is  thereupon  ordered,  that  said  matter  be  referred  to , 

one  of  the  referees  in  bankruptcy  of  this  court,  to  take  such  further  pro- 
ceedings therein  as  are  required  by  said  acts ;  and  that  the  said    

shall  attend  before  said  referee  on  the    ....    day  of    at 

,  and  thenceforth  shall  submit  to  such  orders  as  may  be  made  by 

said  referee  or  by  this  court  relating  to  said bankruptcy. 

Witness  the  Honorable ,. ,  judge  of  said  court,  and  the  seal 

thereof,  at ,  in  said  district,  on  the  ....  day  of ,  A.  D.  19. . . 

) 

Clerk. 


1892  remington  on  bankruptcy. 

[Form  No.  15.] 

Order  of  Reference  in  Judge's  Absence. 

In  the  District  Court  of  the  United  States   for  the District  of 

In  the  matter  of 
Bankrupt. 

In  Bankruptcy. 

Whereas  on  the day  of ,  A.  D.  19.  . ,  a  petitioned  was  tiled  to 

have ,  of in  the  county  of and  district  afore- 
said, adjudged  a  bankrupt  according  to  the  provisions  of  the  acts  of  Con- 
gress relating  to  bankruptcy;  and  whereas  the  judge  of  said  court  was 
absent  fr\)m  said  district  at  the  time  of  filing  said  petition  [or,  in  case  of 
involuntary  bankruptcy,  on  the  next  day  after  the  last  day  on  which  plead- 
ings might  have  been  filed,  and  none  have  been  filed  by  the  bankrupt  or 
any  of  his  creditors],  it  is  thereupon  ordered  that  the  said  matter  be  re- 
ferred to ,  one  of  the  referees  in  bankruptcy  of  this  court, 

to  consider  said  petition  and  take  such  proceedings  therein  as  are  required 

by  said  acts ;  and  that  the  said shall  attend  before  the  said 

referee  on  the  ....  day  of ,  A.  D.  19.  . ,  at 

Witness  my  hand  and  the  seal  of  the  said  court,  at ,  in  said  dis- 
trict, on  the  ....  day  of ,  A.  D.  19..  . 


Clerk. 


[Form  No.  15.] 

Referee's  Oath  of  Office. 

I, ,  do  solemnly  swear  that  I  will  administer  justice  with- 
out respect  to  persons,  and  do  ecjual  right  to  the  poor  and  to  the  rich,  and 
that  I  will  faithfully  and  impartially  discharge  and  perform  all  the  duties 
incumbent  on  me  as  referee  in  bankruptcy,  according  to  the  best  of  my 
abilities  and  understanding,  agreeably  to  the  Constitution  and  laws  of  the 
United  States.    So  help  me  God. 

Subscribed  and  sworn  to  before  me  this  ....  day  of  .......  A.  D,  19.. . 

District  Judge. 


[Form  No.  17.] 

Bond  of  Referee. 

Know  all  men  by  these  presents :     That  we of   

as  principal,  and    of    and    

of ,  as  sureties,  are  held  and  firmly  bound  to  the 


OFFICIAL   FORMS   IN   BANKRUPTCY.  1893 

United  States  of  America  in  the  sum  of dollars,  lawful  money  of 

the  United  States,  to  be  paid  to  the  said  United  States,  for  the  payment  of 
which,  well  and  truly  to  be  made,  we  bind  ourselves,  our  heirs,  executors, 
jvnd  administrators,  jointly  and  severally,  by  these  presents. 

Signed  and  sealed  this  ....  day  of ,  A.  D.  19. .  . 

The  condition  of  this  obligation  is  such  that  whereas  the  said   

,  has  been  on  the  ....  day  of ,  A.  D.  19.  . ,  appointed  by  the 

Honorable ,  judge  of  the  district  court  of  the  United  States 

for  the   ....    district  of   ,  a  referee  in  bankruptcy,  in  and  for  the 

county  of   ,  in  said  district,  under  the  acts  of  Congress  relating  to 

bankruptcy. 

Now,  therefore,  if  the  said shall  well  and  faithfully  dis- 
charge and  perform  all  the  duties  pertaining  to  the  said  office  of  referee 
in  bankruptcy,  then  this  obligation  to  be  void ;  otherwise  to  remain  in  full 
force  and  virtue. 

Signed  and  sealed 
in  the  presence  of 

,  [L.S.] 

,  [l.  s.] 

,     [iv.    S.] 


Approved  this   ....   day  of ,  A.  D.  19. .  . 


District  Judge. 


[Form  No.  18.] 

Notice  of  First  Meeting  of  Creditors. 

In  the  District  Court  of  the  United  States  for  the  ....  District  of 

In  Bankruptcy. 

In  the  matter  of 
Bankrupt. 

Ill  Bankruptcy. 

To  the  creditors  of ,  of ,  in  the  county  of   , 

and  district  aforesaid,  a  bankrupt. 

Notice  is  hereby  given  that  on  the  ....  day  of ,  A.  D.  19.  .,  the 

said    was   duly  adjudicated   bankrupt ;   and   that  the  first 

meeting  of  his  creditors  will  be  held  at   in   ,  on  the    .... 

day  of   ..,.,  A.    D.  19..,    at    ..    o'clock    in    the    noon,    at    which 

time  the  said  creditors  may  attend,  prove  their  claims,  appoint  a  trustee, 
examine  the  bankrupt,  and  transact  such  other  business  as  may  properly 
come  before  said  meeting. 

> 

Referee  in  Bankruptcy. 

,19... 


1894  remington  on  bankruptcy. 

[Form  No.  19.] 

List  of  Debts  Proved  at  First  Meeting. 

In  the  District  Court  of  the  United  States   for  the    ....    District  of   

In  the  matter  of 
Bankrupt. 

//;  Baiiknipfcy. 

At ,  in  said  district,  on  the  ....  day  of ,  A.  D.  19. .  . 

before    ,  referee  in  bankruptcy. 

The   following  is   a  list  of   creditors  who  have   this   day  proved  their 
debts : 


Names    of    creditors. 

Residences. 

Debts    proved. 

^ 

$ 

cts. 

Referee  in  Bankruptcy. 


[Form  Nb.  20.] 

General  Letter  of  Attorney  in  Fact  when  Creditor  is  not  Repre- 
sented by  Attorney  at  Law. 

In  the  District  Court  of  the  United  States   for  the    District  of   

In  the  matter  of 

Bankrupt. 

In  Baiikruptcv. 
To : 

I'    ,  of    ,   in   the  county  of    and   State  of 

>  do  hereby  authorize  you,  or  any  one  of  you,  to  attend  the  meeting 

or  meetings  of  creditors  of  the  bankrupt  aforesaid  at  a  court  of  bank- 
ruptcy, wherever  advertised  or  directed  to  be  holden,  on  the  day  and  at 
the  hour  appointed  and  notified  by  said  court  in  said  matter,  or  at  such 
other  place  and  time  as  may  be  appointed  by  the  court  for  holding  such 
meeting  or  meetings,  or  at  which  such  meeting  or  meetings,  or  any  ad-' 
journment  or  adjournments  thereof  may  be  held,  and  then  and  there  from 
time  to  time,  and  as  often  as  there  may  be  occasion,  for  me  and  in  my 
rame  to  vote  for  or  against  any  proposal  or  resolution  that  may  be  then 


OFFICIAL  FORMS  IN  BANKRUPTCY.  1895 

submitted  under  the  acts  of  Congress  relating  to  bankruptcy;  and  in  the 
choice  of  trustee  or  trustees  of  the  estate  of  the  said  bankrupt,  and  for 
me  to  assent  to  such  appointment  of  trustee ;  and  with  Hke  powers  to 
attend  and  vote  at  any  other  meeting  or  meetings  of  creditors,  or  sitting 
cr  sittings  of  the  court,  which  may  be  held  therein  for  any  of  the  purposes 
aforesaid;  also  to  accept  any  composition  proposed  by  said  bankrupt,  in 
satisfaction  of  his  debts,  and  to  receive  payment  of  dividends  and  of 
money  due  me  under  any  composition,  and  for  any  other  purpose  in  my 
interest  whatsoever,  with  full  power  of  substitution. 

In  witness  whereof  I  have  hereunto  signed  my  name  and  affixed  my 
seal  the day  of ,  A.  D.  19. .  . 

,  [l.  s.]    - 

Signed,  sealed,  and  delivered  in  the  presence  of.  . 

Acknowledge  before  me  this  ....  day  of ,  A.  D.  19. . . 

f 

[Official  character.] 


[Form  No.  21.] 

Special  Letter  of  Attorney  in  Fact. 

In  the  matter  of 
Bankrupt. 

Ill  Bankruptcy. 
To 


I  hereby  authorize  you,  or  any  one  of  you,  to  attend  the  meeting  of 

creditors   in  this  matter,  advertised  or  directed   to  be  holden  at    , 

on  the   ....    day  of  •. ,  before    ,  or  any  adjournment  thereof, 

and  then  and  there for and  in name  to  vote  for  or 

against  any  proposal  or  resolution  that 'may  be  lawfully  made  or  passed 
al  such  meeting  or  adjourned  meeting,  and  in  the  choice  of  trustee  or 
trustees  of  the  estate  of  the  said  bankrupt. 

In  witness  whereof  I  have  hereunto  signed  my  nam€  and  affixed  my 
seal  the day  of ,  A.  D.  19'. .  . 


Signed,  sealed,  and  delivered  in  presence  of.  . 
Acknowledge  before  me  this  ....  day  of ,  A.  D.  19. .  . 


[Official  character.] 


1896 


REMINGTON  ON  BANKRUPTCY. 


[Form  No.  22.] 

Appointment  of  Trustee  by  Creditors. 

In  the  District  Court  of  the  United  States   for  the    ....    District  of' 

In  the  matter  of 
Bankrupt. 

///  Banknipicy. 

At ,  in   said   district,   on   the    ....    day  of    ,  A.   D.    19.., 

before ,  referee  in  bankruptcy. 

This  being  the  day  appointed  by  the  court  for  the  first  meeting  of  cred- 
itors in  the  above  bankruptcy,  and  of  which  due  notice  has  been  given  in 
the  [here  insert  the  names  of  the  nezvspapers  in  zvhich  notice  luas  pub- 
lished], we,  whose  names  are  hereunder  written,  being  tlie  majority  in 
r.umber  and  in  amount  of  claims  of  the  creditors  of  the  said  bankrupt, 
v/hose  claims  have  been  allowed,  and  who  are  at  present  at  this  meeting, 

do  hereby  appoint    ,   of    ,   in  the  county  of    

and  State  of ,  to  be  the  trustee   ....   of  the  said  bankrupt's  estate 

and  effects.    . 


Signatures   of  creditors. 

Residences    of    the    same. 

Amount  of  debt. 

« 

$ 

cts. 

Ordered  that  the  above  appointment  of  trustee —  be,  and  the  same  is 
hereby,  approved. 


Referee  in  Bankruptcy. 


official  forms  in  bankruptcy.  1897 

[Form  No.  23.] 

Appointment  of  Trustee  by  Referee. 

In  the  District  Court  of  the   United  States   for  the    ....    District  of   

In  the  matter  of 
Bankrupt. 

In  Bankruptcy. 

At    ,   in  said  district,   on  the    ....    day  of    ,   A.  D.    19.., 

before ,  referee  in  bankruptcy. 

This  being  the  day  appointed  by  the  court  for  the  first  meeting  of  cred- 
itors under  the  said  bankruptcy,  and  of  which  due  notice  has  been  given 
in  the  [here  insert  the  names  of  the  nczvspapers  in  zvhich  notice  zvas  pub- 
lished], 1,  the  undersigned  referee  of  the  said  court  in  bankruptcy,  sat 
at  the  time  and  place  above  mentioned,  pursuant  to  such  notice,  to  take 
the  proof  of  debts  and  for  the  choice  of  trustee  under  the  said  bankruptcy; 
and  I  do  hereby  certify  that  the  creditors  whose  claims  had  been  allowed 
and  w€re  present,  or  duly  represented,  failed  to  make  choice  of  a  trustee 

of  said  bankrupt's  estate,  and  therefore  I  do  hereby  appoint , 

of    ,  in  the  county  of   and  State  of   ,  as  trustee  of 

the  same. 


Referee  in  Bankruptcy. 


[Form  No.  24.] 

Notice  to  Trustee  of  his  Appointment. 

In  the  District  Court  of  the  United  States   for  the    ....    District  of    i 

In  the  matter  of 
Bankrupt. 

In  Bankruptcy. 

To ,  of ,  in  the  county  of ,  and  district  afore- 
said : 
I  hereby  notify  you  that  you  were  duly  appointed  trustee  [or  one  of  the 
trustees]   of  the  estate  of  the  above-named  bankrupt  at  the  first  meeting 
» of  the  creditors,  on  the  ....   day  of ,  A.  D.  19.  .,  and  I  have  ap- 
proved said  appointment.     The  penal  sum  of  your  bond  as  such  trustee 
has  been  fixed  at  dollars.     You  are  required  to  notify  me  forth- 
with of  your  acceptance  or  rejection  of  the  trust. 

Dated  at the day  of ,  x\.  D.  19. . . 


Referee  in  Bankruptcy. 


1898  remington  on  bankruptcy. 

[Form  No.  25.] 
Bond  of  Trustee. 

Know  all  men  by  these  presents :     That  we, ,  of , 

as  principal,  and ,  of ,  and ,  of , 

as  sureties,  are  held  and  firmly  bound  unto  the  United  States   of  America 

in  the  sum  of   dollars,  in  lawful  money  of  the  United  States,  to 

be  paid  to  the  said  United  States,  f©r  which  payment,  well  and  truly  to 
be  made,  we  bind  ourselves  and  our  heirs,  executors,  and  administrators, 
jointly  and  severally,  by  these  presents. 

Signed  and  sealed  this  ....  day  of ,  A.  D.  19. . . 

The  condition  of  this  obligation  is  such  that  whereas  the  above-named 

.  .  .• was,  on  the   ....    day  of   A.  D.   19.  .,  appointed 

trustee  in  the  case  pending  in  bankruptcy  in  said  court,  wherein   

is  the  bankrupt,  and  he,  the  said ,  has  accepted  said 

trust  with  all  the  duties  and  obligations  pertaining  thereunto : 

Now,  therefore,  if  the  said    ,  trustee  as  aforesaid,  shall 

obey  such  orders  as  said  court  may  make  in  relation  to  said  trust,  and 
shall  faithfully  and  truly  account  for  all  the  moneys,  assets,  and  effects 
of  the  estate  of  said  bankrupt  which  shall  come  into  his  hands  and  pos- 
session, and  shall  in  all  respects  faithfully  perform  all  his  official  duties  as 
sc'id  trustee,  then  this  obligation  to  be  void;  otherwise,  to  remain  in  full 
force  and  virtue. 

Signed  and  sealed  in 
presence  of . . 

,"[se:al.] 

,  [se;al.] 

.,    [SKAL.] 


[Form  No.  26.] 
Order  Approving  Trustee's  Bond. 

At  a  court  of  bankruptcy,  held  in  and  for  the  ....   District  of , 

a!   , ,  this  ....  day  of ,  19. .  . 

Before   ,  referee  in  bankruptcy,  in  the  District  Court  of 

the  United  States  for  the  .*. .  .  District  of 

In  the  matter  of 

Bankrupt. 

Ill  Bankruptcy. 

It  appearing  to  the  Court ,  of  ,  and  in  said  dis- 
trict, has  been  duly  appointed  trustee  of  the  estate  of  the  above-named 
bankrupt,  and  has  given  a  bond  with  sureties  for  the  faithful  performance 
of  his  official  duties,  in  the  amount  fixed  by  the  creditors  [or  by  order  of 

the  court],  to  wit,  in  the  sum  of dollars  it  is  ordered  that  the  said 

bond  be,  and  the  same  is  hereby,  approved. 


Referee  in  Bankruptcy. 


official  forms  in  bankruptcy.  1899 

[Form  No.  27.] 

Order  that  no  Trustee  be  Appointed. 

In  the  District  Court  of  the  United  States  for  the  ....  District  of 

In  the  matter  of 

Bankrupt. 

In  Bankruptcy. 
It  appearing  that  the  schedule  of  the  bankrupt  discloses  no  assets,  and 
that  no  creditor  has  appeared  at  the  first  meeting,  and  that  the  appointment 
of  a  trustee  of  the  bankrupt's  estate  is  hot  now  desirable,  it  is  hereby 
ordered  that,  until  further  order  of  the  court,  no  trustee  be  appointed  and 
no  other  meeting  of  the  creditors  be  called. 


Referee  in  Bankruptcy. 


[Form  No.  28.] 

Order  for  Examination  of  Bankrupt. 

In  the  District  Court  of  the  United  States  for  the  ....  District  of 

In  the  Matter  of 

Bankrupt. 

In  Bankruptcy. 

At ,  on  the day  of ,  A.  D.  19.  . . 

Upon   the   application   of    ,  trustee   of   said   bankrupt  {or 

creditor  of  said  bankrupt],  it  is  ordered  that  said  bankrupt  attend  before 

,  one  of  the  referees  in  bankruptcy  of  this  court,  at 

on  the  ....  day  of ,  at  .  .  o'clock  in  the noon,  to  submit  to 

examination  under  the  acts  of  Congress  relating  to  bankruptcy,  and  that 
i.  copy  of. this  order  be  delivered  to  him,  the  said  bankrupt,  forthwith. 


Referee  in  Bankruptcy. 


[Form  No.  29.] 
Examination  of  Bankrupt  or  Witness. 

In  the  District  Court  of  the  United  States  for  the  ....  District  of 

In  the  Matter  of 

Bankrupt. 

///  Bankruptcy. 
At ,  in  said  district,  on  the  ....   day  of ,  A.  D.  19.  .,  be- 
fore   ,  one  of  the  referees  in  bankruptcy  of  said  court. 

,  of ,  in  the  county  of ,  and  State  of , 

being  duly  sworn  and  examined  at  the  time  and  place  above  mentioned^ 
upon  his  oath  says.     {Here  insert  substance  of  examination  of  party.'] 


Referee  in  Bankruptcy. 


1900  remington  on  bankruptcy. 

[Form  No.  30.] 
Summons  to  Witness. 
To : 

Whereas ,  of ,  in  the  county  of ,  and  State 

of ,  has  been  duly  adjudged  bankrupt,  and  the  proceeding  in  bank- 
ruptcy is  pending  in  the  District  Court  of  the  United  States  for  the 

District  of 

These  are  to  require  you,  to  whom  this  summons  is  directed,  personally 

to  be  and  appear  before ,  one  of  the  referees  in  bankruptcy 

cf  the  said  court,  at ,  on  the  ....  day  of ,  at  .  .   o'clock  m 

the  noon,  then  and  there  to  be  examined  in  relation  to  said  bank- 
ruptcy. 

\\'itness  the  Honorable ,  judge  of  said  court,  and  the  seal  thereof 

at ,  this day  of ,  A.  D.  19. . . 


Clerk. 

Return  oe  Summons  to  Witness. 

In  the  District  Court  of  the  United  States  for  the  ....  District  of 

In  the  flatter  of 

Bankrupt. 

Ill  Bankruptcy. 

On  this  ....  day  of ,  A.  D.  19. . ,  before  me  came , 

of ,  in  the  county  of and  State  of ,  and  makes  oath, 

and    says    that    did,    on     ,  the    ....    day  of    ,  A.   D.    19.., 

personally  serve ,  of ,  in  the  county  of  and 

State  of ,  with  a  true  copy  of  the  summons  hereto  annexed,  by  de- 
livering the  same  to  him;  and  he  further  makes  oath,  and  says  that  he 
M  not  interested  in  the  proceeding  in  bankruptcy  named  in  said  summons. 


Subscribed  and  sworn  to  before  me  this  ....  day  of ,  A.  D.  19. 


[Form  No.  31.] 

Proof  of  Unsecured  Debt. 

In  the  District  Court  of  the  United  States  for  the  ....  District  of 

In  the  Matter  of 

Bankrupt. 

In  Bankruptcy. 

At   ,  in  said  district  of   ,  on  the   day  of   ,  A. 

D.   19.  . ,  came    ,  of    in  the  county    of     ,    in 

said    district   of    ,   and   made   oath,   and    says   that    

the  person  by    [or  against]    whom  a  petition   for  adjudication  of  bank- 


Or'I'iCIAIv   FORMS   IN   BANKRUPTCY.  1901 

ruptcy  has  been  filed,  was  at  and  before  the  filing  of  said  peti- 
tion and  still  is,  justly  and  truly  indebted  to  said  deponent  in  the  sum  of 
dollars;  that  the  consideration  of  said  debt  is  as  follows : 

that  no  part  of  said  debt  has  been  paid   [except that  there  are  no 

set-offs  or  counterclaims  to  the  same  [except 

and  that  deponent  has  not,  nor  has  any  person  by  his  order,  or  to  his 
knowledge  or  belief,  for  his  use,  had  or  received  any  manner  of  security 
for  said  debt  whatever. 


Creditor. 
Subscribed  and  sworn  to  before  me  this  ....  day  of ,  A.  D.  19. , 


[Official  character.'] 


[Form  No.  Z2.] 

Proof  of  Secured  Debt. 

In  the  District  Court  of  the  United  States  for  the  ....  District  of 

In  the  Matter  of 
Bankrupt. 

In  Bankruptcy. 

At ,  in  said  district  of ,  on  the  ....  day  of ,  A.  D. 

19 .  . ,  came    ,  of   ,  in  the  county  of    ,  in  said 

district  of ,  and  made  oath,  and  says  that ,  the  person 

by  [or  against]  whom  a  petition  for  adjudication  of  bankruptcy  has  been 
filed,  was  at  and  before  the  filing  of  said  petition,  and  still  is,  justly  and 

truly  indebted  to  said  deponent,  in  the  sum  of   dollars ;  that  the 

consideration  of  said  debt  is  as  follows : 



that  no  part  of  said  debt  has  been  paid   [except 

that  there  are  no  set-offs  or  counterclaims  to  the  same  [except 


c.nd  that  the  only  securities  held  by  this  deponent  for  said  debt  are  the 
following :       


Creditor. 
Subscribed  and  sworn  to  before  me  this  ....  day  of ,  A.  D.  19. . . 


[Official   character.'] 


1902  remington  on  bankruptcy. 

[Form  No.  33.] 
Proof  of  Debt  Due  Corporation. 

In  the  District  Court  of  the  United  States  for  the  ....  District  of 

In  the  Matter  of 

Bankrupt. 

In  Bankruptcy. 

At ,  in  said  district  of ,  on  the  ....  day  of ,  A.  D. 

19.  . ,  came ,  of ,  in  the  county  of ,  and  State 

of   ,  and  made  oath  and  says  that  he  is    of  the   ,  a 

corporation  incorporated  by  and  under  the  laws  of  the  State  of   , 

and  carrying  on  business  at ,  in  the  county  of ,  and  State  of 

,  and  that  he  is  duly  authorized  to  make  this  proof,  and  says  that 

the  said ,  the  person  by   [or  against]   whom  a  petition  for 

adjudication  of  bankruptcy  has  been  filed,  was  at  and  before  the  filing  of 
the  said  petition,  and  still  is,  justly  and  truly  indebted  to  said  corporation 

in  the  sum  of    dollars ;  that  the  consideration  of  said  debt  is  as 

follow^s :      


that  no  part  of  said  debt  has  been  paid  [except 

that  there  are  no  set-offs  or  counterclaims  to  the  same  [except 


and  that  said  corporation  has  not,  nor  has  any  person  by  its  order,  or  to 
the  knowledge  or  belief  of  said  deponent,  for  its  use,  had  or  received  any 
manner  of  security  for  said  debt  whatever. 


of  said  Corporation.. . 

Subscribed  and  sworn  to  before  me  this  ....  day  of ,  A.  D.  19.. . 


[Official  character.] 


[Form  No.  34.] 
Proof  of  Debt  by  Partnership. 

In  the  District  Court  of  the  United  States  for  the District  of 

In  the  flatter  of 

Bankrupt.  * 

In  Bankruptcy. 

At ,  in  said  district  of ,  on  the day  of A.  D. 

19, . ,  came    of   in  the  county  of   ,  in  said 

district  of ,  and  made  oath  and  says  that  he  is  one  of  the  firm  of 

,  consisting  of    himself    and   ,  of   ,  in 

the  county  of and  State  of ;  that  the  said .' .  . , 

the   person   by    [or  against]  whom   a   petition   for   adjudication  of   bank-  . 
ruptcy  has  been  filed,  was  at  and  before  the  filing  of  said  petition,  and  still 


•     OFFICIAL   FORMS   IN   BANKRUPTCY.  1903 

is,  justly  and  truly  indebted  to  this  deponent's  said  firm  in  the  sum  of 
dollars ;  that  the  consideration  of  said  debt  is  as  follows : 

that  no  part  of  said  debt  has  been  paid  [except 


that  there  are  no  set-offs  or  counterclaims  to  the  same  [except 

and  this  deponent  has  not,  nor  has  his  said  firm,  nor  has  any  person  by  their 
order,  or  to  this  deponent's  knowledge  or  belief,  for  their  use,  had  or  re- 
ceived any  manner  of  security  for  said  debt  whatever. 


Creditor. 
Subscribed  and  sworn  to  before  me  this  ....  day  of  ; ,  A.  D.  19. .  . 


[Official  character.] 


[Form  No.  3S.] 
Proof  of  Debt  by  Agent  or  Attorney. 

In  the  District  Court  of  the  United  States  for  the  ....  District  of 

In  the  Matter  of 

Bankrupt. 

In  Bankruptcy. 

At ,  in  said  district  of ,  on  the  ....  day  of ,  A.  D. 

19.  . ,  came     ,  of ,  in  the    county  of ,  and  State 

of ,  attorney   [or    authorized    agent]    of ,  in    the    county  of 

, ,  and  State  of ,  and  made  oath  and  says  that , 

the  person  by  [or  against]  whom  a  petition  for  adjudication  of  bankruptcy 
has  been  filed,  was  at  and  before  the  filing  of  said  petition,  and  still  is, 

justly  and  truly  indebted  to  the  said ,  in  the  sum  of 

dollars ;  that  the  consideration  of  said  debt  is  as  follows :    


that  no  part  of  said  debt  has  been  paid  [except 


?.iid  that  this  deponent  has  not,  nor  has  any  person  by  his  order,  or  to  this 
deponent's  knowledge  or  belief,  for  his  use  had  or  received  any  manner 
of  security  for  said  debt  whatever.  And  this  deponent  further  says,  that 
this  deposition  can  not  be  made  by  the  claimant  in  person  because 

and  that  he  is  duly  authorized  by  his  principal  to  make  this  affidavit,  and 
that  it  is  within  his  knowledge  that  the  aforesaid  debt  was  incurred  as  and 
for  the  consideration  above  stated,  and  that  such  debt,  to  the  best  of  his 
knowledge  and  belief,  still  remains  unpaid  and  unsatisfied. 

Subscribed  and  sworn  to  before  me  this  ....  day  of ,  A.  D.  19. . . 

[Official  character.] 


1904  remington  on  bankruptcy.        • 

[Form  No.  36.] 
Proof  of  Secured  Debt  by  Agent. 

In  the  District  Court  of  the  United  States  for  the  ....  District  of 

In  the  Matter  of 

Bankrupt. 

In  Bankruptcy. 

At ,  in  said  district  of ,  on  the  ....  day  of ,  A.  D. 

19.  . ,  came ,  of in  the  county  of ,  and  State 

of    ,  attorney    [or,  authori\zed  agent]    of    ,  in  the  county  of 

,  and  State  of ,  and  made  oath,  and  says  that ■ . , 

the  person  by  [or,  against]  whom  a  petition  for  adjudication  of  bankruptcy 
has  been  filed,  was,  at  and  before,  the  fiHng  of  said  petition,  and  still  is, 

justly  and  truly  indebted  to  the  said in  the  sum  of 

dollars ;  that  the  consideration  of  said  debt  is  as  follows :    

that  no  part  of  said  debt  has  been  paid  [except 


that  there  are  no  set-offs  or  counter  claims  to  the  same  [except 

and  that  the  only  securities  held  by  said for  said  debt  are  the  fol- 

l(jwing : 

and  this  deponent  further  says  that  this  deposition  can  not  be  made  by  the 
claimaint  in  person  because   

and  that  he  is  duly  authorized  by  his  principal  to  make  this  deposition,  and 
that  it  is  within  his  knowledge  that  the  aforesaid  debt  was  incurred  as  and 
for  the  consideration  above  stated. 


Subscribed  and  sworn  to  before  me  this  ....  day  of ,  A.  D.  19. .  . 

[Official  character.] 


[Form  Xo.  37.] 
Affidavit  of  Lost  Bill,  or  Note. 

In  the  District  Court  of  the  United  States  for  the  ....  District  of 

In  the  ^Matter  of 

Bankrupt. 

In  Bankruptcy. 

On  this  . . .  day  of ,  A.  D.  19 . . ,  at ,  came , 

of ,  in  the  county  of ,  and  State  of ,  and  makes  oath 

and  says  that  the  bill  of  exchange  [or  note],  the  particulars  whereof  are 
underwritten,  has  been  lost  under  the  following  circumstances,  to  wit, 


OFFICIAL  FORMS  IN  BANKRUPTCY. 


1905 


and  that  he,  this  deponent,  has  not  been  able  to  find  the  same ;  and  this 

deponent  further  says  that  he  has  not,  nor  has  the  said ,  or 

any  person  or  persons  to  their  use,  to  this  deponent's  knowledge  or  belief, 
negotiated  the  said  bill  [or  note],  nor  in  any  manner  parted  with  or  as- 
signed the  legal  or  beneficial  interests  therein,  or  any  part  thereof;  and 
that  he,  this  deponent  is  the  person  now  legally  and  beneficially  interested 
in  the  same. 

Bill  or  note  above  referred  to. 


Date. 


Drawer    or    maker. 


Acceptor. 


Sum. 


Subscribed  and  sworn  to  before  me  this  ....  day  of ,  A.  D.  19. , 

> 

[Official  character.'] 


[Form  No.  38.] 
Order  Reducing  Claim. 

Tn  the  District  Court  of  the  United  States  for  the District  of 

In  the  Matter  of 

. . .' Bankrupt. 

In  Bankruptcy. 

At ,  in  said  district,  on  the  ....  day  of ,  x\.  D.  19. .  . 

Upon  the  evidence    submitted  to  this    court  upon  the    claim    of 

against  said  estate  [and,  if  the  fact  he  so,  upon  hearing  counsel  thereon] . 
it  is  ordered,  that  the  amount  of  said  claim  be  reduced  from  the  sum  of 

,  as  set  forth  in  the  affidavit  in  proof  of  claim  filed  by  said  creditor 

in  said  case,  to  the  sum  of ,  and  that  the  latter-named  sum  be  en- 
tered upon  the  books  of  the  trustee  as  the  true  sum  upon  which  a  dividend 
shall  be  computed  [//  zvith  interest,  with  interest  thereon  from  the  .... 
day  of ,  A.  D.  19...] 

Referee  in  Bankruptcy. 
2  Rem  B— 45 


1906 


REMINGTON   ON   BANKRUPTCY. 


[Form  No.  39.] 
Order  Expunging  Claim. 

In  the  District  Court  of  the  United  States  for  the District  of 

In  the  matter  of 

Bankrupt. 

In  Bankruptcy. 

At  ..'....,  in  said  district,  on  the  ....  day  of ,  A.  D.  19. .  . 

Upon  the  evidence    submitted    to  the    court  upon  the  claim    of   

against  said  estate  [and,  if  the  fact  be  so,  upon  hearing  counsel  thereon], 
it  is  ordered,  that  said  claim  be  disallowed  and  expunged  from  the  list  of 
claims  upon  the  trustee's  record  in  said  case. 


Referee  in  Bankruptcy. 


^  [Form  Xo.  40.] 

List  of  Claims  and  Dividends  to  be  Recorded  by  Referee  and  by 
him  delivered  to  Trustee. 

In  the  District  Court  of  the  United  States  for  the District  of 

In  the  Matter  of 

Bankrupt. 

/;/  Bankruptcy. 

A   list  of  debts  proved  and  claimed  under  the   bankruptcy  of   

,  zuith diz'idend  at  the  rate  of  ...  .  per  cent,  this  day  declared 

thereon  by ,  a  referee  in  bankruptcy. 


No. 


Creditors. 
[To  be  placed  alphabetically,  and  the 
names  of  all  the  parties  to  the  proof  to 
be  carefully  set  forth.] 


Sum    proved. 


cts. 


Dividend. 


cts. 


At ,  in  said  (hstrict,  on  the  ....  day  of ,  A.  D.  19. . . 

> 

Referee  in  Bankruptcy. 


offlciaiv  forms  in  bankruptcy.  1907 

[Form  No.  41.] 
Notice  of  Dividend. 

In  the  District  Court  of  the  United  States  for  the  ....  District  of 

In  the  Matter  of 

Bankrupt. 

In  Bankruptcy. 

At ,  on  the  ....  day  of ,  A.  D.  19. . .    To 

Creditor  of ,  bankrupt : 

I  hereby  inform  you  that  you  may,  on  application  at  my  office, , 

on  the  ....  day  of ,  or  on  any  day  thereafter,  between  the  hours  of 

,  receive  a  warrant  for  the dividend  due  to  you  out  of  the 

above  estate.     If  you  can  not  personally  attend,  the  warrant  will  be  de- 
livered to  your  order  on  your  filing  up  and  signing  the  subjoined  letter. 

,  Trustee. 

Creditor's  Letter  to  Trustee. 

To , 

Trustee  in  bankruptcy  of  the  estate  of bankrupt : 

Please  deliver  to .  .  the  warrant  for  dividend  payable  out  of 

the  said  estate  to  me. 

,  Creditor. 


[Form  No.  42.] 
Petition  and  Order  for  Sale  by  Auction  of  Real  Estate. 

In  the  District  Court  of  the  United  States  for  the  ....  District  of 

In  the  matter  of 

Bankrupt. 

In  Bankruptcy. 

Respectfully  represents   ,  trustee  of  the  estate  of  said  bankrupt, 

tiiat  it  would  be  for  the  benefit  of  said  estate  that  a  certain  portion  of  the 
real  estate  of  said  bankrupt,  to  wit:  [here  describe  it  and  its  estimated 
z>alue]   should  be  sold  by  auction,  in  lots  or  parcels,  and  upon  terms  and 

conditions,   as   follows :    

Wherefore  he  prays  that  he  may  be  authorized  to  make  sale  by  auction  of 
said  real  estate  as  aforesaid. 

Dated  this day  of ,  A.  D.  19. .  . 

,  Trustee. 

The  foregoing  petition  having  been  duly  filed,  and  having  come  on  for  a 
hearing  before  me,  of  which  hearing  ten  days'  notice  was  given  by  mail  to 
creditors  of  said  bankrupt,  now,  after  due  hearing,  no  adverse  interest 

being  represented  thereat  [or  after  hearing in  favor  of  said 

petition  and in  opposition  thereto] ,  it  is  ordered  that  the 

said  trustee  be  authorized  to  sell  the  portion  of  the  bankrupt's  real  estate 
specified  in  the  foregoing  petition,  by  auction,  keeping  an  accurate  account 


1908  REMINGTON   ON   BANKRUPTCY. 

of  each  lot  or  parcel  sold  and  the  price  received  therefor  and  to  whom  sold ; 
which  said  account  he  shall  file  at  once  with  the  referee. 
Witness  my  hand  this  ....  day  of ,  A.  D.  19. .  . 


Referee  in  Bankruptcy. 


[Form  No.  43.] 
Petition  and  Order  for  Redemption  of  Property  from  Lien. 

Tn  the  District  Court  of  the  United  States  for  the  ....  District  of 

In  the  matter  of 

Bankrupt. 

In  Bankruptcy. 

Respectfully  represents    ,   trustee  of  the  estate  of  said 

bankrupt,  that  a  certain  portion  of  said  bankrupt's  estate,  to  wit :  [here 
describe  the  estate  or  property  and  its  estimated  value'\  is  subject  to  a  mort- 
gage [describe  the  mortgage^,  or  to  a  conditional  contract  [describing  it^, 
or  to  a  lien  [describing  the  origin  and  nature  of  the  lien^,  [or,  if  the  prop- 
erty be  personal  property,  has  been  pledged  or  dposited  and  is  subject  to  a 
lien]  for  [describe  the  nature  of  the  lien],  and  that  it  would  be  for  the 
benefit  of  the  estate  that  said  property  should  be  redeemed  and  discharged 
from  the  lien  thereon.     Wherefore  he  prays  that  he  may  be  empowered  to 

pay  out  of  the  assets  of  said  estate  in  his  hands  the  sum  of ,  being 

the  amount  of  said  lien,  in  order  to  redeem  said  property  therefrom. 

Dated  this day  of ,  A.  D.  19. .  . 

,  Trustee .... 

The  foregoing  petition  having  been  duly  filed  and  having  come  on  for  a 
hearing  before  me,  of  which  hearing  ten  days'  notice  was  given  by  mail  to 
creditors  of  said  bankrupt,  now,  after  due  hearing,  no  adverse  interest  be- 

mg  represented  thereat  [or  after  hearing m  favor  of  said 

petition  and in  opposition  thereto],  it  is  ordered  that  the 

said  trustee  be  authorized  to  pay  out  of  the  assets  of  the  bankrupt's  estate 

specified  in  the  foregoing  petition  the  sum  of ,  being  the  amount  of 

the  lien,  in  order  to  redeem  the  property  therefrom. 

Witness  my  hand  this  ....  day  of ,  A.  D.  19. . . 


Referee  in  Bankruptcy. 


[Form  No.  44.] 
Petition  and  Orer  for  Sale  Subject  to  Lien. 

In  the  District  Court  of  the  United  States  for  the  ....  District  of 

In  tl'ie  matter  of 

. Bankrupt. 

1)1  Bankruptcy. 
Respectfully    represents   ,  trustee    of    the  estate    of    said 


OFFICIAL   FORMS   IN   BANKRUPTCY.  1909 

bankrupt,  that  a  certain  portion  of  said  bankrupt's  estate,  to  wit:  [here 
describe  the  estate  or  property  and  its  estimated  value]  is  subject  to  a 
mortgage  [describe  mortgage],  or  to  a  conditional  contract  [describe  it], 
or  to  a  lien  [describe  the  origin  and  nature  of  the  lien],  or  [if  the  prop- 
erty be  personal  property]  has  been  pledged  or  deposited  and  is  subject  to 
a  lien  for  [describe  the  nature  of  the  lien],  and  that  it  should  be  for  the 
benefit  of  the  said  estate  that  said  property  should  be  sold,  subject  to  said 
mortgage,  lien,  or  other  incumbrance.  Wherefore  he  prays  that  he  may  be 
authorized  to  make  sale  of  said  property,  subject  to  the  incumbrance 
thereon. 

Dated  this day  of ,  A.  D.  19. . . 

,  Trustee. 

The  foregoing  petition  having  been  duly  filed  and  having  come  on  for 
li.earing  before  me,  of  which  hearing  ten  days"  notice  was  given  by  mail  to 
creditors  of  said  bankrupt,   now,   after  due  hearing,  no  adverse  interest 

being  represented  thereat  [or  after  hearing in  favor  of  said 

petition  and in  opposition  thereto] ,  it  is  ordered  that  the 

said  trustee  be  authorized  to  sell  the  portion  of  the  bankrupt's  estate  spec- 
ified in  the  foregoing  petition,  by  auction  [or,  at  private  sale],  keeping  an 
accurate  account  of  the  property  sold  and  the  price  received  therefor  and 
to  whom  sold;  which  said  account  he  shall  file  at  once  with  the  referee. 

Witness  my  hand  this  ....  day  of ,  A.  D.  19. .  . 


Referee  in  Bankruptcy. 


[Form  Xo.  45.] 

Petition  and  Order  for  Private  Sale. 

In  the  District  Court  of  the  United  States  for  the    District  of 

In  the  matter  of 

Bankrupt. 

In  Bankruptcy. 

Respectfully  represents    ,   duly  appointed  trustee  of  the 

estate  of  the  aforesaid  bankrupt. 

That  for  the  following  reasons,  to  wit, , 

it  is  desirable  and  for  the  best  interest  of  the  estate  to  sell  at  private  sale 
a  certain  portion  of  the  said  estate,  to  wit : 

Wherefore  he  prays  that  he  may  be  authorized  to  sell  the  said  propert)'' 
ai  private  sale. 

Dated  this day  of ,  A.  D.  19. .  . 

,   Trustee. 

The  foregoing  petition  having  been  duly  filed  and  having  come  on  for  a 


1910  REMINGTON   ON   BANKRUPTCY. 

hearing  before  me,  of  which  hearing  ten  days'  notice  was  given  by  mail  to 
creditors  of  said    bankrupt,    now,  after  due    hearing,  no    adverse  interest 

being  represented  thereat  [or  after  hearing in  favor  of  said 

petition  and    in  opposition  thereto] ,  it  is  ordered  that  the 

said  trustee  be  authorized  to  sell  a  portion  of  the  bankrupt's  estate  specified 
in  the  foregoing  petition,  at  private  sale,  keeping  an  accurate  account  of 
each  article  sold  and  the  price  received  therefor  and  to  whom  sold ;  which 
said  account  he  shall  file  at  once  with  the  referee. 

Witness  my  hand  this  ....  day  of ,  A.  D.  19. .  . 


Referee  in  Bankruptcy. 


[Form  No.  46.]    • 

Petition  and  Order  for  Sale  of  Perishable  Property. 

l:-j  the  District  Court  of  the  United  States  for  the District  of 

In  the  Matter  of 

Bankrupt. 

In  Bankruptcy. 

Respectfully  represents the  said  bankrupt,  [or  a  creditor, 

01  the  receiver,  or  the  trustee  of  the  said  bankrupt's  estate]. 

That  a  part  of  the  said  estate,  to  wit, 

now  in ,  is  perishable,  and  that  there  will  be  loss  if  the  same  is  not 

sold  immediately. 

Where  fore,,  he  prays  the  court  to  order  that  the  same  be  sold  immediately 
as  aforesaid. 

Dated  this day  of ,  A.  D.  19..  . 


The  foregoing  petition  having  been  duly  filed  and  having  come  on  for  a 
hearing  before  me,  of  which  hearing  ten  days'  notice  was  given  by  mail  to 
the  creditors  of  the  said  bankrupt,  [or  without  notice  to  the  creditors], 
now,  after  due  hearing,  no  adverse  interest  being  represented  thereat,   [or 

after  hearing in  favor  of  said  petition  and in 

opposition  thereto]  I  find  that  the  facts  are  as  above  stated,  and  that  the 
same  is  required  in  the  interest  of  the  estate,  and  it  is  therefore  ordered 
that  the  same  be  sold  forthwith  and  the  proceeds  thereof  deposited  in 
court. 

Witness  my  hand  this  ....  day  of ,  A.  D.  19. .  . 

Referee  in  Bankruptcy. 


official  forms  in  bankruptcy.  1911 

[Form  No.  47.] 
Trustee's  Report  of  Exempted  Property. 

In  the  District  of  the  United  States  for  the District  of 

In  the  matter  of 

Bankrupt, 

Li  Bankruptcy. 
At ,  on  the day  of ,  19. . . 

The  following  is  a  schedule  of  property  designated  and  set  apart  to  be 
retained  by  the  bankrupt  aforesaid,  as  his  own  property,  under  the  pro- 
visions of  the  acts  of  Congress  relating  to  bankruptcy- 


General   head. 

Particular   description. 

Value. 

Military     uniforms,     arms,     and 
equipments    

$ 

cts. 

Property     exempted     by     State 
laws    

,  Trustee. 


[Form  No.  48.] 
Trustee's  Return  of  No  Assets. 

In  the  District  Court  of  the  United  States  for  the    District  of 

In  the  matter  of 

Bankrupt. 

///  Bankruptcy. 

At ,  in  said  district,  on  the  ....  day  of ,  A.  D.  19. . . 

On  the  day  aforesaid,  before  me  comes ,  of   ,  in 

the  county  of and  State  of ,  and  makes  oath,  and  says  that 

lie,   as   trustee   of   the   estate   and   effects   of   the   above-named   bankrupt, 
neither  received  nor  paid  any  moneys  on  account  of  the  estate. 

Subscribed   and   sworn   to   before   me   at    ,   this    .....*.    day   oi 

A.  D.  19... 


Referee  in  Bankruptcy. 


1912 


REMINGTON   ON   BANKRUPTCY. 


d 


02 

S3 
Sh 

E-i 
o 


fe 


official  forms  in  bankruptcy.  1913 

[Form  Xo.  50.] 

Oath  to  Final  Account  of  Trustee. 

In  the  District  Court  of  the  United  States  for  the    District  of 

In  the  matter  of 

Bankrupt. 

In  Bankruptcy. 

On    this    ....    day    of    A.  D.  19..,    before    me    conies    

,   of    ,   in  the  county  of    and   State  of    ,  and 

makes  oath,  and  says  that  he  was,  on  the  ....  day  of ,  A.  D.  19.  . , 

appointed  trustee  of  the  estate  and  effects  of  the  above-named  bankrupt, 
and  that  as  such  trustee  he  has  conducted  the  settlement  of  the  said  estate. 
That  the  account  hereto  annexed  containing  ....  sheets  of  paper,  the 
first  sheet  whereof  is  marked  with  the  letter  ....  [reference  may  here  also 
he  made  to  any  prior  account  filed  by  said  trustee]  is  true,  and  such  ac- 
count contains  entries  of  every  sum  of  money  received  by  said  trustee  on 
account  of  the  estate  and  effects  of  the  above-named  bankrupt,  and  that 
the  payments  purporting  in  such  'account  to  have  been  made  by  said  trustee 
have  been  so  made  by  him.  And  he  asks  to  be  allowed  for  said  payments 
r.nd  for  commissions  and  expenses  as  charged  in  said  accounts. 

,  Trustee. .  . 

• 

Subscribed  and  sworn  to  before  me  at ,  in  said  district  of , 

tl}is   ....  day  of ,  A.  D.  19... 


[Official  character.] 


[Form  Xo.  51.] 

Order  Allowing  Account  and  Discharging  Trustee. 

In  the  District  Court  of  the  United  States  for  the    District  of 

In  the  matter  of 

, Bankrupt. 

/;/  Bankruptcy. 

The  foregoing  account  having  been  presented  for  allowance,  and  having 
been  examined  and  found  correct,  it  is  ordered  that  the  same  be  allowed, 
and  that  the  said  trustee  be  discharg^ed  of  his  trust. 


Referee  in  Bankruptcy, 


1914  remington  on  bankruptcy. 

[Form  No.  52.] 

Petition  for  Removal  of  Trustee. 

In  the  District  Court  of  the  United  States  for  the    District  of 

In  the  matter  of 

Bankrupt. 

In  Bankruptcy. 

To  the  Honorable , 

Judge  of  the  District  Court  for  the District  of : 

The  petition  of one  of  the  creditors  of  said  bankrupt, 

respectfully  represents  that  it  is  for  the  interest  of  the  estate  of  said  bank- 
rupt that   ,  heretofore  appointed  trustee  of  said  bankrupt's  estate, 

should  be  removed  from  his  trust,  for  the  causes  following,  to  wit:  [here 
set  forth  the  particular  cause  or  causes  for  zchich  such  removal  is  re- 
quested.] 

Wherefore    pray  that  notice  may  be  served  upon  said 

,  trustee  as  aforesaid,  to  show  cause,  at  such  time  as  may  be  fixed 

by  the  court,  why  an  order  should  not  be  made  removing  him  from  said 
trust. 


[Form  Xo.  53.] 

Notice  of  Petition  for  Removal  of  Trustee. 

In  the  District  Court  of  the  United  States  for  the    District  if 

In  the  matter  of' 
Bankrupt. 

In  Bankruptcy. 

At ,  on  the day^  of ,  A.  D.  19 .  . . 

To , 

Trustee  of  the  estate  of ,  bankrupt : 

You  are  hereby  notified  to  appear  before  this  court,  at   ,  on  the 

....  day  of ,  A.  D.  19.  .,  at  .  .  o'clock  .  ..  m.,  to  show  cause  (if 

any  you  have)  why  you  should  not  be  removed  from  your  trust  as  trust-ee 

as  aforesaid,  according  to  the  prayer  of  the  petition  of ,  one 

of  the  creditors  of  said  bankrupt,  filed  in  this  court  on  the   ....   day  of 

,  A.  D.  19.  .,  in  which  it  is  alleged  [here  insert  the  allegation  of  the 

petition] . 

Clerk. 


official  forms  in  bankruptcy.  1915 

[Form  No.  54.] 

Order  for  Removal  of  Trustee. 

In  the  District  Court  of  the  United  States  for  the    District  of 

In  the  matter  of 

Bankrupt. 

In  Bankruptcy. 

Whereas   ,  of   ,  did,  on  the   ....   day  of   , 

A.  T).  19.  .,  present  his  petition  to  this  court,  praying  that  for  the  reasons 

therein  set  forth, ,  the  trustee  of  the  estate  of  said 

,  bankrupt,  might  be  removed : 

Now,  therefore,  upon  reading  the  said  petition  of  the  said 

c«nd  the  evidence  submitted  therewith,  and  upon  hearing  counsel  on  behalf 
of  said  petitioner  and  counsel  for  the  trustee,  and  upon  the  evidence  sub- 
mitted on  behalf  of  said  trustee. 

It  is  ordered  that  the  said be  removed  from  the  trust  as 

trustee  of  the  estate  of  said  bankrupt,  and  that  the  costs  of  the  said  peti- 
tioner incidental  to  said  petition  be  paid  by  said    ,  trustee 

[or,  out  of  the  estate  of  the  said ,  subject  to  prior  charges. , 

Witness  the  Honorable ,  judge  of  the  said  court,  and  the 

seal  thereof,  at   ,  in  said  district,  on  the   ....   day  of   ,  A. 

D.  19... 


Clerk. 


[Form  No.  55.] 

Order  for  Choice  of  New  Trustee. 

In  the  District  Court  of  the  United  States  for  the    District  of 

In  the  matter  of 

Bankrupt. 

In  Bankruptcy. 

At ,  on  the day  of ,  A.  D.  18. .  . 

Whereas  by  reason  of  the  removal  [or  the  death  or  resignation]  of 
,  heretofore  appointed  trustee  of  the  estate  of  said  bank- 
rupt, a  vacancy  exists  in  the  office  of  said  trustee. 

It  is  ordered,  that  a  meeting  of  the  creditors  of  said  bankrupt  be  held 

at   ,  in   ,  in  said  district,  on  the   ....   day  of   ,  A.  D. 

19.  .,  for  the  choice  of  a  new  trustee  of  said  estate. 

And  it  is  further  ordered  that  notice  be  given  to  said  creditors  of  the 
time,  place,  and  purpose  of  said  meeting,  by  letter  to  each,  to  be  deposited 
in  the  mail  at  least  ten  days  before  that  day. 


Referee  in  Bankruptcy. 


-[916  remington  on  bankruptcy. 

[Form  No.  56.] 

Certificate  by  Referee  to  Judge. 

In  the  District  Court  of  the  United  States  for  the    District  of 

In  the  matter  of 

Bankrupt. 

In  Bankruptcy. 

I, ,  one  of  the  referees  of  said  court  in  bankruptcy,  do 

hereby  certify  that  in  the  course  of  the  proceedings  in  said  cause  before 
me  the  following  question  arose  pertinent  to  the  said  proceedings;  [Here 
state  the  question,  a  summary  of  the  evidence  relating  thereto,  and  the 
finding  and  order  of  the  referee  thereon.'] 

And  the  said  question  is  certified  to  the  judge  for  his  opinion  thereon 

Dated  this day  of ,  A.  D.  19. . . 


Referee  in  Bankruptcy. 


[Form  No.  i7.'\ 

Bankrupt's  Petition  for  Discharge. 

In  the  matter  of 

Bankrupt. 

In  Bankruptcy. 

To  the  Honorable , 

Judge  of   the   District   Court  of   the   United   States    for    the   District 

of 

,  of ,  in  the  county  of and  State  of , 

in  said  district,  respectfully  represents  that  on  the    ....    day  of   , 

last  past,  he  was  duly  adjudged  bankrupt  under  the  acts  of  Congress 
relating  to  bankruptcy;  that  he  has  duly  surrendered  all  his  property  and 
rights  of  property,  and  has  fully  complied  with  all  the  requirements  of  said 
acts  and  of  the  orders  of  the  court  touching  his  bankruptcy. 

Wherefore  he  prays  that  he  may  be  decreed  by  the  court  to  have  a  full 
discharge  from  all  debts  provable  against  his  estate  under  said  bankrupt 
acts,  except  such  debts  as  are  excepted  by  law  from  such  discharge. 

Dated  this day  of ,  A.  D.  19. .  . 

,  Bankrupt. 

Order  of  Notice  TherEon. 
District  of ,  ss: 

On  this  ....  day  of ,  A.  D.  19.  .,  on  reading  the  foregoing  peti- 
tion, it  is .  . 

Ordered  by  the  court,  that  a  hearing  be  had  upon  the  same  on  the  .... 
day  of ,  A.  D.  19.  .,  before  said  court,  at ,  in  said  district, 


OFFICIAL  FORMS  IN  BANKRUPTCY,  1917 

» 

at  ....  o'clock  in  the noon;  and  that  notice  thereof  be  pubhshed  in 

,  a  newspaper  printed  in  said  district,  and  that  all  known 

creditors  and  other  persons  in  interest  may  appear  at  the  said  time  and 
place  and  show  cause,  if  any  they  have,  why  the  prayer  of  the  said  peti- 
tioner should  not  be  granted. 

And  it  is  further  ordered  by  the  court,  that  the  clerk  shall  send  by  mail 
to  all  known  creditors  copies  of  said  petition  and  this  order,  addressed  to 
them  at  their  places  of  residence  as  stated. 

Witness  the  Honorable ,  judge  of  the  said  court,  and  the 

seal  thereof,  at    in  said  district,  on  the    ....    day  of    ,  A. 

D.  19... 

» 

Clerk. 

....  hereby  depose,  on  oath,  that  the  foregoing  order  was  published  in 
the on  the  following days,  viz : 

On  the  ....  day  of and  on  the  ....  day  of ,  in  the  year 

19... 

District  of 

19... 

Personally  appeared   ,  and  made  oath  that  the  foregoing 

statement  by  him  subscribed  is  true. 

Before  me, 

> 

■  [Official  character.] 

I  hereby  certify  that  I  have  on  this   ....    day  of   ,  A.  D.   19.  ., 

sent  by  mail  copies  of  the  above  order,  as  therein  directed. 

Clerk. 


[Form  No.  S8.] 

Specifications  of  Grounds  of  Opposition  to  Bankrupt's  Discharge. 

In  the  District  Court  of  the  United  States  for  the    ......    District  of 

In  the  matter  of 

Bankrupt. 

///  Bankruptcy. 

,  of ,  in  the  county  of ,  and  State  of , 

a  party  interested   in    the  estate    of  said    ,    bankrupt,    do 

hereby  oppose  the  granting  to  him  of  a  discharge  from  his  debts,  and  for 
the  grounds  of  such  opposition  do  file  the  following  specifications  [Here 
specify  the  grounds  of  opposition.] 

,  Creditor. 


1918  remington  on  bankruptcy. 

[Form  No.  59.] 

Discharge  of  Bankrupt. 

District  Court  of  the  United  States, 

District  of 

Whereas, of  in  said  district,  has  been  duly  ad- 
judged a  bankrupt,  under  the  acts  of  Congress  relating  to  bankruptcy,  and 
appears  to  have  conformed  to  all  the  requirements  of  law  in  that  behalf, 

it  is  therefore  ordered  by  this  court  that  said be  discharged 

from  all  debts  and  claims  which  are  made  provable  by  said  acts  against  his 

estate,  and  which  existed  on  the  ....  day  of ,  A.  D.  19.  .,  on  which 

day  the  petition  for  adjudication  was  filed   him ;  excepting  such 

debts  as  are  by  law  excepted  from  the  operation  of  a  discharge  in  bank- 
n.'ptcy. 

Witness  the  Honorable ,  judge  of  said  district  court,  and 

the  seal  thereof  this  ....  day  of ,  A.  D.  19.  .. 

Clerk. 


[Form  No.  60.] 

Petition  for  Meeting  to  Consider  Composition. 

District  Court  of  the  United  States  for  the   District  of 

Bankrupt. 

Ill  Bankruptcy. 

To  the  Honorable    ,  Judge  of  the  District  Court  of  the 

United  States  for  the ,  District  of ." 

The  above-named  bankrupt  respectfully  represents  that  a  composition  of 

per  cent,  upon  all  unsecured  debts,  not  entitled  to  a  priority 

in  satisfaction  of   debts  has  been  proposed  by   to 

creditors,  as  provided  by  the  acts  of  Congress  relating  to  bank- 
ruptcy, and verily  believe  that  the  said  composition  will  be  accepted 

by  a  majority  in  number  and  in  value  of creditors  wnose  claims  are 

allowed. 

Wlierefore,  he  pray  that  a  meeting  of    creditors  may  be  duly 

called  to  act  upon  said  proposal  for  a  composition,  according  to  the  pro- 
visions of  said  acts  and  the  rules  of  court. 

> 

Bankrupt. 


official  forms  ix  bankruptcy.  1919 

[Form  Xo.  61.] 

Application  for  Confirmation  of  Composition. 

In  the  District  Court  of  the  United  States  for  the    District  of  _ 

In  the  matter  of 

Bankrupt.  " 

/;/  Bankruptcy. 

To  the  Honorable    ,   Jnclge  of  the  District  Court  of  the 

United  States  for  the District  of 

At ,  in  said  district,  on  the day  of ,  A.  D.  19..  .  now 

comes the  above-named  bankrupt,  and  respectfully  repre- 
sents to  the  court  that,  after  he  had  been  examined  in  open  court  [or 
at  a  meeting  of  his  creditors]  and  had  filed  in  court  a  schedule  of  his 
property  and  a  list  of  his  creditors,  as  required  by  law,  he  offered  terms  of 
composition  to  his  creditors,  which  terms  have  been  accepted  in  writing  by 
a  majority  in  number  of  all  creditors  whose  claims  have  been  allowed, 
which  number  represents  a  majority  in  amount  of  such  claims ;  that  the 
consideration  to  be  paid  by  the  bankrupt  to  his  creditors,  the  money  neces- 
sary to  pay  all  debts  which  have  priority,  and  the  costs  of  the  proceedings, 
amounting  in  all  to  the  sum  of  dollars,  has  been  deposited,  sub- 
ject to  the  order  of  the  judge,  in  the   National  Bank,  of   ....... 

a  designated  depository  of  money  in  bankruptcy  cases. 

Wherefore  the  said respectfully  asks  that  the  said  com- 
position may  be  confirmed  by  the  court. 


Bankrupt. 


[Form  No.  62.] 

Order  Confirming  Composition. 

In  the  District  Court  of  the  United  States  for  the    District  of 

In  the  Matter  of 

Bankrupt. 

In  Bankruptcy. 

An  application  for  the  confirmation  of  the  composition  oft'ered  by  the 
bankrupt  having  been  filed  in  court,  and  it  appearing  that  the  composition 
has  been  accepted  by  a  majority  in  number  of  creditors  whose  claims  have 
been  allowed  and  of  such  allowed  claims ;  and  the  consideration  and  the 
money  required  by  law  to  be  deposited,  having  been  deposited  as  ordered, 
ill  such  place  as  was  designated  by  the  judge  of  said  court,  and  subject 
to  his  order ;  and  it  also  appearing  that  it  is  for  the  best  interests  of  the 
creditors ;  and  diat  the  bankrupt  has  not  been  guilty  of  any  of  the  acts 


1920  REMINGTON  ON  BANKRUPTCY. 

or  failed  to  perform  any  of  the  duties  which  would  be  a  bar  to  his  dis- 
charge, and  that  the  offer  and  its  acceptance  are  in  good  faith  and  have 
not  been  made  or  procured  by  any  means,  promises,  or  acts  contrary  to  the 
acts  of .  Congress  relating  to  Bankruptcy:  It  is  therefore  hereby  ordered 
that  the  said  composition  be,  and  it  hereby  is,  confirmed. 

Witness  the  Honorable ,  judge  of  said  court,  and  the  seal 

thereof,  this day  of ,  A.  D.  19. .. 


Clerk, 


[Form  No.  6^.] 
Order  for  Distribution  on  Composition. 

United  States  of  America: 

In  the  District  Court  of  the  United  States  for  the District  of 

In  the  mat'ter  of 

Bankrupt. 

In  Bankruptcy. 

The  composition  offered  by  the  above-named  bankrupt  in  this  case  hav- 
ing been  duly  confirmed  by  the  judge  of  said  court,  it  is  hereby  ordered  and 
decreed  that  the  distribution  of  the  deposit  shall  be  made  by  the  clerk  of 
the  court  as  follows,  to  wit:  1st,  to  pay  the  several  claims  which  have  pri- 
ority; 2d,  to  pay  the  costs  of  proceedings;  3r,  to  pay,  according  to  the 
terms  of  the  composition,  the  several  claims  of  general  creditors  which 
have  been  allowed,  and  appear  upon  a  list  of  allowed  claims,  on  the  files  in 
this  case,  which  list  is  made  a  part  of  this  order. 

Witness  the  Honorable ,  judge  of  said  court,  and  the  seal 

thereof,  this  ....  day  of ,  A.  D.  19.. . 

J 

Clerk. 


UNOFFICIAL  FORMS  IN  BANKRUPTCY. 


TliQ  following  forms  are  not  to  be  understood  as  in  any  way  official  or 
prescribed  by  authority.  They  are  simply  suggested  forms  for  supple- 
menting the  official  forms  prescribed  by  the  Supreme  Court,  and  are  merely 
the  result  of  the  writer's  experience. 


UNOFFICIAL  FORMS  IN   BANKRUPTCY. 


■  '  [Form  No.  1.] 

Adjudication  in  Involuntary  Bankruptcy  by  Referee. 

At ,  in  said  district,  on  this  the  ....  day  of ,  A.  D.,  19.  . ,  at 

.  .  o'clock  in  the noon,  the  petition  of , and 

that  said    be  adjudged  a  bankrupt  within  the  true  intent 

and  meaning  of  the  Acts  of  Congress  relating  to  Bankruptcy,  having  been 
filed,  together  with  the  certificate  of  the  Clerk  of  said  Court  that  the  Judge 

of  said  Court  was  absent  from   [the   division  of]    said  district  on 

the  next  day  after  the  last  day  on  which  pleadings  might  have  been  filed 
and  that  no  pleadings  have  been  filed  by  said  bankrupt  nor  of  his  [its] 
creditors,  and  that  said  matter  has  been  referred  to  this  referee  in  ac- 
cordance with  law ;  and  said  petition  having  been  heard  and  considered, 
now  it  is  found  that  the  allegations  thereof  are  true,  and  it  is  therefore 
ordered  that  said  petition  be  and  it  hereby  is  granted  and  the  said 
is  hereby  declared  and  adjudged  bankrupt  accordingly. 


[Form  No.  2.] 

Adjudication  by  Referee  on  Answer  Admitting  Petition. 

At , ,  in  said  District,  on  this  the  ....  day  of ,  at 

....  o'clock  in  the noon  the  petition  of ,  of , 

that  said be  adjudged  a  bankrupt  within  the  true  intent  and 

meaning  of  the  Acts  of  Congress  relating  to  bankruptcy  having  been  filed 
together  with  the  answer  of  said  respondent  admitting  to  be  true  the  al- 
legations of  said  petition  as  to  the  act  of  bankruptcy  therein  charged  and 
the  certificate  of  the  District  Clerk  that  the  Judge  of  said  Court  was  absent 
from  said  District  upon  the  next  day  after  the  last  day  upon  which  adver- 
sary pleadings  could  be  filed  to  said  petition  and  that  none  were  filed 
thereto,  and  that  said  matters  have  been  referred  to  this  referee  on  account 
thereof,  now  upon  due  consideration  thereof  it  is  ordered  that  the  said 

petition  be  and  it  hereby  is  granted,  and  the  said declared 

and  adjudged  bankrupt  accordingly. 


[Form  No.  3.] 

Order  of  Adjudication  and  Appointment  of  First  Meeting. 

Upon  this  the   ....   day  of ,  A.  D.  19.  ..,  at  ....  o'clock  in  the 

noon,  the  petition  of ,  of  the  city  of   in  the 

<  cunty  of   and  district  aforesaid  that  he  be  adjudged  a  bankrupt 


1924  REMINGTON   ON   BANKRUPTCY. 

V  ithin  the  true  intent  and  meaning  of  the  Acts  of  Congress  relating  to 
bankruptcy,  having  been  filed,  together  with  his  schedules  and  the  certifi- 
cate of  the  Clerk  that  the  Judge  of  said  Court  is  absent  [from  the  District] 
or  [on  account  of  illness]  and  that  this  matter  has  been  referred  to  the 
leferee  in  consequence  thereof;  and  said  petition  having  been  heard  and 

duly  considered,  the  said is  hereby  declared  and  adjudged 

bankrupt  accordingly;  and  it  is  ordered  that  the  first  meeting  of  creditors 

be  held  at  the  offices  of  the  Referee  at in  the  city  of 

upon  the day  of   ,  A.  D.,  19.  . ,  at o'clock  in  the   .    .  .    , 

iioon,  at  which  meeting  said  bankrupt  is  hereby  ordered  to  attend  in  com- 
pjiance  with  law. 


[Form  No.  4.] 

Referee's    Order   Appointing   Receiver    [Involuntary   Bankruptcy] 
and  for  Warrant  of  Seizure. 

Upon  this  the day  of ,  19.  . ,  at o'clock  in  the 

noon,  the  applications  of  the for  the  appointment  of  a  receiver  [and 

for  warrant  of  seizure  to  issue]  herein  came  on  for  hearing  upon  [with- 
out] notice  to  the  bankrupt,  and  it  appearing  by  certificate  of  the  District 
Clerk  that  the  District  Judge  is  absent  from  said  District  and  that  said  ap- 
plications have  been  referred  to  the  referee  on  account  thereof ;  and  the 
same  having  been  duly  heard  upon  the  evidence,  at  the  hearing  whereof  said 
bankrupt  was  represented  [notice  upon  said  bankrupt  having,  for  good 
cause  shown,  been  dispensed  with]  ;  now  it  is  found  that  the  allegations 
of  said  applications  are  true,  and  that  a  petition  for  adjudication  was  on 

the    ....    day  of    ,   19.  . ,  filed  against    of  the  city 

of in  said  District,  and  that  said  petition  is  still  pending  [and  that 

an  act  of  bankruptcy  has  been  committed  as  therein  set  forth  and  that 
said  bankrupt  has  neglected  and  is  neglecting  and  is  about  to  further  neg- 
l'';ct  his  property,  so  that  the  same  has  deteriorated  and  will  further  de- 
teriorate in  value,  see  Bankr.  Act  §  69],  and  that  it  is  absolutely  neces- 
sary for  the  preservation  of  the  estate  of  said  bankrupt  that  a  receiver  be 
appointed  to  [seize  and]  take  charge  of  said  bankrupt's  estate,  and  a  bond 

in  the  sum  of  $ having  been  filed  as  provided  in  Section  3  (e)  of 

the  Bankruptcy  Act  of  1898. 

Now,  it  is  ordered  that  said  applications  be  and  they  hereby  are  granted ; 
tliat  said  bond  be  and  it  hereby  is  approved  both  as  to  its  form  and 
amount ;  that  Esq.  of  ,  be  and  he  hereby  is  ap- 
pointed receiver  of  the  estate  of  said  bankrupt  and  upon  filing  an  additional 

bond  as  receiver  in  the  sum  of  $ ,  with  sufificient  sureties  to  be 

approved  by  this  court,  that  said  receiver  [seize  upon  and]  take  charge 
of  all  the  assets  of  the  bankrupt  and  preserve  the  same  pending  the 
election  and  qualification  of  the  trustee  herein  or  until  the  dismissal  of  the 
petition ;  and  it  is  further  ordered  that  said  receiver  forthwith  prepare 
and  file  an  inventory  of  the  assets  coming  into  his  possession;    [and  it  is 


UNOFFICIAL   FORMS   IN    BANKRUPTCY.  1925 

further  ordered  that ,   and ". .   of ,  three 

disinterested  persons,  be  and  they  are  hereby  appointed  appraisers  to  ap- 
praise the  property  belonging  to  the  estate  of  the  bankrupt  and  report 
their  appraisal  to  the  court,  said  appraisal  to  be  made  as  soon  as  may  be 
and  the  appraisers  to  be  duly  sworn]. 


[Form  No.  5.] 

Eeferee's  Order  Appointing  Receiver  [in  Involuntary  Bankruptcy 
without  Warrant  of  Seizure]. 

Upon  this  the  ....  day  of ,  19.  . ,  at  .  .  o'clock  in  the noon, 

the  application  of   for  the  appointment  of  a  receiver  herein,  came 

on  for  hearing  with  [or  without]  notice  to  the  bankrupt;  and  it  appearing 
by  certificate  of  the  District  Clerk  that  the  District  Judge  is  absent  from 

[the Division  of]   said  District,  and  that  said  application  has  been 

leferred  to  this  Referee  on  account  thereof;  and  the  same  having  been 
duly  heard  upon  the  evidence,  at  the  hearing  whereof  [no  adverse  in- 
terest was  represented]  [or,  if  without  notice,  that  good  cause  was  shown 
for  dispensing  with  notice  upon  said  bankrupt]  said  bankrupt  was  present 
[not  present  though  duly  notified],  now,  it  is  found  that  the  allegations 
thereof  are  true  and  that  a  petition  for  adjudication  was  on  the  ....   day 

of    ,    19.  . ,   filed  against    of  the  city  of    ,   in 

said  District  and  that  said  petition  is  still  pending  and  that  it  is  absolutely 
necessary  for  the  preservation  of  the  estate  of  said  bankrupt  that  a  re- 
ceiver be  appointed  to  take  charge  of  said  bankrupt's  estate. 

It  is  therefore  ordered  that  said  application  be  and  it  hereby  is  granted ; 
and  Esq.,  of  be  and  he  hereby  is  appointed  re- 
ceiver of  the  estate  of  said  bankrupt;  and  that,  upon  filing  an  additional 

bond   as   receiver   in   the   sum   of   $ with   sufficient   sureties   to   be 

approved  by  this  Court,  such  receiver  take  charge  of  all  the  assets  of  the 
bankrupt  and  preserve  the  same  pending  the  election  and  qualification  of 
the  trustee  herein  or  until  the  dismissal  of  the  petition;  and  it  is  further 
ordered  that  said  receiver  take  an  immediate  inventory  of  the  assets  of 
the  bankrupt. 


[Form  No.  6.] 

Order   Appointing   Receiver    ["Voluntary   Bankruptcy]     [No    Order 

to  continue  Business]. 

Upon  this  the  .  . . .  day  of ,  19.  . ,  at  ....  o'clock  in  the  .  .  .  .noon, 

the  motion  of   ,  bankrupt    [or  creditor]    for  the  appointment  of  a 

receiver  came  on  for  hearing,  without  notice,  at  which  hearing  no  adverse 
irjterest  was  represented,  and  the  same  having  been  duly  considered  upon 
said  motion  and  the  evidence,  now  it  is  found  that  the  allegations  of 
said  motion  are  true  and  that  it  is  absolutely  necessary  for  the  preserva- 


1926  REMINGTON   ON    BANKRUPTCY. 

tion  of  the  estate  that  a  receiver  be  appointed  to  take  charge  of  the  same 
until  the  trustee  is  appointed  and  quahfied. 

And,  it  is  therefore  ordered  that Esq.,  be  and  he  hereby 

is   appointed   receiver   herein   and   upon   his   giving  bond   in   the   sum   of 

S with  good  and  sufficient  sureties  to  the  satisfaction  of  the  Court, 

it  is  ordered  that  he  take  charge  of  all  the  assets  of  the  bankrupt  and 
preserve  the  same  pending  the  election  and  qualification  of  a  trustee 
herein. 

And  it  is  further  ordered  that  said  receiver  forthwith  prepare  and  file 
an  inventory  of  the  assets  so  coming  into  his  possession. 


[Form  No.  7.] 

Order  Refusing  Application  for  the  Appointment  of  a  Receiver. 

Upon  this   the    ....    day  of    ,    19..,   the   application   of    

for  the  appointment  of  a  receiver  came  on  for  hearing,  [of  which 

hearing  due  notice  was  given,  or,  no  notice  was  given ;  or,  at  which  hearing 

no  adverse  interest  was  represented ;  or  upon  due  notice  to ] 

and  the  same  having  been  considered  upon  said  application  and  the  evi- 
dence, now  it  appears  that  it  is  not  absolutely  necessary  for  the  preserva- 
tion of  the  estate  that  a  receiver  be  appointed,  and  it  is  therefore  ordered 
that  said  application  be  and  it  hereby  is  refused. 


[Form  No.  8.] 

Order  Appointing  Receiver,    [Voluntary  Bankruptcy]    with  Order 

to  Continue  Business. 

Upon  this  the  ....  day  of ,  19.  . ,  at  .  .  o'clock  in  the noon, 

the  bankrupt's  motion  for  the  appointment  of  a  receiver  [and  for  leave  to 
conduct  the  business  for  a  limited  period]  came  on  for  hearing  withoat: 
notice  to  creditors,  and  the  same  having  been  duly  considered  upon  said 
motion  and  the  evidence,  now  it  is  found  that  the  allegations  of  said  mo- 
tion are  true  and  that  it  is  absolutely  necessary  for  the  preservation  of 
said  estate  that  a  receiver  be  appointed  to  take  charge  of  the  same,  [and 
that  it  is  for  the  best  interests  of  said  estate  that  said  receiver  be  authorized 
to  continue  the  business  for  a  limited  period]. 

And,  it  is  therefore  ordered  that  said  motion  be  and  it  hereby  is  granted 

and ,  Esq.,  of   in  said  District  be  and  he  is  hereby 

appointed  receiver  of  the  estate  of  said  bankrupt;  and  that,  on  filing  a  bond 

in  the  sum  of dollars  [$ ]  to  be  approved  by  this  Court,  said 

receiver  take  possession  of  the  assets  of  said  estate  [and  continue  the 
business  of  said  bankrupt  (to  the  extent  of  completing  the  work  now  on 
hand)],  and  so  to  do  until  the  appointment  and  qualification  of  a  trustee 
herein  or  until  the  further  order  of  the  Court. 


unofficial  forms  in  bankruptcy.  1927 

[Form  No.  9.] 
Order  for  Bankrupt  to  Prepare  Schedules. 

It  appearing  that  the  bankrupt  [or  bankrupt's  officers]  has  failed 
within  ten  days  time  from  the  date  of  adjudication  to  file  a  list  of  the 
creditors  and  a  schedule  of  assets  of  the  bankrupt  [corporation]  herein^ 
now  it  is  ordered  that  within  five  days   from  and  after  this  date,   said; 

bankrupt    [or    ,  Esq.  officer  of  said  bankrupt  corporation]; 

prepare  and  file  a  list  of  creditors  with  their  names  and  addresses  and  a 
schedule  of  the  assets  of  said  [corporation]  bankrupt,  in  accordance  with 
law. 

And  it  is  further  ordered  that  service  of  this  order  by  copy  be  made 

upon  said  bankrupt  [said Esq.]  returnable  five  days  before: 

the  said  ....  day  of ,  19.  . . 


[Form  No.  10.] 

Order  Appointing  First  Meeting. 

The  petition,  schedules  and  certified  copy  of  the  order  of  reference  and 
adjudication  under  the  above  bankruptcy  having  been  filed,  now,  upon 
this  ....  day  of ,  19.  .,  it  is  ordered  that  the  first  meeting  of  cred- 
itors of who  was  heretofore,  to-wit :  upon  the  ....  day  of 

by  the  Court  of  Bankruptcy  of  said  District  duly  adjudged  bankrupt,  be 

held  at  the  offices  of  the  Referee,  at   in  the  city  of   upon 

the  ....  day  of ,  19 .  . ,  at  .  .  o'clock  in  the noon,  at  which 

meeting  it  is  ordered  that  said  bankrupt  attend  in  accordance  with  law. 


[Form  No.  11.] 

Certificate  of  Notice  to   Creditors. 

I  hereby  certify  that  I  did  upon  the    ....    day  of    ,   19..,  mail 

printed  notices  [of  the  form  herein  filed]  of  the  [first  meeting  of  cred- 
itors under  the  above  bankruptcy],  [hearing  upon  the  bankrupt's  petition 
for  discharge],  enclosed  within  return  and  penalty  envelopes,  addressed 
tc  the  names  and  addresses  given  in  the  bankrupt's  schedules,  or  as  noti- 
fied by  creditors;  and  I  further  certify  that  I  did  on  said  day  likewise 
mail  to  the a  notice  thereof  for  publication  therein. 


[Form  No.  12.] 

Certificate  of  First  Meeting  and  Orders  Made  Thereat 
[no  creditors.] 

This  being  the  day  appointed  by  the   Court,   for  the  first  meeting  of 
creditors  under  the  above  bankruptcy  of  which  meeting  due  notice  was 


1928  REMINGTON   ON   BANKRUPTCY, 

given  by  publication  in  the ,  and  by  mail,  I,  the  Referee  of 

said  Court  in  charge  of  said  Bankruptcy  seat  at  the  time  and  place  men- 
tioned in  said  notices  and  ordered  by  the  Court,  to-wit :  at in  the 

city  of upon  the  ....   day  of A.  D.  19.  .,  at  .  .   o'clock  in 

the noon,  to  take  the  proofs  of  debts  and  for  the  choice  of  trustee, 

the  examination  of  the  bankrupt  and  other  proper  business  and  I  certify 
that  no  creditor  whose  claim  was  allowed  appeared  at  said  meeting,  but 
it  appearing  to  be  for  the  best  interest  of  the  estate  that  a  trustee  thereof 
be  appointed,  it  is  ordered  that of be  and  he  is  hereby  ap- 
pointed trustee  of  said  bankrupt's  estate  and  his  bond  is  fixed  in  the  sum 

of    dollars,    [and   it   further  appearing  that  no  claims  have  been 

filed  against  said  estate  and  that  no  assets  exist  belonging  thereto,  exempt 
or  otherwise,  and  that  the  appointment  of  a  trustee  is  at  this  time  un- 
necessary, now,  it  is  ordered  that  the  election  of  a  trustee  be  and  it  hereby 
is  dispensed  with]  and  said  first  meeting  is  thereupon  adjourned  with- 
out dav. 


[Form  No.  13.] 
Certificate  of  First  Meeting  and  Orders  Made  Thereat. 

This  being  the  day  appointed  by  the  Court  for  the  First  ^Meeting  of  the 
Creditors  under  the  above  bankruptcy,  of  which  meeting  due  notice  was 

given  by  publication  in  the and  by  ten  days  notice  by  mail, 

T.  the  referee  of  said  Court  in  charge  of  said  Bankruptcy  sat  at  the  time 
and  place  mentioned   in  said  notices  and   ordered   by  the   Court,   to-wit : 

at   in  the  city  of    upon  the   ....    day  of   ,  19.  . ,  at 

..    o'clock   in   the    noon,   to   take   the  proofs  of   debt  and   for  the 

choice  of  trustee,  the  examination  of  the  bankrupt^  and  other  proper  busi- 
ness, and  I  certify  that  the  following  is  a  list  of  creditors  whose  claims 
were  proved  at  said  first  meeting,  together  with  the  amounts  for  which  the 
same  were  respectively  made,  to-wit :      


and  said  foregoing  claims  having  been  thus  filed  and  proved  and  having 
been  duly  examined  and  found  correct,  now  upon  the  severjil  motions  ot 
said  respective  claimants,  it  is  ordered  that  the  said  claims  be  and  they 
hereby  are  severally  allowed  and  for  the  sums  named,  save  and  except 
that  the  following  of  the  said  claims  are  not  allowed  and  are  postponed 
for  cause,  to-wit :      


And  I  further  certify  that  the  following  is  a  list  of  all  creditors  present 
[not  present]  at  said  first  meeting  whose  claims  have  been  allowed,  to-wit : 


And  I  further  certify  that  the  majority  in  number  and  amount  of  the 


UNOFFICIAL   FORMS   IN    BANKRUPTCY.  1929 

creditors  who  have  proved  their  claims  and  who  were  present  or  repre- 
sented by  duly  authorized  agent  or  attorneys,  made  choice  of ,  Esq., 

of in  said  District  to  be  trustee  of  said  bankrupt's  estate  and  effects 

and  fixed  his  bond   in  the  sum  of  $ ,   and  it  appearing  that  said 

Esq.  is  a  suitable  person  for  said  trust,  now,  it  is  ordered  that  said 

appointment  be  and  the  same  hereby  is  approved ;  and  it  is  further  ordered 
that  said  first  meeting  be  adjourned  [without  day;  or,  for  the  examina- 
tion of  the  bankrupt]  to  the  ....  day  of ,  19. .,  at    ....  o'clock  in 

the noon. 


[Form  No.  14.] 

.     Order  Allowing  General  Claims. 

Upon  the    ....    day  of    ,    A.    D.    19..,    at     ..     o'clock    in    the 

noon,  the   following  claims  were  presented   for  allowance  and  the 

same  having  been  examined  and  found  correct  and  duly  proved,  now,  it 
it  ordered  that  said  claims  be  and  the  same  hereby  are  allowed,  in  the 
respective  sums  set  opposite  the  several  names,  as  follows,  to-wit : 


[Form  No.  15.] 
Order  Allowing  Priority  Claim. 

Upon  this  ....  day  of ,  19.  . ,  the  claim  of and  his  motion 

for  allowance  of  it  as  a  priority  claim  were  presented ;  and  the  same  hav- 
ing been  duly  considered,  now  it  is  found  that  said  claim  is  correct  in 
amount  and  duly  proved,  and  that  the  same  is  for  wages  earned  within 
tliree  months  preceding  the  filing  of  the  petition,  in  the  capacity  of  work- 
man [clerk]    [servant]  of  the  bankrupt,  and  as  such  is  entitled  to  priority. 

And  it  is  therefore  ordered  that  said  claim  be  and  it  hereby  is  allowed 

as  a  priority  claim  against  the  estate  in  the  sum  of  $ ;  and  that  the 

same  be  paid  [forthwith  or]  before  the  payment  of  any  general  creditors 
herein. 


[Form  No.  16.] 

Order  of  Subrogation  on  Assignment  of  Claim  Already  Proved. 

Upon  this  the    ....    day  of    ,   19.  . ,    at    o'clock    in    the 

noon,  upon  application  of   ,  and  it  appearing  that  upon  the 

.  .  .    day  of   proof  of  the  assignment  to    of  the  claim  of 

heretofore  approved  and  entered  on  the  referee's  docket  as  follows 

was  filed  and  ten  days  due  notice  thereof  was  given  by  mail  to 


1930  REMINGTON    ON   BANKRUPTCY, 

said  of  the  filing  of  said  proof  of  assignment,  and  that  no  ob- 
jection has  been  entered  herein,  and  no  request  for  further  time  been  made, 
and  that  said  proof  of  the  assignment  of  said  claim  is  satisfactory,  now  it 

is  ordered  that  said be  and  he  hereby  is  subrogated  to  the  original 

claimant ,  as  owner  of  said  claim. 


[Form  No.  17.] 

Order  Allowing  Withdrawal  of  Notes. 

[Part  of  certificate  of  first  meeting  of  creditors.] 

Upon  application  of and it  is  ordered  that 

said  claimants  be  and  they  are  hereby  authorized  to  withdraw  the  original 
notes  attached  to  their  proofs  of  claim  and  to  substitute  copies  in  place 
thereof. 


[Form  No.  18.] 

Order  Determining  Value  of  Securities  for  Purpose  of  Participa- 
tion in  Meetings. 

[Part  of  certificate  of  first  meeting  of  creditors.] 

At  said  meeting  of  creditors,  the  secured  claim  of was 

presented  for  allowance  and  the  same  having  been  examined  and  evidence 
taken  to  determine  the  value  of  securities  for  the  purpose  of  participation 
in  creditor's  meetings  prior  to  the  final  determination  of  the  same,  now,  it 
is  found  that  said  claim  is  correct  and  duly  proved  and  that  the  value  of 

said  securities  seems  to  be  $ and  that  there  seems  to  be  owing  the 

sum  of dollars  over  and  above  the  value  of  said  securities ;  and  it 

is  therefore  ordered  that  said  claim  be  and  it  hereby  is  allowed  for  the 
purpose  of  participation  in  the  meetings  of  creditors  prior  to  the  final  de- 
termination of  the  value  of  said  securities,  in  the  sum  of  $ 


[Form  No.  19.] 

Order  Approving  Receiver's   [or  Trustee's]   Bond. 

Upon   this    ....    day  of    ,    19..,  it  appearing  to  the  court  that 

of ,  has  been  duly  appointed  trustee  [or  receiver]  of 

the  estate  of  the  above  named  bankrupt  and  has  given  a  bond  with 

as  surety  for  tlie  faithful  performance  of  his  official  duties  in  the 

amount  fixed  by  the  creditors  [order  of  the  Court],  to- wit :  in  the  sum  of 

dollars,  it  is  ordered  that  said  bond  be  and  the  same  is  hereby 

approved. 


unofficiai,  forms  in  bankruptcy.  1931 

[Form  No.  20.] 

Order  for  Examination  of  Witness. 

Upon  application  of ,  it  is  ordered  that 

be  and  appear  before  the  referee  at  his  office  No ,  in  the  city 

of ,  upon  the  ....  day  of ,  19.  . ,  at  ....  o'clock  in  the  .... 

noon,  to  be  examined  concerning  the  acts,  conduct  and  property  of  the 
bankrupt ;  and  that  due  service  of  this  order  by  copy  be  made  upon  said 
,  the  same  to  be  returnable  on  the  ....  day  of ,  19. .. 


[Form  No.  21.] 

Order  of  Adjournment. 

Upon  application  of  the [or,  by  consent  of  parties]   it  is 

ordered  that  the  hearing  upon be  and  the  same  hereby  is 

adjourned  to  the  ....  day  of ,  A.  D.  19.  .,  at  .  . .  .  o'clock  in  the 

noon. 


[Form  No.  22.] 

Order  Appointing  Appraisers. 

Upon  this   ....   day  of ,  19.  .,  upon  application  of  the  trustee,  it 

is  ordered  that , and ,  of ,  three  disinterested 

persons  be  and  they  are  hereby  appointed  appraisers  to  appraise  the  [real 
and  personal]  property  belonging  to  the  estate  of  the  bankrupt  [set  out 
in  the  schedules  now  on  file  in  this  court  and  such  other  property  as  may 
be  pointed  out  to  them  for  appraisal]  and  report  their  appraisal  to  the 
Court,  said  appraisal  to  be  made  as  soon  as  may  be,  and  the  appraisers  to 
be  duly  sworn. 


[Form  No.  23.] 

Order  Allowing  Appraisers'  Fees. 

Upon  this  ....  day  of ,  19.  .,  upon  application  of  the  trustee  and 

for  good  cause  shown,  it  appearing  that  special  circumstances  exist  making 
tlie  ordinary  allowance  to  appraisers  for  their  services  inadequate  and  that 

reasonable  compensation  therefor  would  be  the  sum  of dollars  each, 

now,  it  is  ordered  that heretofore  by  order  of  the  Court  ap- 
pointed appraisers  herein,  be  and  they  hereby  are  allowed  said  sum  oi 
^ ,  each  as  and  for  their  reasonable  compensation  as  such  appraisers 


1932  remington  on  bankruptcy. 

[Form  No.  24.] 
Order  to  Show  Cause  on  Trustee's  Petition  for  Summary  Order, 

In  the  District  Court  of  the  United  States  for  the    District  of 

In  Bankruptcy. 
In  the  matter  of  )  Order  to  Show  Cause  on  Trustee'.^ 
Bankrupt.      \         Petition  for  Summary  Order. 

Upon  this day  of ,  19.  .,  it  appearing  to  the  court  that  the 

trustee  has  filed  in  these  proceedings  his  petition   for  a  summary  order 

upon the  bankrupt  [or  bankrupt's  agent]  herein,  requiring 

t]]e  said' forthwith  to  surrender  certain  property  claimed  to 

belong  to  said  estate  and  in  his  possession ; 

Now,  it  is  ordered  that  the  said be  and  he  thereby  is 

required  to  appear  before  the  undersigned referee  in  charge 

of  said  bankruptcy,  at  said  referee's  office, in  the  town  of 

,  at  ....  o'clock  in  the noon,  to  show  cause  if  any  he  have, 

why  such  order  should  not  be  granted. 

And  it  is  further  ordered  that  service  of  this  order  by  copy  be  made  upon 
said returnable  on  the  ....   day  of ,  19.  . . 


Referee  in  Bankruptcy. 

I,  the  undersigned  referee  in  charge  of  the  above  bankruptcy  hereby 
certify  that  the  foregoing  is  a  true  and  correct  transcript  from  my  record 
in  the  said  proceedings. 

In  testimony  zuhereof  I  hereto  set  my  hand  this    ....    day  of    , 

19... 


Referee  in  Bankruptcy. 
[Certificate  of  the  District  Clerk,  under  seal,  to  the  signature  and  official 
capacity  of  the  referee.] 


[Form  No.  25.] 
Order  of  Substitution  of  Trustee  for  Receiver. 

Upon  application  of  the  trustee  it  is  ordered  that  the  trustee  be  and  he 
hereby  is  substituted  for  the  receiver  in  the  receiver's  petition  to  [sell] 
filed  herein. 


[Form  No.  26.] 
Order  Appointing  Hearing  upon  Petition  to  Sell. 

Upon  application  of  the  trustee,  it  is  ordered  that  the  hearing  upon  his 

petition  to  sell  at  public  or  private  sale 

be  held  before  the  referee,  at  his  offices 

in  the  city  of , upon  the  ....  day  of ,  19.  . ,  at  .  .  .  . 

o'clock  in  the noon. 

Notices  of   mailed  to  all  creditors  to  names  and  addresses 

given  in  the  bankrupt's  schedules. 


unofficial  forms  in  bankruptcy.  1933 

[Form  No.  27.] 
Notice  of  Order  to  Show  Cause  on  Trustee's  Petition  to  Marshal 

Liens  and  Sell. 

In  the   United   States  District  Court   for  the    District  of    

In  Bankruptcy. 

-,1  r  )  Notice  of  Order  to  Show  Cause  on 

In  the  matter  of  (  ^  u  ^v        *      at      i    i 

_     ,  V  i  rustee  s    Petition    to    Alarshai 

Bankrupt.  ,  c  n 

;  Liens  and  bell. 

To 

You  are  hereby  notified  that  the  petition  of ,  trustee  of 

the  estate  of ,  above  named  bankrupt,  has  been  filed,  praying 

the  court  for  an  order  to  sell,  free  from  liens  and  claims,  certain  property 
in  the  custody  of  said  court,  in  which  property  you  are  said  to  claim  an 
interest  by  way  of  lien  or  otherwise  and  for  an  order  marshaling  said  liens 
and  interests  and  determining  their  validity,  extent  and  priority ;  and  that 
therefore  it  is  ordered  that  you  shall  answer  and  set  up  your  claims  as  to 
the  said  property  or  be  forever  debarred  from  asserting  the  same,  before 

,  Esq.,  Referee  of  said  Court  in  Bankruptcy,  at  the  referee's 

office ,  in  the  city  of ,  on  or  before  the  ....  day  of , 

19.  .,  at  ....  o'clock  in  the noon,  and  at  said  time  and  place  show 

cause,  if  any  you  have,  why  such  orders  should  not  be  granted  and  such 
action  taken. 

Witness,  the  undersigned  Referee  of  said  Court,  in  Bankruptcy,  at  said 
city,  of ,  in  said  District,  this  ......  day  of ,  A.  D.  19.  . . 


Referee  in  Bankruptcy. 
[Certificate   of   District   Clerk    to    signature    and    official    capacity    of 
referee.] 


[Form  No.  -28.] 
Order  Marshalling  Liens  and  for  Sale  Free  and  Clear  of  Incum- 
brances. 

Upon  this    ....    day  of   ,   19..,  the  trustee's  petition  to  marshal 

liens  and  sell  -property  free  and  clear  of  all  encumbrances,  came  on   [by 

adjournment  from  time  to  time  from  the   ....   day  of ,  19.  .]    for 

hearing,  of  the  [original]  hearing  of  which  ten  days  due  notice  by  mail  was 
given  to  all  creditors ;  and  of  which  petition  due  service  of  notice,  by  rule 
to  show  cause,  was  made  upon  the  following  named  parties,  defendants 

herein ;    to-wit :     

[and  to  which  petition  the  following  parties  waived  service  of  process  and 

voluntarily  entered  their  appearance,  to-wit :    ]   and 

to  which  petition  the  following  parties  filed  answer  [or  answer  and  cross- 
petition]  ;  the  trustee  filing  also  the  following  pleadings,  to-wit 

and  the  said filing  answer  [or  reply,  etc.]  to  the  cross  peti- 


1934  REMINGTON    ON    BANKRUPTCY. 

tion  [or  answer]  of ;  and  to  which  cross  petition  [or  an- 
swer]  said is  in  default  of  answer  [or  reply]  and  thereby 

confesses  the  allegations  of  said  cross-petition  [or  answer]  to  be  true; 

And  the  same  having  been  duly  considered  upon  said  pleadings  and  the 
evidence,  now  it  is  found  that  the  property  in  said  trustee's  petition  de- 
scribed is  in  the  possession  [or,  control]  of  the  trustee,  that  the  defendant 

has  a  good  and  valid  lien  upon  said  property  in  the  sum  of 

$ from  the  ....  day  of 19.  . ,  by  virtue  of  his  mortgage  set 

up  in  his  cross-petition  herein  and  that  the  same  is  the  first  and  best  lien 
thereon  after  payment  of  costs  and  taxes ;  [that  the  title  and  right  of  pos- 
session of  part  of  said  property  in  said  petition  described,  to-wit :   

is  not  in  the  cross-petitioner ]  ;    [that  the  defendant 

is  the  wife  of  the  bankrupt;  that  at  the  date  of  the  adjudication 

lierein  her  age  was  ....  years  and  the  bankrupt's  age  ....  years ;  and  that 
she  is  entitled  to  inchoate  dower  in  the  premises  described  in  said  petition 

or  in  the  following  portion  of  the  property  in  said  petition  described 

to-wit ]  ;  that  the  cross  petitioner has  a  good 

and  valid  lien  upon  said  property   [upon  a  part  of  said  property,  to-wit: 

]  and  that  the  said  lien  of is  the  next  best  lien  upon 

said  premises,  after  payment  of  taxes  and  costs  and  of  the  said  lien  of 


And  it  is  further  found  that  it  is  for  the  best  interests  of  the  estate  and 
of  the  parties  that  the  said  property  be  sold  at  a  private  sale  [at  public  auc- 
tion], free  and  clear  of  all  encumbrances  [subject  to  the  following  en- 
cumbrances        and  free  and  clear  from  the  re- 

niainder]    and  that  the  rights  of  the  parties  be  transferred  to  the  funds 

derived  from  the  sale  thereof  [and  that  the  defendant wifo 

of  the  bankrupt  waives  her  inchoate  dower  interest  herein  and  consents  to 
the  sale  of  said  premises  free  and  clear  therefrom,  conditioned  on  the  pay- 
ment to  her  of  the  commuted  value  of  all  inchoate  interest  therein;  and 
that  her  commuted  dower  interest  therein  is  one  .  .  .  .th  part  of  the  pro- 
ceeds, etc.] 

And  it  is  therefore  ordered  that  the  prayer  of  said  petition  be  and  it 
hereby  is  granted ;  and  said  trustee  is  directed  to  sell  free  and  clear  of  all 
encumbrances,  at  private  sale,  upon  the  premises   [or  if  at  public  auction 

and  if  the  property  be  real  estate then  upon  the  premises 

or  at  the  front  door  of  the  Court  house  of  the  county  wherein  the  said 

property  is  situated,  upon  the day  of ,  19.  .,  beginning  at  the- 

liour  in  the noon,  and  that  he  give  four  weeks  notice  of  the 

time  and  place  of  the  sale  thereof  by  advertisement  in  a  newspaper  of  gen- 
eral circulation  in  the  said  county  see  §  1939  of  said  treatise]  ;  and  that 
said  sale  be  subject  to  the  approval  of  the  Court; 

And  further  proceedings  herein  are  adjourned  to  the  ....  day  of 
at   ....   o'clock  in  the noon,  for  consideration  of  the  trustee's  re- 
port of  sale  and  for  order  of  distribution  hereunder. 


.  unofflciaiv  forms  in  bankruptcy.  1935 

[Form  No.  29.] 
Order  Confirming  Sale  and  Directing  Distribution. 

Upon  this  ....  day  of ,  19.  . ,  at  ....  o'clock  in  the noon 

by  adjournment  from  the  .  .  day  of ,  19.  .,  the  trustee's  proceedings 

imder  the  previous  order  of  sale  heretofore,  to-wit  on  the    ....    day  of 

,  19.  .,  granted  herein  came  on  for  approval  of  the  trustee's  report 

of  his  sale ;  and  said  report  having  been  examined,  and,  it  appearing 
therefrom  that  the  trustee  has  sold  the  prop'erty  in  said  petition  described 

at  private  sale,  free  and  clear  of  all  encumbrances,  to 1  .  .,  for 

the  sum  of  $ ,  and  that  said. sale  was  in  all  respects  regular  and  in 

accordance  with  said  previous  order  of  the  Court,  now  it  is  ordered  that 
said  report  be  and  it  hereby  is  approved  and  said  sale  confirmed  and  said 
trustee  is  directed  forthwith  to  execute  and  deliver  to  said  purchaser  a 
good  and  sufficient  instrument  of  title  to  said  property,  upon  receipt  of 
said  consideration ; 

And  the  Court  coming  on  to  distribute  the  proceeds  of  said  sale  in  ac- 
cordance with  the  previous  order  of  the  court  marshalling  the  liens  and 
interests  and  determining  their  validity,  extent  and  priority,  now  it  is  or- 
dered that  the  trustee  pay  out  of  the  said  proceeds  in  his  hands 

First,  the  costs  of  the  proceedings  herein,  taxed  as  follows,  to-wit: 
Referee's  commissions  $ ,  referee's  expenses  $ :  Trus- 
tee's commissions  $ ,  Trustee's  expenses  $ ,  for  abstract, 

$ ,  for  appraisers  $ ,  for  attorney's  fees  $ ,  for  ad- 
vertising $ ; 

Second,  the  taxes  herein,  $ ; 

Third,  to in  payment  of  his  mortgage  lien,  $ ; 

Fourth,  to ,  to  apply  upon  his  mortgage  lien,  $ ; 

Fifth,  to .,  the  wife  of  the  bankrupt  $ ,  the  com- 
muted value  of  her  inchoate  dower  interest ; 

Sixth,  the  remainder  if  any,  said  trustee  to  hold  in  his  hands  to  await 
the  further  order  of  the  Court. 


[Form  No.  30.] 
Order  of  Confirmation  of  Sale   [general]. 

Upon  the   ....    day  of    19.  . ,  at    o'clock  in  the   

noon,  the  trustee's  petition  to  sell  came  on  by  adjournment  for  hearing 
upon  the  report  of  the  trustee  of  sale,  and  said  report  having  been  ex- 
amined and  it  appearing  that  said  trustee  has  sold  said  property  in  said  pe- 
tition described,  to-wit :   

for  the  sum  of  $ to and  that  said  sale  was  in  all 

respects  regular  and  in  accordance  with  the  previous  orders  of  the  court 
and  for  the  highest  bid  obtainable,  now  it  is  ordered  that  said  report  be  and 
it  hereby  is  approved  and  said  sale  confirmed  and  said  trustee  is  directed 
forthwith  to  execute  and  deliver  to  said  purchaser  a  good  and  sufficient 
instrument  of  title  to  said  property  upon  payment  to  him  of  the  considera- 
tion aforesaid. 


1936  remington  on  bankruptcy. 

[Form  No.  31.] 
Trustee's  Bill  of  Sale. 

Knozv  all  men  by  these  presents,  That,  whereas  on  the  ....  day  of  .  .  .  ., 
19..,  by  the  consideration  of  the  District  Court  of  the  United  States  for 
the District  of was  duly  adjudged  bankrupt,  and  that. 

Whereas,  thereafter  the  undersigned, was  duly  appointed 

as  trustee  of  his  estate  in  bankruptcy,  who  thereupon  duly  qualified,  and 
ever  since  has  been  and  now  is  acting  as  such  trustee ;  and  that. 

Whereas,  thereafter,  upon  petition  filed  and  notices 'given,  an  order  of 

sale  was  duly  made  by  said  court,   [by Escp,  its  referee  in 

charge  of  said  bankruptcy]  authorizing  the  said  trustee  to  sell  [at  private 
sale]   public  auction    [for  not  less  than  three  fourths  the  appraised  value 

or  for  not  less  than  $ ]   the  following  property,  such  being 

[part  of]   in  said  petition  described,  to-wit : ; 

and  that. 

Whereas,  said as  such  trustee  did,  in  pursuance  of  said 

Older  sell  said  property  to at  [private  sale]   public  auction 

for  the  sum  of  $ such  sum  being  not  less  than  three  fourths  of 

the  appraised  value  thereof  [or  being  not  less  than  said  $ ],  sub- 
ject to  all  liens],  [or  free  and  clear  from  the  liens  and  claims  of  the  fol- 
lowing parties,  to-wit : ]  ;  and  thereupon  did  report  his  sale 

thereof  to  the  court ;  and  that. 

Whereas,  upon  due  examination  of  said  report  and  the  proceedings 
thereunder  the  court  found  the  same  to  be  correct  and  in  accordance  with 
the  previous  order  of  the  court  and  thereupon  upon  the  ....  day  of 
,  19.  .,  duly  confirmed  the  same. 

Now  therefore,  I,  the  said trustee  of  the  said , 

in  bankruptcy,  aforesaid,  by  virtue  of  said  order  of  sale,  and  by  virtue  of 
said  sale  and  the  confirmation  thereof,  and  of  the  statute  in  such  cases 
made  and  provided,  and  of  the  powers  vested  in  me,  and  for  and  in  con- 
sideration of  the  premises  and  the  sum  of  $ paid  to  me  by  the 

said    ,   receipt  whereof  is  hereby  acknowledged,  do  hereby  grant, 

bargain,  sell  and  convey  to  the  said  ,  his  heirs  and  assigns  for- 
ever, the  following  described  property,  to-wit :      

To  have  and  to  hohi  said  property  to  the  said    his  heirs  and 

assigns  forever,  as  fully  and  completely  as  the  said as  such  trustee 

in  bankruptcy,  by  virtue  of  said  order  of  sale  and  by  virtue -of  said  sale, 
and  confirmation  thereof,  and  of  *the  statute  made  and  provided  for  such 
cases,  might  or  should  sell  and  convey  the  same. 

In  zvitness  zvhcreof  the  said    ,  as  such  trustee,  has  hereunto  set 

his  hand  this  ....  day  of ,  19. .  . 


As  Trustee  of  the  Estate  of 

In  Bankruptcy. 


unofl^iciaiv  forms  in  bankruptcy.  1937 

[Form  No.  32.] 
Part  of  Order  of  Declaration  of  a  Dividend. 

And  it  appearing  that  there  will  remain  in  the  trustee's  hands  after  the 
payment  of  all  costs  of  administration,  expenses  and  priority  claims  here- 
inbefore allowed  and  that  probably  will  be  hereafter  allowed  herein,  a 
sum  such  that  50%  thereof  will  be  sufficient  to  pay  a  first  dividend 
of  ....  %  to  general  creditors  whose  claims  have  already  been  al- 
lowed and  probably  will  hereinafter  be  allowed,  now,  it  is  ordered  that  a 
first  dividend  of  .  .  .  .%  be  and  it  hereby  is  declared  payable  to  the 
following  creditors,  to-wit : 


[Form  No.  ZZ.'] 
Failure  of  Trustee  to  File  Report  Order. 

It  appearing  that ,  Escp,  the  trustee  herein  has  failed  for 

months  to  file   [or  since  the   ....   day  of   ,  19. .]   to  file  a 

report  of  his  proceedings,  now,  it  is  ordered  that  he  prepare  and  file  a 

report  of  his  proceedings  herein  on  or  before  the    ....    day  of   , 

A.  D.   19.  .  ;  5nd  that  due  service  of  this  order,  by  copy,  be  made  upon 
him,  returnable  the  ....   day  of 19. .  . 


[Form  No.  34.] 
Order  Approving  Report  of  Exemptions. 

Upon  the   ....    day  of   i\.  D.   19..,    [at  the   (final)   meeting  of 

creditors  of  the  above  bankruptcy,  of  which  meeting  ten  days  due  notice 
by  mail  was  given  to  all  creditors],  the  trustee's  report  of  property  set 
apart  by  him  to  the  bankrupt  as  exempt  was  presented  for  approval  and 
the  same  having  been  examined  and  found  correct  and  no  exceptions  hav- 
ing been  filed  thereto,  now,  it  is  ordered  that  said  report  of  exemptions  be 
and  it  hereby  is  approved  and  said  property  therein  described  set  apart  to 
the  bankrupt  as  exempt. 


[Form  No.  35.] 
Order  Appointing  Final  Meeting. 

The  trustee's  report  under  the  above  bankruptcy  having  been  filed  [or, 
it  appearing  that  it  is  time  for  the  estate  to  be  closed],  now  it  is  ordered 
that  the  final  meeting  of  creditors  be  held  at  the  office  of  the  Referee  at 

in  the  city  of   upon  the   ....    day  of   A.  D.   19.  . , 

at   . .   o'clock  in  the   noon ;    [and  it  is  further  ordered  that   

Escp,  trustee  herein,  be  and  he  hereby  is  recjuired  to  prepare  and  file, 

liefore  fifteen  days  set  for  said  final  meeting,  a  final  report  and  final  account 
of  his  proceedings  herein ;  and  it  is  ordered  that  due  service  of  this  order, 
by  copy,  be  forthwith  made  upon  said  trustee  returnable  upon  the    .... 

day  of ,  19..]. 

2  Rem  B— 47 


1938  remington  on  bankruptcy. 

[Form  No.  36.] 

Certificate  of  Final  Meeting  and  Orders  Closing  Estate  [no  assets] . 

This  being  the  day  appointed  by  the  Court  for  the  final  meeting  of  the 
creditors  under  the  above  bankruptcy,  of  which  due  notice  has  been  given 
by  mail  to  all  creditors,  I,  the  referee  in  charge  of  said  bankruptcy,  hereby 
certify  that  I  sat  at  the  time  and  place  in  the  order  of  the  Court  and  said 
notices  designated,  and  that  no  creditors  appeared  at  said  final  meeting 

and  the  final  report  and  account  of Esq.,  the  trustee  in  the 

above  entitled  proceedings,  having  been  examined  and  found  correct  and 
the  same  showing  that  the  trilstee  has  not  discovered  any  assets  belonging 
to  said  estate  or  made  any  disbursements  in  behalf  thereof:  now,  [on 
motion  of  the  trustee  and]  no  adverse  interest  being  represented,  it  is 
ordered  that  the  said  report  and  account  be  and  the  same  are  hereby  ap- 
proved and  allowed ;  the  said  trustee  discharged  of  his  trust  and  said  estate 
closed. 


[Form  Xo.  37.] 
Certificate  of  Referee  on  Proposed  Composition. 

I,  the  undersigned  referee  in  Bankruptcy,  in  charge  of  the  above  bank- 
ruptcy of hereby  certify  that  a  meeting  of  creditors  was  held  upon 

the  ....   day  of ,  A.  D.  19. .,  at   .  .   o'clock  in  the noon,  ai 

in  the  city  of in  said  District,  to  consider  an  offer  of  com- 
position to  be  proposed  by  the  bankrupt  thereat,  of  which  meeting  ten  days 
notice  by  mail  was  duly  given  to  all  creditors : 

And  I   further  certify  that  heretofore,  to-wit :  at  the  first  meeting  of 

creditors  in  said  bankruptcy  held  upon  the  ....  day  of A.  D.  19.  ., 

at  ..  o'clock  in  the  noon,  and  in  open  court,  said  bankrupt  sub- 
mitted himself  to  examination  in  accordance  with  law  and  was  duly  ex- 
amined by  creditors. 

And  I   further  certify  that  thereafter  and  upon  the  said    ....    day  of 

,  19.  .,  at  said  meeting  of  creditors  the  bankrupt  offered  terms  of 

composition  to  his  creditors,  as  follows,  to-wit :  ....  per  cent,  upon  all 
unsecured  debts  not  entitled  fo  priority  and  all  priority  claims  in  full. 

And  I  further  certify  that  the  claims  of  creditors  allowed  herein  are 
as    follows :      •. 

That  of  said  claims  the  following  have  accepted  in  writing,  which  origi- 
nal acceptances  are  hereto  attached,  marked  exhibit  "a,"  said  proposed 
composition  to-wit :       

and  that  thereby  a  majority  in  number  and  amount  of  creditors  whose 
claims  have  been  allowed  have  accepted  in  writing  said  offer  of  compo- 
sition of  ....  per  cent,  upon  all  unsecured  debts  not  entitled  to  priority ; 
And  I   further  certifv  that  the    total    number    of    unsecured  creditors 


UNOFFICIAL   FORMS   IN    BANKRUPTCY.  1939 

scheduled  by  the  bankrupt  herein  in  addition  to  the creditors  whose 

claims  have  heretofore  been  allowed  herein  is and  that  the  aggre- 
gate amount  of  the  claims  including  those  allowed  is  $ 

And  I  certify  that  the  following  are  the  debts,  and  costs  of  administra- 
tion entitled  to  priority  herein :     

And  I  finally  certify  that  the  bankrupt  has  deposited  with  the   

the  sum  of  $ and  that  said  sum  is  sufficient  to  pay  said  ....  %  to 

all  unsecured  creditors  whose  claims  have  been  allowed  and  in  addition 
thereto,  the  same  per  cent,  to  all  unsecured  creditors  whose  claims  have 
been  filed  and  that  have  been  scheduled  by  the  bankrupt  and  not  yet  al- 
lowed and  that  said  sum  is  sufficient  also  to  pay  the  said  priority  claims 
and  costs  of  administration  herein. 


[Form  No.  38.] 

Certificate  of  Referee  to  Record. 

I,  the  undersigned  Referee  in  charge  of  the  above  bankruptcy  hereby 
certify  that  the  foregoing  is  a  true  and  correct  record  of  appearances,  of 
papers  filed,  of  process  issued  in  the  proceedings  in  said  bankruptcy  be- 
fore me. 


[Form  No.  39.] 
Application  for  Appointment  of  Receiver  before  Adjudication. 

In    the    United  States    District    Court  for  the District  of   

In  Bankruptcy. 

^      ,  .  )  Application  for  Appointment  of  Re- 
in the  matter  of  (  •         r    -.i     aat  .       r    o  • 
„     ,        ,       >          ceiver     with    Warrant    of    bei- 
Bankrupt.      I                   , 

}  zurej . 

the  mover,  is  one  of  the  petitioning  creditors  in  the  in- 
voluntary petition  in  bankruptcy  pending  herein  against the  alleged 

bankrupt  above  named  [or,  is  a  creditor  of against  whom  an  in- 
voluntary petition  in  bankruptcy  is  pending  herein]  ;  and  moves  the  court 
for  an  order  appointing  a  receiver  herein  [and  for  a  warrant  to  issue  to 
him,  authorizing  and  directing  him  to  seize  the  property  of  said  alleged 
bankrupt  and  to  hold  the  same  pending  the  hearing  upon  said  petition]  ; 
and  this  he  prays  for  upon  the  ground  that  it  is  absolutely  necessary  for 
the  preservation  of  the  estate  [the  sole  ground  for  the  appointment  of  a 
receiver  in  bankruptcy,  see  §  384]  that  a  receiver  be  appointed,  [and, 
in  case  warrant  of  seizure  is  to  issue,  that  said  alleged  bankrupt  has  com- 
mitted an  act  of  bankruptcy,  to-wit,  has    [here  set  up  the   facts 

constituting  the  act  of  bankruptcy,  pleading  them  with  certainty,  see 
§  340]   and  has  neglected,    and  is  neglecting,    and  is  about  to  further  so 


1940  KKMINGTON    ON    BANKRUPTCY. 

neglect  his  property  that  it  has  deteriorated,  and  is  thereby  deteriorating, 
and  is  about  to  further  deteriorate  in  vahie,  [see  Bank.  Act  §  69]  ;  and 
this  is  so  for  the  following  facts,  to-wit,  [these  facts  constituting  the 
"absolute  necessity  for  the  preservation  of  the  estate"  might,  perhaps  more 
properly  be  set  forth  in  the  affidavit] 
United  States  of  America; 

District  of ; 

County  of ' ; 


being  first  duly  sworn,  upon  his  oath  says  he  is  a  cred- 
itor [one  of  the  petitioning  creditors]  in  the  above  entitled  proceedings 
and  that  the  facts  stated  in  his  foregoing  motion  for  the  appointment  of 
a  receiver  and  for  warrant  of  seizure  are  true ;  and  further  affiant  says 
that  said  alleged  bankrupt  has  been  recently  removing  large  quantities  of 
his  goods  from  his  store  at  night  time  etc.,  etc.  [set  forth  evidential  facts 
showing  it  to  be  absolutely  necessary  for  the  preservation  of  the  estate 
that  a  receiver  be  appointed.] 

Subscribed  and  sworn  to  before  me  by  the  said this  ....  day  of 

19...   . 


[Official  character. 'I 


[Form  No.  40.] 
Application  for  Appointment  of  Receivjer  after  Adjudication. 

In    the    United  States    District    Court  for  the District  of   .  .  .  . 

In  Bankruptcy. 
In  the  matter  of 


-n     1        ,      c  Application  for  Receiver. 

Bankrupt.      ) 


the  bankrupt  [or  one  of  the  creditors]  herein  moves  the 

court  for  an  order  appointing  a  receiver ;  and  this  he  asks  upon  the  ground 
that  it  is  absolutely  necessary  for  the  preservation  of  the  estate  that  a  re- 
ceiver be  appointed  [this  is  the  sole  ground  available  in  bankruptcy  for 
the  appointment  of  a  receiver,  see  §  384]  to  take  charge  of  the  assets 
and  protect  the  same  [and,  if  so,  "to  continue  the  business"]  until  the  ap- 
pointment of  a  trustee ;  and  this  is  so  for  the  following  facts,  to-wit : 

A  composition  is  about  to  be  offered  by  the  bankrupt  to  his  creditors,  and 
the  object  thereof  would  be  defeated  if  the  business  be  not  continued  so 
that  the  same  may  be  turned  over  to  the  bankrupt  undiminished  in  value 
as  a  going  concern,  in  case  said  composition  be  accepted. 

Or,  the  assets  of  the  bankrupt  consist  of  a  stock  of  groceries,  which  are 
largely  of  a  perishable  nature  and  should  be  immediately  sold. 

Or,  there  are  unfinished  goods  in  process  of  manufacture  all  value  of 


UNOFFICIAL   FORMS   IN    BANKRUPTCY.  1941 

which  will  virtually  be  lost  if  the  business  be  not  conducted  to  the  extent, 
at  any  rate,  of  completing  the  manufacture  of  said  goods. 

Or,  the  assets  are.  exposed  and  in  danger  of  loss. 

Or,  the  assets  of  the  bankrupt  occupy  a  room  jointly  with  those  of  an- 
other person,  and  such  person  insists  upon  continuing  his  own  business  and 
in  keeping  the  place  open  to  the  public,  and  the  bankrupt's  assets  are  left 
exposed  and  uncared  for. 


United  States  of  America ; 

District  of ; 

County  of ; 

being  first  duly  sworn,  upon  his  oath  says  he  is  the  above 

named  [bankrupt]  creditor,  and  that  the  facts  stated  in  his  foregoing  ap- 
plication are  true. 

Subscribed  and  sworn  to  before  me  by  the  said this  ....  day  of 

19... 


[Officml  character.'] 


[Form  No.  41.] 
Petitions  to  Referee  for  Restaining  Order  or  Stay  of  Suit. 

In    the    United  States    District    Court  for  the   District  of   

In  Bankruptcy. 

In  the  matter  of  Petition  for  Restraining  Order   [In- 
Bankrupt.  junction]    [Stay  of  Suit]. 

As  Trustee 

[Receiver]    [Creditor  before  Appoint- 
ment of  Receiver  of  Trustee] 

Plaintiff 


Defendant. 

Plaintiff  is  the  duly  appointed,  qualified  and  acting  trustee  [receiver]  in 
the  above  entitled  bankruptcy. 

[Or,  Plaintiff  is  a  creditor  of  the  above  named  bankrupt,  and  no  receiver 
nor  trustee  has  yet  been  appointed  herein.] 

Defendant  is  the  bankrupt   [or,  is   etc.] 

Defendant  is  threatening  to  remove  certain  of  the  property  belonging  to 
the  estate,  to-wit :     

and,    unless  restrained,    will    remove    the    same     [or    state    other    acts 
threatened]. 

Defendant  is  plaintiff'  and   bankrupt  is  defendant   in  a  certain  suit  in 

replevin    [or  in   a  certain  attachment  suit]    now  pending,  before    


1942  REMI^XTON    ON    BANKRUPTCY. 

of county ,  wherein  certain  of  the  property  belonging 

to  the  estate  has  been  seized ;  and  the  trial  of  the  said  suit  [or  sale  under 

said  attachment]    will  be  had  on  the    ....    day  of   ,  unless  sooner 

restrained. 

This  plaintiff  has  applied  to  said  court  for  a  stay  of  said  repleyin  suit 
until  a  trustee  could  be  appointed  who  could  intervene  in  behalf  of  the 
creditors  in  bankruptcy,  but  said  court  has  refused  to  grant  the  same. 

Or,  said  attachment  was  obtained  within  the  four  months  preceding  the 
adjudication  of  bankruptcy  herein  and  at  a  time  when  the  bankrupt  was 
insolvent;  [and  plaintiff  has  applied  to  said  court  for  the  surrender  of 
said  property — or  plaintiff  has  applied  to  said  court  for  a  stay  of  said 
attachment  suit  but  said  court  has  refuged  to  stay  the  same.] 

Time  is  too  short  for  the  giving  of  notice,  and  to  require  the  giving  of 
notice  would  defeat  the  objects  hereof. 

Wherefore,  plaintiff  prays  for  a  restraining  order  to  issue  upon  defend- 
ant restraining  him  from  [removing  or  disturbing  in  any  way  the  said 
property  and  from  etc.,  etc ]. 

[Or,  from  prosecuting  by  himself  or  by  any  agent  or  attorney,  said 
replevin  suit — or  said  attachment  sale  etc.,  etc.] 

And  further  prays  that  said  restraining  order  be  issued  without  notice 
upon  said  defendant  [and  that  in  the  attachment  case  upon  flnal  hearing, 
the  same  be  made  a  perpetual  injunction]  ;  and  finally,  prays  for  such  other 
and  further  relief  as  in  equity  is  proper. 


[Verification] 


[Form  No.  42.] 
Petition  for  Summary  Order. 

Iv    the    United  States    District    Court  for  the District  of 

Division, 

In  Bankruptcy. 

In  the  matter  of  )         -n    •  • 

Bai  krunt       "         I^etition  for  Summary  Order. 

is  the  duly  appointed,  qualified  and  acting  trustee  in  bank- 
ruptcy of  the  estate  of of  bankrupt  in  the  above  entitled  proceed- 

ir.gs. 

Said the  said  bankrupt  [agent  of  said  bankrupt]  has  within  his 

possession  [or  control]  the  following  property  belonging  to  the  said  trus- 
tee, to-wit :    ; 

which  property  the  said wrongfully  refuses  to  deliver  to  said  trustee. 

Wherefore,  said  trustee  prays  the  court  for  an  order  upon  said  


UNOFFICIAL   FORMS   IN   BANKRUPTCY.  1943 

the  said  bankrupt  [or  the  said  agent  of  said  bankrupt]  requiring  him,  the 
said forthwith  to  surrender  to  said  trustee  the  said  property. 


United  States  of  America; 

District  of ; 

County  of ; 

being  fjrst  duly  sworn,  upon  his  oath  says  he  is  the  above 

named  trustee  and  that  the  facts  stated  in  his  foregoing  petition  are  true, 
as  he  beheves. 


Subscribed  and  sworn  to  before  me  by  the  said this  ....  day  of 

....,  19... 


Notary  Public. 


[Form  No.  43.] 
Petition  of for  Order  of  Surrender  or  [Reclamation]. 

In    the    United  States    District    Court  for  the District  of   

Division, 

In  Bankruptcy. 

In  the  matter  of  ]   Petition   of    for     Order    of 

Bankrupt,      j"  Surrender  [or  Reclamation]. 

is  a  corporation  duly  organized  and  existing  under  and 

by  virtue  of  law,  [or  is  a  partnership,  etc.,  etc. — alleging  other  capacity 
if  any]. 

is  the  duly  appointed,  qualified  and  acting  trustee  [re- 
ceiver] in  bankruptcy  of  the  estate  of  the  above  named bankrupt ; 

and  as  such  is  in  possession  of  the  following  described  property,  to-wit: 

Said    is  the  property  of this  petitioner    [or  this 

petitioner  has  right  of  possession  of  said  property]  by  virtue  of  [absolute 
ownership ;  or  conditional  sale  wherein  the  condition  has  been  broken  and 

the  title  become  absolute  in  the  petitioner,  etc.]  and  said is  entitled 

to  the  immediate  possession  thereof. 

Wherefore,  said prays*  the  Court  for  an  order  upon  said 

as  such  trustee  [or  receiver]  requiring  him  forthwith  to  surrender 

said  property  to  this  petitioner. 


United  States  of  America ; 

......  District  of ; 

County  of ; 

being  first  duly  sworn  upon  his  oath  says  that  he  is  the 


1944  REMIXGTOX  OX  BANKRUPTCY.  • 

above  named  claimant  and  that  the  facts  stated  in  his  foregoing  petition 
are  true,  as  he  beheves. 

Subscribed  and  sworn  to  before  me  bv  the  said this  .  .  .  .  day  of 

,19...  "  .        - 

Notary  Public. 


[Form  Xo.  44.] 

Petition  of  Assignee  [receiver]  for  Allowance  of  Lien  upon  Assets. 

In    the    United  States    District    Court  for  the District  of   

Division, 

In  Bankruptcy. 

In  the  matter  of  )   Petition  as  Assignee   [Receiver]    for 
Bankrupt.      \       Allowance  of  Lien  upon  Assets. 

On  the  ....  day  of 19.  . ,  by  the  court  of , County. 

was  duly  appointed  assignee    [receiver]    of  the  property 

[certain  property]   of the  above  named  bankrupt,  and  thereafter 

duly  qualified  as  such;  thereafter,  to-wit,  within  four  months  from  the 
date  of  said  appointment,  a  petition  in  involuntary  bankruptcy  [a  vol- 
untary petition  in  bankruptcy]   was  filed  against  [by]  the  said and 

thereafter  the  said was  duly  adjudged  bankrupt  herein.     The  said 

as  assignee   [receiver]   as  aforesaid,  has  surrendered  the  assets  in 

his  custody  to  the  trustee  in  bankruptcy  herein ;  and  now  is  entitled  to  a 
lien  thereon  for  his  reasonable  compensation  and  expenses  for  the  care 
and  preservation  of  the  estate  whilst  the  same  was  in  his  custody  as  such 
assignee    [receiver]    as  follows,  to-wit :      

]]  hcrcforc,  said prays  the  Court  for  an  order  declaring  the  ex- 
istence, extent  and  priority  of  his  said  lien  upon  the  assets  so  surrendered 
by  him  and  directing  the  payment  of  the  same  to  him  from  the  proceeds 
thereof. 


United  States  of  America; 

District  of ; 

County  of ; 

being  first  duly  sworn  upon  his  oath  says  that  he  is  the 

above  named  assignee,  [receiver]  and  that  the  facts  stated  in  his  foregoing 
petition  are  true. 


Subscribed  and  sworn  to  before  me  by  the  said this  .         day  of 

19... 


Notary  Public. 


unofficial  forms  in  bankruptcy.  1945 

[Form  No.  45.] 

Trustee's  Petition  to  Marshal  Liens  and  for  Sale  of  Property  Free 

from  Liens,  etc. 

In    the    United  States    District    Court  for  the District  of   

Division, 

In  Bankruptcy. 

_      ,  .       '  )  Trustee's  Petition  to  Marshal  Liens 

In  the  matter  of  (  j    r       o  i       r  -n  ^     -n 

^     ,  V  and  for  bale  of  Property  tree 

Bankrupt.  <-  x  • 

J  from  Liens,  etc. 

as  trustee  of 

plaintiff 

vs.        * 

defendant 

is   the   duly  appointed,   qualified   and   acting   trustee   in 

bankruptcy  of the  bankrupt  herein;  and  as  such  has  in  his  posses- 
sion  [control]   the  following  described  property: 

and ,  claim  to  have  interest  in  said  property  by 

way  of  lien  or  otherwise   [the  validity  and  priority  of  which  said  trustee 

denies]  ;  and  said   claims  right  of  possession  of  a  portion  of  said 

property,  to-wit :     

[Said   is  the  wiie  of  the  bankrupt  and  as  such  has  an  irkchoate 

dower  interest  in  the  premises ;  she  is  of  the  age  of   ....   years,  and  the 

bankrupt  is  of  the  age  of  ....  years ;  and  the  said consents  to  the 

sale  of  said  property  free  of  her  inchoate  dower  interest,  the  commuted 
value  thereof  to  be  paid  to  her  in  lieu  of  her  said  interest.] 

It  is  for  the  best  interests  of  the  estate  that  the  said  property  be  sold  at 
private  sale  [public  auction]  free  and  clear  of  all  incumbrances  [subject 
to  encumbrances]. 

The  appraised  value  thereof  is  $ 

Wherefore as  such  trustee  prays  the  court  for  an  order  marshal- 
ing the  liens  upon  and  interests  in  said  property,  determining  the  validity, 
amount  and  priority  thereof,  ordering  its  sale  at  public  auction  or  private 
s:de  as  the  court  may  direct,  free  and  clear  of  all  encumbrances  and  inter- 
ests and  transfering  the  rights  of  the  parties  to  the  fund  derived  from  said 
sale,  and  further  prays  for  an  order  to  show  cause  upon  the  several  parties 
defendants  herein  requiring  them  to  set  up  their  rights  or  be  forever  de- 
barred from  asserting  the  same ;  and  for  such  other  and  further  relief  as  in 
equity  is  just. 


United  States  of  America ; 

District  of ; 

being  first  duly  sworn,    on    his  oath    says  he  is    the  above 


1946  kEMINGTON  ON  BANKRUPTCY. 

named  trustee  in  bankruptcy  and  that  the  facts  stated  in  his  foregoing  pe- 
tition are  true,  as  he  verily  believes. 

Subscribed  and  sworn  to  before  me  by  the  said this  .  .  .  . 

day  of ,19...  '• 

[Official  character.] 


[Form  No.  46.] 
Objections  to  Claim. 

In    the    United  States    District    Court  for  the District  of  

In  Bankruptcy. 

In  the  matter  of  )  ^,  .     ,•         ^     r«i   •        r 

^     ,  }  Objectipns  to  Claim  of 

Bankrupt.      ) 

is  the  duly  appointed,  qualified  and  acting  trustee  in  the 

above  bankruptcy,  and  as  such  objects  to  the  allowance  of  the  claim  of 
heretofore  filed  herein,  upon  the  following  grounds,  to-wit : 

[Preference]  Within  the  four  months  preceding  the  filing  of  the  bank- 
ruptcy petition  herein,  to-wit,  on  or  about  the  ....  day  of ,  19.  . ,  the 

bankrupt,  while  insolvent,  transferred  to  said who  was  then 

[and  still  is]  a  creditor,  the  following  described  property,  lo-wit : 

Said  transfer  was  made  to  apply  upon  a  pre-existing  debt  owed  by  the 
bankrupt  to  said  creditor ;  and  the  effect  of  the  said  transfer  is  to  give  said 
creditor  a  greater  percentage  of  his  claim  than  other  creditors  of  the  same 
class. 

Said the  creditor  aforesaid,  received  said  property  with 

reasonable  cause  for  believing  that  a  preference  was  intended  to  be  given 
him  thereby. 

Said the  creditor  aforesaid  has  not  surrendered  said  prop- 
erty so  as  aforesaid  received  by  him. 

[Payment]  Upon  said  claim  the  following  payments  have  been  made  in 
addition  to  those  credited  thereon  by  said  creditor : 


As  Trustee  in  Bankruptcy. 
United  States  of  America; 

District  of ; 

County  of ; 

being  first  duly  sworn,  upon  his  oath  says  he  is  the  object- 
ing trustee  [creditor]  in  the  above  entitled  proceedings,  and  that  the  facts 

stated  in  his  foregoing  objection  to  the  claim  of are  true 

[as  he  verily  believes]. 

Subscribed  and  sworn  to  before  me  by  the  said this  .... 

day  of ,19... 


[Official  character.] 


unofficial  forms  ix  bankruptcy.  1947 

[Form  No.  47.] 
Petition  of for  Review  of  Referee's  Order. 

In   the   United   States  District  Court   for  the    District  of    

In  Bankruptcy. 

In  the  matter  of  )   Petition   of    for   Review   of 

Bankrupt.      \  Referee's  Order. 

Petitioner  is  the  duly  elected,  qualified  and  acting  trustee  of  the  above 
named  bankrupt,  [or,  petitioner  is  the  bankrupt  herein],  [or,  petitioner  is  a 
creditor  of  the  above  named  bankrupt]  and  as  such  was  a  party  to  the  fol- 
lowing certain  proceedings  in  said  bankruptcy  pending  before 

Esq.,  as  the  referee  in  bankruptcy  in  charge  thereof,  to-wit: 

Upon  the  hearing  thereof  a  final  order  was  made  by  the  said  referee,  as 
follows,   to-wit :    

To  which  order  petitioner  duly  excepted. 

Said  order  is  erroneous  in  this,  that   

Wherefore,  petitioner  prays  that  said  order  be  reviewed  and  reversed  [or 
modified  in  the  following  particulars,  to-wit]  and  that  he  be  restored  to  all 
things  he  has  lost  by  reason  of  said  error. 


[Form  No  48.] 
Petition  for  Reconsideration  and  Rejection  of  Claim. 

In    the    United  States    District    Court  for  the District  of   

In  Bankruptcy. 

In  the  matter  of  )   Petition     for     Reconsidi^ration     and 
Bankrupt.      \  Rejection  of  Claim. 

is  the  duly  elected,  c[ualified  and  acting  trustee  of  the  es- 
tate of  the  above  named  bankrupt. 

Heretofore,    to-wit,    upon  the  ....   day  of ,  19..,    the    claim    of 

was  allowed  herein  in  the  sum  of  $ 

At  the  time  of  said  allowance  the  trustee  was  not  elected  [or,  the  facts 
herein  stated  were  not  known  to  the  trustee]  ;  and  good  cause  exists  for  the 
vacating  of  said  order  of  allowance  heretofore  made  herein. 

Said  claim  should  be  expunged  [disallowed;  or  reduced  to  the  sum  of 
$ ]  for  the  following  facts,  to-wit: 

On  or  about  the  ....  day  of ,  19.  . ,  a  payment  of  $ was 


1948  REMINGTOX    OX    BANKRUPTCY. 

made  on  said  claim,  which  was  not  credited  in  the  said  order  of  allowance 
herein. 

Or,  [here  set  up  preference,  fraudulent  transfer,  usury,  want  of  capacity 
— or  whatever  defense  there  may  be  to  the  allowance  of  the  claim]. 


United  States  of  America ; 

District  of ; 

County  of ; 

being  duly  sworn  upon  his  oath  says  that  he  is  the  trustee 

in  the  above  bankruptcy  and  that  the  facts  stated  in  his  foregoing  petition 
for  reconsideration  and  rejection  [expunging  or  disallowance]  of  claim 
are  true   [as  he  verily  believes]. 

Subscribed  and  sworn  to  before  me  by  the  said this  .... 

day  of ,19... 

[Official  character.] 

[If  positively  sworn  to  it  would  seem,  on  principle,  that  the  positive  oath 
cf  the  trustee  should  be  sufficient  to  "overcome"  the  "prima  facie  case" 
made  by  the  deposition  for  proof  of  claim  itself.  But  see  ante,  §§  843,  844 
and  845]. 


[Form  Xo.  49.] 
Specifications  of  Grounds  of  Opposition  to  Bankrupt's  Discharge. 
In  the  United   States  District   Court,   for  the    District  of    

In  Bankruptcy. 

In  the  matter  of  (   Specifications  of  Grounds  of  Oppo- 
Bankrupt.      \         sition  to  Bankrupt's  Discharge. 

of in  the  County  of and  State  of , 

a  party  interested  in  the  estate  of  said bankrupt,  does  hereby 

oppose  the  granting  to  him  of  a  discharge  from  his  debts;  and  for  the 
grounds  of  such  opposition  does  file  the  following  specifications : 

First  Specification  [Failure  to  Keep  Books]  :  Said  Bankrupt  has,  with  in- 
tent to  conceal  his  financial  condition,  failed  to  keep  books  of  accounts  or 
records,  from  which  such  condition  might  be  ascertained. 

Second  Specification  [Destruction  of  Books]  :     Said  bankrupt  did  on  or 

about  the  ....  day  of ,  19.  . ,  destroy  a  certain which  was  a 

book  of  account  from  which  his  financial  condition  might  have  been  ascer- 
tained, the  precise  entries  of  which  this  objecting  creditor  is  unable,  for 
want  of  actual  knowledge  and  for  means  of  acquiring  knowledge  to  state, 
und  which  lie  more  properly  within  the  knowledge  of  the  bankrupt. 

Third  Specification  [Concealment  of  Assets]  :    On  or  about  the  ....  day 


UNOFFICIAL   FORMS   IN    BANKRUPTCY.  1949 

of ,  19.  .  whilst  a  bankrupt  and  after  the  appointment  and  quahfica- 

tion  of  his  trustee, the  above  named  bankrupt  knowingly 

and  fraudulently  concealed  the  following  assets  belonging  to  his  estate  from 

said  trustee,  to-wit : '. 

Fourth  Specification  [Concealment  by  Omitting  Fraudulently  Trans- 
ferred Property  from  Schedules]  :     On  or  about  the  ....   day  of , 

the  bankrupt,  for  the  purpose  of  hindering,  delaying  and  defrauding  his 

creditors,  transferred  to certain  of  his  property  as  follows, 

to-wit : • 

and  the  said  property  at  the  time  of  the  appointment  and  qualification  of  the 

trustee  herein  was  being  held  on  secret  trust  by  said for  the 

bankrupt. 

Said  bankrupt  knowingly  and  fraudulently  omitted  said  property  from 
his  schedule  of  assets  herein  and  failed  to  reveal  to  said  trustee  the  exist- 
ence of  the  same  or  the  facts  as  to  the  title  thereto  and  fraudulently  and 
knowingly  concealed  said  property,  so  as  aforesaid  belonging  to  his  estate, 
whilst  such  bankrupt,  from  his  said  trustee. 

Fifth  Specification  [False  Oath]  :    On  or  about  the  ....  day  of , 

in  the    bankruptcy    proceedings    of   , the    bankrupt 

herein  knowingly  and  fraudulently  made  a  false  oath  [or  account]  in 
[relation  to]  said  proceedings  in  bankruptcy,  as  follows,  to-wit:  said  bank- 
rupt omitted  the  following  property  from  his  schedules  and  yet  did  then  and 
there  knowingly  and  fraudulently  make  oath  to  said  schedules  that  they 
were  a  true  statement  of  his  assets  [or,  did  then  and  there,  after  being  duly 

sworn  on  general  examination,  state  that here  set  forth  the 

words]  whereas    the   truth    and    fact  were,  as    said    bankrupt   well    knew, 

that    

which  testimony  [omission]  was  material  in  that  it  pertained  to  the  dis- 
covery of  the  acts,  conduct  and  property  of  the  bankrupt  [in  that  the  said 
property  so  omitted  was  his  property  and  was  of  value]. 

Sixth  Specification    [Obtaining  Property  on  Credit]  : '  On  or  about  the 

....  day  of , the  above  named  bankrupt  obtained  on 

credit  the  following  described  property  from ;  and  he  ob- 
tained said  property  by  the  statement,  made  in  writing  to  such  person 
that    

Whereas  in  truth  and  fact and  said    statement 

was  materially  false  and  was  made  for  the  purpose  of  obtaining  such 
property  on  credit. 

[Verification] 


3950  "remington  on  bankruptcy. 

[Form  No.  50.] 

Answer    of   Lienholder   to    Trustee's    Petition   to  '  Marshal    Liens 

and  Sell. 

In   the  United   States  District  Court,   for  the    District  of    

In  Bankruptcy. 

T-      ,                     .  J  Answer  of  Lienholder   to   Trustee's 
in  the  matter  of  I  -n,--.-vriiT-  j 
^     ,  ■           Petition   to   ^Marshal   Liens   and 
Bankrupt.  \           g^^^ 

as  trustee 

plaintiit 

vs. 

defendant 

,  defendant  in  the  above  entitled  proceedings  to  sell,  has 

a  lien  upon  a  portion  of  the  property  in  said  petition  described,  to-wit 

by  reason  of  the  following  facts,  to-wit : 

On  or  about,  etc [here  set  up  facts  constituting  lien]. 

U'hcrcforc,  he  prays  the  court  for  an  order  finding  the  validity,  extent 
and  priority  of  his  said  lien  and  directing  the  sale  of  said  premises  free 
and  clear  of  all  liens  and  the  transfer  of  his  lien  to  the  proceeds  there- 
from; and  for  such  other  and  further  relief  as  is  just. 


[Verification] 


[Form  No.  51.] 

Answer  of  Bankrupt's  Wife  Consenting  to  Sale  Free  of  Her  In- 

choate  Dower. 

In  the  United   States  District  Court,   for  the    District  of    

In  Bankruptcy. 

T     ,1  ,,        J.  )  Answer  of    Bankrupt's   ^^'ife    Con- 

in  the  matter  of  r  .  ^  ,     fl,  ^  ^^      ^ 

T-,     1        ,       -  senting  to  Sale  Free  of  Her  In- 

Bankrupt.      \  .        '^  ^ 

!  choate  Dower. 

as  trustee 

plaintifif 

vs. 

.' defendant 

the  above  named  defendant,  is  the  wife  of  the  bankrupt 

and  is  of  the  age  of  ....  years,  said  bankrupt  being  of  the  age  of  .... 
years.  As  such  wife  she  is  entitled  to  an  inchoate  dower  interest  in  the 
property  of  said  petition  described  [or  in  the  following  portion  of  the  prop- 
erty in   said   petition   described,   to-wit : 


UNOFFICIAL   FORMS   IN    BANKRUPTCY.  1951 

She  consents  that  said  premises  may  be  sold  free  and  clear  of  her  in- 
choate dower  interest  and  that  the  same  may  be  transferred  to  the  pro- 
ceeds derived  from  said  sale,  and  that  out  of  said  proceeds  [of  said  por- 
tion of  said  property]  there  be  paid  to* her  the  commuted  value  of  her  said 
inchoate  dower  interest. 


[Verification] 


[Form  No.  52.] 
Petition  to   Compromise   Controversy. 

In  the  United   States  District  Court,   for  the    District  of    

In  Bankruptcy. 

In  the  matter  of  )  ^  ,.^.       ,     ^  ■      n     ^ 

_     ,  V  Petition  to  Compromise  Controversy. 
Bankrupt. 


is  the  duly  appointed,  qualified  and  acting  trustee  of  the 

estate  of  the  above  named  bankrupt. 

A  controversy  exists  between  said  estate  and  a  certain , 

the  nature  of  which  controversy  is  as  follows : 

Said  controversy  can  be  compromised  upon  the  following  terms, 
lo-wit :     

It  is  for  the  best  interest  of  the  estate  that  said  compromise  be  effected 
and  for  the  following  facts,  to-wit :   ; 

Wherefore  said  trustee  prays  the  court  for  an  order  autljorizing  and  ap- 
proving such  compromise. 


[Verification] 


[Form  No.  53.] 
Petition  for  Leave  to  Abandon. 

In  the  United   States  District  Court,   for  the    District  of  ■ . .  . . 

In  Bankruptcy. 

Tn  the  matter  of  )       -n    •  •       <-      t  ^-^       , 

■n     ,        ^   -.  ■       Fetition  for  Ueave  to  Abandon. 
Bankrupt.      \ 


is  the  duly  elected,  qualified  and  acting  trustee  of  the  es- 
tate of  the  above  named  bankrupt;  and  there  has  come  into  his  control  as 


1952  REMINGTON    ON    BANKRUPTCY. 

such  trustee  the  following  property,  to-wit : 


The  said  property  is  of  the  value  of  $ ,  but  is  encumbered  by  good 

and  valid  liens  in  excess  of  said  value  to  the  amount  of  $ [to-wit 

the   following  liens,    ] 

and  there  is  no  equity  therein  for  unsecured  creditors. 

Wherefore  this  trustee  prays  the  Court  for  an  order  authorizing  him  to 
abandon  all  title  to  said  property  and  to  disclaim  the  same. 


[Verification] 


TABLE  OF  CASES. 


TABLE  OF  CASES. 


Abbe,   In  re,  §  2796,  p.  1637. 

Abbey  Press,  In  re,  §  504,  p.  321;  §  523, 

p.   325;   §  537,  p.  332;  §  562,  p.   340;   § 

1531,  p.  915;  §  1533,  p.  917;  §  1534,  p. 

917;  §  1537,  p.  918;  §  1541,  p.  919; 

§  1573,  p.  943;  §  2103,  p.  1299;  §  2861, 

p.    1670. 
Abbott,  Summers  z'. 
Ablowich,  In  re,  §  2550,  p.  1536. 
Ablowich  V.   Stursburg,   §   2544,  p.   1532. 
Abraham,  In  re,  §  2881,  p.  1690;  §  2891, 

p.    1698;    §    2908,    p.    1705;    §    2913,    p. 

1708;   §   2916,  p.   1709. 
Abraham,  D.,   In   re,   §   1855,  p.   1153;   § 

2948,  p.    1722. 
Abrahamson   &  Bretstein,   In  re,  §   381, 

p.  251. 
Abrahamson  v.  Bretstein,  §  1545,  p.  922; 

§   1807,  p.  1101;  §  1916,  p.   1194. 
Abraham  Steers   Lumber  Co.,   In  re,   § 

1280,    p.    757;    §    1333,    p.    781;    §    1369, 

p.     795. 
Abram,   In  re,  §   898,  p.   515;   §  2046,  p. 

1267;  §  2054,  p.   1277;   §  2054,  p.   1278. 
Adamant  Plaster   Co.,   In  re,  §   1147,  p. 

677;  §  1199^  p.  697. 


Adams    Sartorial    Co.,    In    re,    §    358,    p. 

240;  §  2132,  p.  1310. 
Adams  z'.  Terrell,  §  55,  p.  64;  §  96,  p.  92. 
Adelman,  Thomas  v. 
Adler,  In  re,  §  463,  p.  304;  §  464,  p.  304; 

§   466,   p.   305;   §   472,  p.  306;   §   676,  p. 

412;  §  1819,  p.  1115;  §  1839,  p.  1133; 

§  1840,  p.  1134;  §  1842,  p.  1138;  § 

1844,  p.  1141;  §  1845,  p.  1142;  §  1848, 

p.  1145;  §  1850,  p.  1148;  §  1852,  p. 

1152;  §  2410,  p.  1454;  §  2668,  p.  1588; 


Ad 


^amo.  In  re,  §  931,  p.  524;  §  1165,  p. 
685;  §  1696,  p.  1046;  §  1999,  p.  1236;  § 
2229,  p.  1364. 


Adams,  In  re,  §  17,  p.  32;  §  229,  p.  179 
§  399,  p.  261;  §  451,  p.  298;  §  527,  p 
330;  §  653,  p.  396;  §  656,  p.  399;  §  657 
p.  400;  §  672,  p.  407;  §  672,  p.  409 
§  674,  p.  411;  §  688,  p.  417;  §  987,  p 
551;  §  1212,  p.  710;  §  1217,  p.  722 
§  1218,  p.  722;  §  1234,  p.  734;  §  1280 
p.  757;  §  1439,  p.  851;  §  l-i53,  p.  862: 
§  1473,  p.  877;  §  1489,  p.  886;  §  1628, 
p.  994;  §  1652,  p.  1022;  §  1677,  p.  1034; 
§  1682,  p.  1035;  §  1718,  p.  1060;  §  1799, 

„       1  nnn  .•   S      -i  QRri       ,,       i         *         "       


§  1682,  p.  1035;  §  1718,  p.  1060; 
p.  1099;"  §  1863,  p.  1159;  §  1 
1160;  §  1865,  p.  1161;  §   1901,  p 


Ad 


,  ^_  ,  „  _864,  p 

XXV.W,  5  .^^^,  p.  1161;  §  1901,  p.  1188 
§  1918,  p.  1195;  §  2516,  p.  1516;  §2522 
p.  1523;  §  2595,  p.  1552;  §  2702  •- 
1601;  §  2702,  p.  1602 


1601;  §  2702,  p.  1602. 

dams,  Chas.  D.,  In  re,  §  1901.  p.  1188; 

§  1902,  p.  1190;  §  1906,  p.  1190. 


1152;  §  2410,  p.  1454;  §  2668, 
§  2691,  p.  1597;  §  2691,  p. 
2783,  p.  1628;  §  2784,  p.  1629; 
p.  1629. 


P- 

p.  1588; 

1598;  § 

§  2785, 


Adl 


84,  p. 
"^■85,  p.  1442; 


er  f.  Jones.  §  2374,  p.  143 

p.  1440;  §  2380,  p.  1440;  §  23 

1441;  §  238 

§  2413,  p.   1455. 
Ahl  V.   Thornor,   §   611,   p.    363;   §   1311, 

p.  768. 
Aiken,    Lambert    &    Co.    v.    Haskins,    § 

692,   p.    419;   §   692,   p.   420;   §   2735;    p. 

1613;  §  2737,  p.  1614;  §  2738,  p.  1614. 
Akron    Mach.    Co.,    Farmers'    &    Mer- 
chants' Bk.  z'. 
Akron  Twine  &  Cordage  Co.,  In  re.,  § 

794,  p.  464;  §  802,  p.  468. 
Albrecht,  In  re,  §  2449,  p.  1486;  §  2453, 

p.   1486. 
Alden,    In   re,   §    973,    p.    546;    §    1209,    p. 

707;   §   1407,   p.    834;   §   1409,   p.   835;   § 

1971,  p.  1226. 
Alden    Electric    Co.,    In    re,    §    2851,    p. 

1664;  §  2987,  p.  1734. 
Alden,  Jacquith  z\ 
Alderson.   In   re,   §   683,   p.   414;    §   2731, 

p.  1611. 
Aldridge,    Hooks   v. 
Allen  Co.,  Hark  v. 
Allen,  Leggett  v. 
Allen  Miles  Co.,  Klipstein  v. 
Allen,  Spike  Iron  Co.  v. 
Allen,  Viquesnay  Z'. 
Alex,    In    re,    §    1098,   p.    623;    §    1099,    p. 

624. 
Alexander,  In  re.  §  1342,  p.  785. 
Alex  z'.  Union  Surety  &  Guaranty  Co., 

§   877,   p.  501. 


1956 


table:  of  cases. 


420; 


i40: 


P- 


Alfred,  In  re,  §  1047,  p.  597 
Allen,  In  re,  §  383,  p.  252;  \ 

§  1121,  p.  640;  §  2014,  p.   i^o^. 
Allen    &   Co.,    In   re,    §    1047,   p.    596;    § 

1047,  p.  598;  §  1082,  p.  613;  §  1096,  p. 

622;    §    1100,    p.    624;    §    1104,    p.    628; 

§  1447,  p.  855;   §   1485,  p.  884;  §   1487, 

p.  885;  §  1488,  p.  885. 
Allendorf,  In  re,  §  2522,  p.  1521;  §  2545, 

p.    1533;    §    2549,    p.    1536;    §    2550,    o. 

1537;  §  2556,  p.  1540;  §  2558,  p.  15 

§    2559,    p.    1541;    §    2560,    p.    1542; 

2570,  p.   1544. 
Allen  V.  Grant,  §  976,  p.     547;  §  977, 

547;  §  977,  p.  548. 
Allen    v.    Hollander,    §    1140,    p.    668;    § 

1141.  p.   672;  §  1146,  p.  676. 
Allgair    v.    Fisher,    §    1938,    p.    1209;    § 

1938,   p.  1210;   §  2826,  p.  1653;   §  2829, 

p.  1655;  §  2837,  p.  1657. 
Allison,  Hale  v. 
Allison   Lumber   Co.,   In   re,  §   1616,  p. 

983;   §   1620,   p.  986;   §   1621,   p.- 986;   § 

1622,  p.  988;  §  1623,  p.  988;  §  1629,  p. 

997;  §  1633,  p.  1007;  §  1993,  p.  1234; 

§  2014,  p.  1252;  §  2104,  p.  1300. 
Alphin  &  Lake  Cotton  Co.,  In  re,  § 

456,  p.  302;  §  480,  p.  309;  §  1527,  p. 

914;  §  1555,  p.  930;  §  1557,  p. 

-lO.   S   -IQOC   .^   -I  1  OO  • 


1821 
p.  1133 


§  1555,  p.  930;  §  1557,  p.  933;  § 
,  p.  1118;  §  1836,  p.  1129;  §  1839, 
133;  §  1842,  p.  1137;  §  1842,  p. 


1139;  S  1848,  p.  114o;  S  1851,  p.  1151, 
§  1856,  p.  1154;  §  1866,  p.  1162;  §  2126, 
p.  1309. 


p.    iiiJd;    s    i»-i^)    P-    -Li-5';    §    184 

1139;  §  1848,  p.  1145;  § 

§  1856,  p.  1154;  §  1866.  t 

p.  1309. 
Altman,   In  re,  §   58,  p.  65;  §  67,  p.   73; 

§  68,  p.  73;  §  69,  p.  74. 
Am.  Mfg.  &  Enamel  Co..  Clark  z\ 
American  Brewing  Co.,  In  re,  §  444,  p. 

285;  §   1273,  p.  751. 
American   File   Co.  v.  Garrett,  §  935,  p. 

524. 
Am 

p.  04;^;  §  18-10,  p.  i. 
Ames  V.   Moir,  §  2785,  p.  1630 
Amsinck  v.  Bean,  §  2794,  p.  1634 
Anderson,  Cleland  v. 


24. 

lerican   Trust   Co.  v.   Wallis,  §   1128, 

».  643;  §  1845,  p.  1143. 


Anaerson,  ».^ieianQ  v. 

Anderson,  In  re,  §  683, 

450;  §  1024,  p.  573;  §  1087,  p.  615; 
§  1808,  p.  1108;  §  1819,  p.  1115;  § 
1841,  p.  1135;  §  1842,  p.  1138;  §  1850, 
p.  1147;  §  1856,  p.  1154;  §  1857,  p. 
1155;  §  1859,  p.  1157;  §  204.5,  p.  1267; 


§    2078,    p.    1287;    §    2082,    p.    1288;    § 

2085,  p.  1289;   §  2086,  p.   1291;   §  2426, 

p.  1465;  §  2756,  p.  1620. 
Anderson,  Johnson  v. 
Anderson,    McGahan   v. 
Anderson,    Marvin   v. 
Anderson,    State   of   New   Jersey   v. 
Anders    Push    Button    Tel.    Co.,    In    re, 

§    2103,    p.    1299;    §    2103,    p.    1300;    § 

2104,  p.  1300;  §  2105,  p.   1300;  §   2112, 

p.   1303. 
Andra;  Co.,  In  re,  §  1140,  p.  669;  §  1209, 

p.    708;   §   1270,   p.   749;   §    1440,   p.   851; 

§  1507,  p.  901. 
Andre,  In  re,  §  356,  p.  239;  §  1652,  p. 

1021;  §  1653,  p.. 1023;  §  1662,  p.  1030; 

§  1696,  p.  1046;  §  1699,  p.  1049;  § 

1796,  p.  1092;  §  1828,  p.  1125;  §  1863, 

p.  1159. 
Andrews,  In  re,  §  1343,  p.  786;  §  1343, 

p.  787;  §  1395,  p.  823;  §  1396,  p.  824; 

§  1399,  p.  826;  §  1399,  p.  827;  §  1401, 

p.  829;  §  1402,  p.  830;  §  1403,  p.  830; 

§  1403,  p.  831;  §  1405,  p.  833;  §  1406, 

p.  834;  §  1408,  p.  835;  §  1410,  p.  836; 

§  1410,  p.  837;  §  1529,  p.  914;   §  1531, 

p.  915. 
Andrews,   Landry  v. 
Andrews   v.    Mather,    §    1138,   p.    665;    § 

1207,    p.    699;    §    1217,    p.    722;    §    1265, 

p.    745;    §    1684,    p.    1036;    §    1687,    p. 

1038;  §   1725,  p.   1063;   §  -1760,  p.   1074. 
Ankeny,   In  re,  §   819,  p.  475;   §   820,   p. 

476;   §  837,  p.  483. 
Anonymous,  §  288,  p.  208. 
Anson,   In   re,   §   2135,   p.    1317;   §   2182, 

p.  1342. 
Antigo  Screen  Door  Co.,  In  re,  §  1033, 

p.   585;   §   1140,  p.  668;   §  1236,  p.   734; 

§  1238,  p.   735;  §   1582,  p.  949;  §  1696, 

p.    1045;    §    1797,    p.    1096;    §    1798,    p. 

1098;  §  1885,  p.  1178;  §  2869,  p.  1683; 

§  2.875,  p.  1687;  §  2884,  p.  1695. 
Antisdell,  In  re,  §   2505,  p.  1508. 
.•\ppel,  In  re,  §  306,  p.  219. 
Arend,  National  Bank  v. 
Ark.  Central  Ry.   Co.,  Credit'  Co.  v. 
Arkell,  In  re,  §  2748,  p.  1618. 
Armstrong,  Scott  v. 
Arlington  v.  Arlington,  §  683,  p.  415. 
Armstrong,  In  re,  §  1277,  p.  755;  §  1395, 

p.  822;  §  1403,  p.  831. 


TABLE  OF  CASES. 


1957 


Arndt,  In  re,  §  1427,  p.  846. 

Arnett,    In   re,   §   468,   p.   305;   §    898,   p. 

514;   §   901,   p.   516;    §    1923,   p.    1196. 
Arnold  &  Co.,  In  re,   §   636,   p.   378;   § 

782,   p.   462;    §    803,   p.   470;    §    1100,   p. 

626;  §   1463,  p.  871. 
Arnold  v.  Maynard,  §  131,  p.  115. 
Arnstein,   In  re,  §  640,  p.  381;  §  65: 

393;    §    653,    p.    398;    §    654,    p.    39' 

656,  p.  399;  §  665,  p.  405;  §  711,  p. 

§  1317,  p.  773. 
Arrington  v.  Arrington,  §  2731,  p.  1610; 

§  2756,  p.  1620. 
Arrington    Co.,    In   re,   §   2384,   p.   1441: 

§   2385,  p.   1441;   §   2386,   p.   1442. 
Ashcroft,   Nutting  v. 


,     P- 

;  § 


Ashcroft,   Nutting  v. 

Associates  Realty  Co.,  Lindeke  v. 

Atkins  V.  Bank,  §  131,  p.  114. 

"  tkins  V.  Wilcox,  §  653,  p.  393;  §  653,  p. 
394;  §  655,  p.  399;  §  656,  p.  399;  §  659, 
p.  401;  §  660,  p.  402;  §  2730,  p.  1610. 


!;  S  ^75b,  p.  ibr^u. 

ler    &     Co.,     First     Nat'l 


re,  §  976, 


^.   _._,  „ p.  402;  §  2730,  p.  1610 

Atkinson,  Gregory  v. 

Audubon  v.   Shufeldt,   §   683,   p.   415;    § 

2731,  p.  1612;  §  2756,  p.  1620. 
Aultman,     Millr-     «      ~         ~'' 

Bk.  V. 
Aurrol  v.  Mills,  §  656,  p.  399. 
Austin,  In  re,  §  1124,  p.  641;  §  1134,  p. 

646;   §   1140,  p.  671;  §   1377,  p.   803. 
Auto   Car  Co.,  Rowland  v. 
Automobile  &  Motor  Co.,  In 

p.    547. 
Averill,   In   re,   §   2087,   p.   1291;   §   2090, 

p.  1294;  §  2091,  p.  1295. 
Ayres  v.   Cone,  §  210,  p.   172;  §   317,  p. 

222;  §  444,  p.  284;  §  444,  p.  288;  §  447, 

p.    291;    §    447,   p.    295;    §    789,   p.    463; 

§   790,  p.   463;  §  824,  p.  477;   §   827,  p. 

480;  §  2827,  p.  1653;  §  2835,  p.  1656. 
Babbitt  v.   Kelly,  §  1217,  p.  722;  §  1379, 

p.  804;  §  1395,  p.  822;  §  1403,  p.  830; 

§  1412,  p.  838. 
Babbitt,  Walburn  v. 
Baber,    In   re,    §    896,    p.    511;    §    898,   p. 

513;  §   898,  p.   514. 
Bachron,  In  re,  §  2550,  p.  1537. 
Bacon,   In   re,   §   937,  p.   525;   §   1826,   p. 

1121;  §  1868,  p.  1162;  §  1870,  p.  1163; 

§  1887,  p.  1181;  §  1888,  p.  1181. 
Bacon    v.    Roberts,    §    2851,    p.    1663;    § 

2851,  p.  1664. 
Bacon,  Roden  Grocery  Co.  v. 


Baden  v.  Bertenshaw,  §  113,  p.  108;  § 
118,  p.  110;  §  1277,  p.  755;  §  1395,  p. 
822;  §  1397,  p.  825;  §  1402,  p.  830;  § 
1403,  p.  831;  §  1405,  p.  832. 

Baer  v.  Grell,  §   464, 

Raprnrnnf       Tn      rp       8 


p.  1399. 

Bailej^  Hibbard  v. 

Bailey,  In  re,  §  824,  p.  477;  §  826,  p. 
479;  §  827,  p.  479 ;  §  1189,  p.  695;  § 
1190,  p.  695;  §  1283,  p.  758;  §  1284, 
p.  758;  §  1419,  p.  841;  §  1429,  p.  848; 
§  1448,  p.  857;  §  1451,  p.  861;  §  1477, 
p.  879;  §  1478,  p.  880;  §  1478,  p.  881; 
§  1718,  p.  1060;  §  1719,  p.  1061. 

Bailey  z:  Loeb,  §  653,  p.  394;  §  653,  p. 
398;  §  656,  p.  399. 

Baird  &  Co.,  In  re,  §  716,  p.  429;  §  723, 

p.  436;  §  727,  p.  437;  §  728,  p.  437; 

§  826,  p.  479;  §  897,  p.  513;  §  898,  p. 

513;  §  898,  p.  515;  §  1112,  p.  635;  § 

1207,  p.  700;  §  1431,  p.  848;  §  1462,  p. 

868;  §  1462,  p.  869;  §  1489,  p.  887;  § 

1491,  p.  889;  §  1863,  p.  1159;  §  1864, 

p.  1159;  §  1865,  p.  1161. 
Baker,  In  re,  §  464,  p.  304;  §  863,  p. 

414;  §  683,  p.  415;  §  2146,  p.  1323; 

§    2731,    p.    1611;    §    2758,    p.    1621;    § 

2826,  p.   1653;   §  2949,  p.   1723;   §  2959, 

p.  1725;  §  2962,  p.  1726. 
Baker-Ricketson,    In   re,   §    150,   p.    130; 

§  150,  p.  131;  §  305,  p.  140. 
Baldwin,   In  re,  §  2610,  p.  1562;   §  2612, 

p.   1562;   §   2627,   p.  1567. 
Baldwin  v.  Hale,  §  1627,  p.  993. 

all,  Boynton  v. 


Ba 
Ba 


Ball 
Ball 
1 
Ban 
Ban 
Ban 


,  ill  ic,  vj  oov,  p.  .i-iti,  5j  o±o,  p.  coo, 
1236,  p.  734;  §  1238,  p.  735;  §  1262, 
744;  §  1275,  p.  754;  §  1373,  p.  802; 
1901,  p.  1188;  §  1907,  p.  1191. 

ew,   Lins troth  Wagon  Co.  v. 
ou,  In  re,  §  1655,  p.  1029;  §  2864,  p. 
i82. 

donine.  Butter  v. 
':,  Atkins  z'. 
:,    Bardes    v. 


68 


1958. 


table;  of  cases. 


Bank  v.   Bruce,  §  1295,  p.  760;  §  1314, 

p.  770;  §  1321,  p.  775;  §  1326,  p.  777; 

§   1500,  p.    896;   §    1507,   p.   901. 
Bank,   Chism  v. 
Bank  v.  Cook,  §  1399,  p.  826. 
Bank  v.   Craig  Bros.,  §  64,  p.  69;  §   64, 

p.   70;   §   147,   p.  129;   §   171,   p.   144;   § 

243,    p.    187;    §    245,    p.    188;    §    280,    p. 

204;  §  281,  p.  204. 
Bank,  Cunningham  z'. 
Bank  v.    De   Pauw    Co.,    §    104,   p.    104; 

§  183,  p.  152;  §   2511,  p.   1512. 
Bank    v.    Doolittle,    §    2356,    p.    1430;    § 

2377,  p.   1439;  §  2380,  p.  1440;  §   2381, 

p.    1440;    §    2382,    p.    1441;    §    2383,    p. 

1441;   §  2397,  p.  1449;  §  2399,  p.  1451; 

§    2405,    p.    1452;    §    2403,    p.    1452;    § 

2405,  p.   1452;  §   2811,  p.  1645. 
Bank  v.  Johnson,  §  552,  p.  336;  §  2335, 

p.    1418;    §    2336,    p.    1418;    §    2628,    p. 

1567;  §  2629,  p.   1567;  §  2845,  p.  1661; 

§  2845,  p.  1662;  §  2861,  p.  1670. 
Bank,  Houston  v. 
Bank  v.  Katz,  §   1455,  p.   863. 
Bank   of  Commerce  v.    Elliott,    §    1435, 

p.  849;  §  1455.  p.  863;  §  1648,  p.  1013; 

§    1650,    p.    1015;    §    2668,    p.    1588;    § 

2673,  p.  1590;  §  2682,  p.  1594;  §   2682, 

p.    1595;    §    2704,    p.    1603;    §    2706,    p. 

1603;  §  2709,  p.   1604. 
Bank  of  Dearborn  v.   Matney,  §  48,  p. 

60;  §   48,  p.   61;   §  50,  p.  62. 
Bank  of  Monroe,  Stedman  v. 
Bank,  Pepperdine  v. 
Bank  v.  Rome  Iron  Co.,  §  1144,  p.  673; 

§  1150,  p.   678;   §  1252,   p.  740;  §   1320, 

p.  774;  §  1320,  p.  775;  §  1324,  p.  776. 
Bank,   Shuts  v. 
Bank,  Stedman  v. 
Bank,  Warren  v. 
Bankrupt,  A,  In  re,  §  385,  p.  504. 
Banks,  In  re,  §  444,  p.  283. 
Bank  v.   Sawyer,   §   612,  p.   363;   §   1515, 

p.  904;  §  1517,  p.  904;  §  1518,  p.  904. 
Bank  v.  Sherman,  §  273,  p.  202;  §  1797, 

p.  1092. 
Bank  v.  Stevens  Estate,  §  2258,  p.  13: 
Bank    v.    Sundheim,    §    1297,    p.    763; 

1329,  p.  778;  §  1341,  p.  785;  §  1358, 

792;    §   1395,   p.    823;   §   1403,   p.   831 

1407,    p.    834. 
Bank   v.   Title   &   Trust   Co.,   §    1653, 


1384. 
§ 
■   P- 

;  § 


1027;  §  1655,  p.  1029;  §  1685.  p.  1036; 

§  1691,  p.  1042;  §  1692,  p.  1043;  §  1698, 

p.  1048;  §  1796,  p.  1089;  §  1855,  p. 

1154;  §  1863,  p.  1159;  §  2864,  p.  1680; 

§  2864,  p.  1682;  §  2870,  p.  1684;  §  2876, 

p.  1688;  §  2881,  p.  1690;  §  2911,  p. 

1706;  §  2937,  p.  1716;  §  2938,  p.  1717; 

§  2942,  p.  1720. 
Banner,  In  re,  §  674,  p.  412;  §  993,  p. 

553;  §  993,  p.  554;  §  1186,  p.  694;  § 

1191,    p.    695. 
Barber  t'.   Coit,  §  775,  p.  459;  §  1734,  p. 

1068. 
Barber,  In  re,  §  1971,  p.  1226;  §  2103,  p. 

1299;   §   2117,  p.   1305;  §  2206,  p.   1358. 
Barbour,   Barton  z'. 
Barclay    v.    Barclay,    §    683,    p.    415;    § 

2731,  p.  1611. 
Bard.    In   re,    §    1555,   p.   930;    §    2641,   p. 

1575. 
Barden,   In  re,   §   289,  p.   208. 
Bardes  v.   Bank,   §   20,  p.   37;   §    355,   p. 

238;    §    1138,   p.   665;   §   1399,   p.   827;   § 

1407,   p.    834;    §    1652,   p.    1020;   §    1653, 

p.  1024;  §  1696,  p.  1046;  §  1725  p.  1063; 

§    1813,    p.    1111;    §    1913,    p.    1192;    § 

2864,  p.  1680;   §  2864,  p.   1682;   §  2881, 

p.    1690;    §    3018,    p.    1746;    §    3020,    p. 

1747. 
Bardon,   In   re,  §   59,   p.   65. 
Barker,,  Brown  v. 
Barker    v.    Franklin,    §    1216,    p.    719;    § 

1219,   p.    723. 
Barker,   Metcalf  v. 
Barnes,    Dickas   v. 
Barnes,   Goodier 

arnes  Mfg.  C 

■  I 

606;  §  2748 


B 


arnes  Mfg.  Co.  z\  Norden,  §  962,  p. 
538;  §  1718,  p.  1060;  §  2702,  p.  1602; 
§  2713,  p.  1606;  §  2748,  p.  1618. 
arrett.  In  re,  §  368,  p.  244;  §  370,  p. 
245,  §  391,  p.  256;  §  393,  p.  257;  §  396, 
p.  258;  §  882,  p.  504;  §  1047,  p.  596; 
§  1281.  p.  757;  §  1317,  p.  774;  §  1370, 
p.  798;  §  1387  p.  818;  §  1421,  p.  843, 


S       J.OJ.1,       p.        .    11,       VJ       ±.)H/, 

,  o  -""■  p.  818;  §  1421,  p.  843, 
.3  1722,  p.  1062;  §  1723,  p.  1062;  §  1727, 
p.  1064;  §  1756,  p.  1073;  §  1901,  p. 
1188;  §  1921,  p.  1196;  §  2980,  p.  1732. 

ett  V.   Prince,   §   464,   p.   304;   §   472, 
306;  §  2785,  p.  1630. 

p.    164; 


Barre 


Barrett   Pub.   Co.,   In  re,  §  200, 
§  209,  p.  171. 


TABLE  OF  CASES. 


1959 


Barrow,   In   re,  §  972,  p.   545;   §   992,   p. 

553;  §  2014,  p.  1250. 
Barr  Pumping  Engine  Co.,  In  re,  §  2136, 

p.   1318;   §   2147,  p.   1324. 
Bartheleme,  In  re,  §  1216,  p.  719;  §  1395, 

p.  822;  §  1396,  p.  824;  §  1885,  p.  1178; 

§   1885,   p.    1180. 
Bartholomew  v.   Bean,  §   611,  p.   363;   § 

1311,  p.  768. 
Bartlett  v.  U.  S.,  §  2316,  p.  1410;  §  2321, 

p.    1411;    §    2321,    p.    1412;    §    2322,    p. 

1412. 
Barton  v.  Barbour,  §  404,  p.  263. 
Barton  Bros.,  In  re,  §  1819,  p.  1115;   § 

1845,  p.  1142;  §  1845,  p.  1144. 
Barton   Bros.  v.   Produce  Co.,   §    17,   p. 

33;   §  2467,  p.  1490;  §  2541,  p.  1529;  § 

2634,  p.   1570;   §  2649,  p.   1575;  §   2650, 

p.  1575;  §  3009,  p.  1741. 
Barton,  Crittenden  v. 
Barton  Hotel  Co.,  In  re,  §  94,  p.  90. 
Barton's   Estate,   In  re,  §  2300,  p.   1401; 

§  2303,  p.  1402;  §  2314,  p.  1405;  §  2416, 

p.   1462;   §   2579,  p.   1548. 
Basch,  In  re,  §  2691,  p.  1598;  §  2783,  p. 

1628;    §   2785,   p.    1630. 
Bashinski  v.   Talbott.   §   1095,   p.   621;   § 

1096,  p.  622;   §  1097,  p.  623. 
Bashline,   In   re,   §   1277,  p.   755;   §   1421, 

p.  843. 
Bass,  In  re,  §  755,  p.  447;  §  1024,  p.  572; 

§  1032,  p.  580. 
Bassett,   Cavanna  v. 
Bassett   v.    Thackara,    §    767,    p.    455;    § 

1980,  p.   1229;   §  1985,  p.  1230;  §  2668, 

p.  1588;  §  2673,  p.  1590. 
Batchelder  &  Lincoln  Co.  v.  Whitmore, 

§   803,   p.   469;    §   1272,   p.    750;    §   1378, 

p.  803;  §  2388,  p.  r444. 
Bates,  In  re,  §  2337,  p.   1368;  §  2255,  p. 

1375;  §   2796,  p.   1637. 
Bates  Machine  Co.,  In  re,  §  167,  p.  142; 

§   168,  p.   142. 
Baudouine,   In  re,  §  972,   p.   545;   §  975, 

p.  546;  §  1265,  p.  745;  §  1653,  p.  1028; 

§  1672,  p.  1032;  §  1796,  p.  1090;  §  1797, 

p.    1092;    §    2467,    p.    1490;    §    2541,    p. 

1529. 
Baughman,  In  re,  §  1582,  p.  955;  §  1809, 

p.    1109;    §    1816,    p.    1114;    §    1827,    p. 

1122;  §   1901,  p.   1188;   §   1903,  p.  1190. 


Bauman  v.  Feist,  §  2533,  p.  1526;  §  2540, 

p.   1528;   §   2550,  p.   1537. 
Baumann,  In  re,  §   1344,  p.   788;  §  1347, 

p.   789. 
Baumberger,   In  re  §   2549,  p.   1535. 
Bay  City  Irrigation  Co.,  In  re,  §  22,  p. 

38;   §   89,  p.   86;   §  94,  p.   89;   §  250,   p. 

189;   §  312,  p.  221. 

Beach  v.  Macon  Grocery  Company.,  § 
46,  p.  59;  §  243,  p.  187;  §  245,  p.  189;  § 
261,  p.  195;  §  269,  p.  199;  §  341,  p.  233; 
§  346,  p.  234;  §  355,  p.  237;  §  356,  p. 
239;  §  359,  p.  240;  §  359,  p.  241;  §  363, 
p.  243;  §  391,  p.  256;  §  393,  p.  257;  § 
398,  p.  259;  §  1652,  p.  1020;  §  1717,  p. 
1058;  §  1755,  p.  1073;  §  1901,  p.  1188; 
§  1921,  p.  1196. 

Beal,  Dushane  v. 

Beals,  In  re,  §  18,  p.  34;  §  18,  p.  35;  § 
19,  p.  36;  §  542,  p.  332;  §  1028,  p.  577; 
§  1100,  p.  626;  §  1447,  p.  855;  §  1468, 
p.  873;  §  1663,  p.  1030;  §  1807,  p.  1105. 

Bean,  Amsinck  v. 

Bean,  Bartholomew  v. 

Bean.  In  re,  §  288,  p.  207;  §  1047,  p.  597; 
§  1050,  p.  603;  §  1066,  p.  608;  §  1070, 
p.   609;    §    1093,   p.   618. 

Bean-Chamberlain  Mfg.  Co.  v.  Stand- 
ard Spoke  &  Nipple  Co.,  §  112,  p.  107; 
§  410,  p.  266. 

Bear  v.  Chase,  §  19,  p.  36;  §  444,  p 
283;  §  444,  p.  287;  §  899,  p.  516;  §  1429 
p.  847;  §  1433,  p.  848;  §  1463,  p.  869 
§  1448,  p.  858;  §  1464,  p.  871;  §  1468 
p.  873;  §  1472,  p.  876;  §  1473,  p.  877 
§  1479,  p.  882;  §  1641,  p.  1011;  §  1649 
p.  1015;  §  1860,  p.  1158;  §  1901,  p 
1188;  §  1902,  p.  1189;  §  2692,  p.  1598 
§   2864,   p.   1679. 

Beaseley  v.  Coggins,  §  214,  p.  173;  § 
248,  p.  189;  §  1138,  p.  663;  §  1207,  p. 
700;  §  1208.  p.  704;  §  1212,  p.  712;  § 
1216,  p.  720;  §  1217.  p.  722;  §  1225,  p. 
726;  §  1725.  p.  1063;  §  1732,  p.  1066; 
§   1751,   p.   1072. 

Beatty,  In  re,  §  22,  p.  38;  §  151,  p.  132; 
§  158,  p.  135. 

Beatty,     Mutual     Reserve     Fund     Life 

Ass'n  V. 
Beauchamp,  In  re,  §  1047,  p.  596. 


^960 


TABi:,E  OF  CASES. 


Beaver  Coal  Co.,  In  re,  §  1448,  p.  857; 

§   1448,  p.  857;  §   1449,  p.  858;   §  1485, 

p.   884;   §   1588,  p.  962. 
Becher   Bros.,   In  re,   §   1019,   p.   569;   § 

1170,  p.  687;  §  1177,  p.  689;  §  2347,  p. 

1424. 
Beck  &  Gregg  Hdw.  Co.,  Day  v. 
Beck,  In  re,  §  866,  p.  497;  §  867,  p.  497; 
•  §  2089,  p.  1293;  §  2090,  p.  1294;  §  2090, 

p.  1295;  §  2091,  p.   1295. 
Beck   Provision    Co.,    In   re,    §    1154,   p. 

680;  §   1155,  p.   681;   §   1155,  p.   682;   § 

1161,  p.  684. 
Becker,   In   re,   §   384,   p.   252;   §   385,   p. 

254;  §  967,  p.  541;  §  968,  p.  542;  §  969, 

;p.   542;  §   1006,  p.   559;  §  1115,  p.   637; 

§    1941,    p.    1211;    §    2347,    p.    1425;    § 

2517,  p.   1517;  §  2521,  p.   1519;   §  2538, 

p.    1527;    §    2541,    p.    1529;    §    2541,    p. 

1530. 
Beckwith  &  Co.,  In  re,  §  63,  p.  69. 
Beddingfield,  In  re,  §  198,  p.  164;  §  202, 

p.   165;  §  203,  p.   167;  §  213,  p.   172;   § 

235,    p.    183;    §    236,    p.    184;    §    268,    p. 

198;  §  2160,  p.  1333. 
Beebe,  In  re,  §  2535,  p.  1526;  §  2596,  p. 

1554. 
•Beede,  In  re,  §  1104,  p.  628;  §  1140,  p. 

667;  §  1147,  p.  677;  §  1199,  p.  697;  § 

1207,  p.  700;  §  1209,  p.  707;  §  1209,  p. 

708;  §  1211,  p.  709;  §  1212,  p.  710;  § 

1213,  p.  714;  §  1214,  p.  717;  1230,  p. 

732;  §  1235,  p.  734;  §  1239,  p.  735;  § 

1239,  p.  736;  §  1259,  p.  743;  §  1265,  p. 

745;  §  1760,  p.  1074. 

eerman.  In  re,  §  19,  p.  36;  §  493,  p. 

313;  §  1300,  p.  763;  §  1332,  p.  781;  § 

1395,  p.  823;  §  1399,  p.  827;  §  1403,  p. 

•830;  §  1407,  p.  834;  §  1412,  p.  838;  § 

1504,  p.  900;  §  2691^  p.  1598;  §  2702, 

p.  1602. 


B 


Beers  v.  Hanlin,  §  214,  p.  173;  §  232,  p. 

181;  §  635,  p.  377;  §  680,  p.  413;  §  705, 

p.  424;  §  710,  p.  427. 
Behan,  United  States  v. 
Beinberg,  In  re,  §  2461,  p.  1488. 
Beisenthal,  In  re,  §  149,  p.  129. 
Belden,  In  re,  §  1952,  p.  1216;  §  1953,  p. 

1217;  §   1954,  p.  1218;  §  2460,  p.   1488. 
Belding,  In  re,  §  1298,  p.  763;  §  1314,  p. 

772;  §  1329,  p.  779;  §  1332,  p.  781. 
Bclford,  Smith  v. 


Belknap,  In  re,  §  108,  p.  106;  §  109,  p, 
106;  §  109,  p.  107;  §  113,  p.  108;  §  118, 
110;  §  138,  p.  122;  §  139,  p.  122;  § 


106;  §  109,  p.  107;  §  113,  p.  108;  §  118, 
p.  110;  §  138,  p.  122;  §  139,  p.  122;  § 
1160,  p.  683;  §  1387,  p.  818;  §  1387,  p. 
819;  §  1397,  p.  825;  §  1437,  p.  850;  § 
2204,  p.  1356. 
Bell  V.  Dawson  Grocery  Co.,  §  755,  p. 
447;  §  1022,  p.  570;  §  1024,  p.  572;  § 
1032,  p.  580;  §  1034,  p.  585;  §  1103,  p. 
628;  §  1104,  p.  629;  §  1106,  p.  632;  § 
2446,  p.  1478. 

Bell,  Gage  v. 

Bell  V.  Leggett,  §  2814,  p.  1647. 

Bell,  Sellers  v. 


Bellah,  In  re,  §  26,  p.  41;  §  46,  p.  59;  § 
243,  p.  187;  §  254,  p.  191;  §  255,  p.  191; 
§  257,  p.  192;  §  258,  p.  194;  §  261,  p. 
196;  §  268,  p.  199;  §  269,  p.  199;  § 
278,  p.  203;  §  279,  p.  204;  §  280,  p. 
204;   §  283,  p.  205. 

Bellis,  In  re,  §  2608,  p.  1559. 

Bell  Piano  Co.,  In  re,  §  731,  p.  439;  § 
2214,  p.  1360. 


2214,  p.  1360. 
Bemis,  In  re,  §  2511,  p.  1512;  §  2521,  p. 
§  2613.  o.  1563. 


emis,  in  re,  $  :ioii,  p. 
1519;  §  2613,  p.  1563. 


nis  V.  Wilder,  §  988,  p.  551. 
Benbow,  Southern  Loan  &  Trust  Co.  v. 

ider.  In  re,  §  356,  p.  239;   §   1032,  p. 

IS;   §  1037,  p.  591;  § 
_396,  p.  1046;  §  1820,  i 
Benedict,  In  re,  §  18,  p.  34;  §  98,  p.  95; 

S  OTT  ^   ocn.  SI  o'oe   ,   " 


578 


:,  §  i»,  p.  34;  §  98,  p.  95; 

§  377,  p.  250;  §  385,  p.  253;  §  395,  p. 

258;  §  1215,  p.  718;  §  1429,  p.  847;  § 

1433,  p.  848;  §  1464,  p.  871;  §  1471,  p. 

874;  §  1705,  p.  1051;  §  1709,  p.  1055;  § 

2785,  p.  1630;  §  2789,  p.  1632. 
Benedict  v.    Deshell,  §  1277,  p.  755;  § 

1395,  p.  822;  §  1399,  p.  826;  §  1405,  p. 

832. 
Benjamin  v.    Chandler,  §  1301,  p.  764; 

§  1303,  p.  765;  §  1353,  p.  790. 
Rpniamin,  In  re,  §  527,  p.  329;  §  1128,  p. 
1134,  p.  647;  §  2037,  p.  1263. 


Benjami 


ciijcimiii,  in  re,  §  ozt, 

643;  §  1134,  p.  647;  §  -^usi,  p.  iz<o6. 

..,:o™;„    Tv/r^...^^  In  re,  §  2037,  p.  1263. 

7; 


Benjamin,  Meyer, 

Bennett,  Denny  v. 

Bennett,  In  re,  §  993,  p.  553. 

Bennett  Shoe  Co.,  In  re,  §  151,  p.  132; 

§   160,  p.   138. 
Benson,  Bradley,  Clark  &  Co.  v. 
Berck  &  Co.,  In  re,  §  1199,  p.  697. 
Bergeron,  In  re,  §  320,  p.  223. 


TABIvE  OF  CASES. 


1961 


Bergman,  In  re,  §  1316,  p.  773;  §  2271, 
p.  1390. 


p.  1390. 
Berkebile,  In  re,  §  2991,  p.  1735. 
Berkowitz,  In  re,  §  527,  p.  330;  §  528, 

p.  330;  §  1900,  p.  1187;  §  2544,  p.  1533; 

§  2549,  p.  1535. 
Berman,  In  re,  §  1054,  p.  604;  §  1057, 

p.  605;  §  1065,  p.  608;  §  1066,  p.  608;  § 

1069,  p.  609. 
Berman,   Stich  v. 
Berner,  In  re,  §  33,  p.  53;  §  34,  p.  54;  § 

449,   p.    296;    §    450,   p.    296;    §   1038,   p. 

592;  §  2491,  p.  1504;  §  2492,  p.  1505;  § 

2502,  p.  1507;   §   2507,  p.   1509;   §  2508, 

p.    1509;    §    2508,    p.    1510;    §    2510,    p. 

1510;  §  2511,  p.  1511;  §  2511,  p.  1512; 

§  2511,  p.  1513;  §  2522,  p.  1522;  §  2522, 

p.  1523;  §  2639,  p.  1572. 
Bernheimer,  Bryan  v. 
Bernstein,  Schmielovitz  v. 
Berry,    In   re,   §   970,   p.    544;   §    2484,   p. 

1502. 
Berry  Bros.  r.  Sheehan,  §  2794,  p.  1634. 
Berry  &  Co.,  In  re,  §  804,  p.  470;  §  1313, 

p.  770;  §  1882,  p.  1169;  §  1883,  p.  1170; 

§  1883,  p.  1171;  §  1883,  p.  1172;  §  1884, 

p.    1176. 
Berry  v.  Jackson,  §  1435,  p.  849;  §  2668, 

p.  1588  ;_§  2709,  p.  1604. 
Berry,  Westcott  v. 
Bertenshaw,  Baden  v. 
Bertenshaw,  Brittain  Dry  Goods  Co.  v. 
Beswick,  In  re,  §  1369,  p.  795;  §  1421,  p. 

842;  §  1427,  p.   846. 
Beutel's  Sons  Co.,  In  re,  §  1944,  p.  1213. 
Bevan,  Doe  v. 
Bevan,   Goodbehere  v. 
Biddle,   In   re,  §   1582,  p.  949. 
Biele  v.  Ogilivie,  §  2716,  p.   1606. 
Bigelow,  In  re,  §  2558,  p.  1383. 
Bigelow,  Martin  v. 
Big  Meadows  Gas  Co.,  In  re,  §  232,  p. 

181;  §  602,  p.  358;  §  704,  p.  423 
Billings,  In  re,  §  12,  p.  28; 


.  „       ,  p.  28;  §  19,  p.  36;  § 
29,  p.  45;  §  29,  p.  46;  §  216,  p    ' 
317,  p.  222;  §  426,  p.  274;  §  436 


Bills 


p.  174;  § 
,  p.  ^^d,  ■g  t^u,  p.  ^i'±,  •g  "±36,  p.  279 
V.  Schliep,  §  1883,  p. 

-Iirfcy.       S      10Q/I         ^        1  i  "T  K  .      0 


;ills  V.  Schliep,  §  1883,  p.  1169;  §  1883, 
p.  1172;  §  1884,  p.  1175;  §  2783,  p. 
1628;  §  2785,  p.  1629. 

Bimberg,  In  re,  §  2808,  p.  1645;  §  2811, 
p.  1645. 

Bindseil  v.    Smith,  §  1677,  p.  1034;  § 


1687,  p.  1039;  §  1728,  p.  1064;  §  1901, 

p.  1188;  §  1905,  p.  1190. 
Bingham,  In  re,  §  611,  p.  363;  §  629,  p. 

374;  §  649,  p.  390;  §  G72,  p.  407;  §  1172, 

p.   688;   §   1177,  p.   689. 
Bingham,    Sherman   v. 
Birkett,  Columbia  Bank  v^ 
Birkett  v.  Col 


umbia  Bank,  §  564,  p.  342; 
§  2761,  p.  1622;  §  2767,  p.  1625;  §  2769, 
p.  1625;   §  2777    p.   1«'''7.  S  o-ron    ,^     ico-r 


Birkett,  T: 

Bis 

Bk. 


',  p.  1627;  §  2780,  p.  1627, 
'indie  v. 
Bishop,  Warren  v. 
Bk.  of  Lahoma,  West  v. 
Bk.  of  Lexington,  Tomlinson  v. 
Bk.,    Loeser  v. 

Bk.  of  Seymour,  Pepperdine  v. 
Black,   In   re,  §   1022,  p.   570;   §   1024,  p. 

572;   §   1032,   p.   579;   §   1034,   p.    586;   § 

1072,  p.  610;  §  1075,  p.  612;  §  2469,  p. 

1492. 
Black  V.   McClelland,  §   636,  p.   377. 
Black,    Parker   v. 
Black-Secor,  In  re,  p.  112,  p.  107. 
Blackmore,   Turrentine  v. 
Blackwood,  Turrentine  v. 
Blair,   In   re,  §  36,  p.   55;   §   60,  p.   67;  § 

241,   p.    186;    §   269,   p.    199;    §    1448,   p. 

857;   §   1455,   p.   863;   §   1464,   p.   871;   § 

1477,  p.  879;  §  1478,  p.  880;  §  1764,  p. 

1075;   §   2232  ^   -- 

§  291 
Blak 


,    ^    j.-t(o,   p.    oou;    s    i.iO'i,   p. 

3,  p.   1366;  §  2251,  p.  1374; 

r06. 

re,  §  1144,  p.  673;  §  1696, 


■±*,   p.  yaa;    s  J-Oyo,  p. 
1696,  p.  1047;  §  1699,  p.  1050; 


p.  1706 
e.   In 

1046;  § 

§  1883,  p.  1172 
Blake  v.  Nesbit,  §  1727,  p.  1064;  §  1921, 

p.  1196. 
Blake,  Samson  v. 
Blake  v.  Valentine,  §  17,  p.  32;  §  22,  p. 

38;   §   28,  p.   45;   §  73,   p.   77;   §   102,   p. 

102;  §  164,  p.  139;  §  360,  p.  242;  §  368, 

p.  244;   §   383,  p.  252;  §   897,  p.  513;   § 

1121,  p.  641;  §  1473,  p.  877;  §  1901,  p. 

1188;   1902,  p.   1190. 
Blakey  v.  Booneville  Bk.,  §  394,  p.  257; 

§   1494,  p.   891. 


§   1494,  p.   891. 
Blakely,  Boonville  Nat'l   Bank  z 
Blalock,  In  re,  §  1018,  - 

1492*   **   oinc    ^     -t  Kr\t 


,  s  i^-Lo,  P-  568;  §  2469,  p. 
497,  p.  1506;  §  2522,  p.   1520; 


i\)'z;  s  •z^\)i,  p.  i5Ub;  §  ^5^^,  p. 
§  2522,  p.  1522;  §  2530,  p.  1525;  §2533, 
p.  1526;  §  2536,  p.  1527;  §  2542,  p 
1531;  §  2595,  p.  1552;  §  2596,  p.  1554: 
§   2603,  p.  1555. 


1962 


TABLE  OF  CASES. 


Blankfein,  In  re,  §  584,  p.  351. 
Blasdel  v.   Fowle,  §  2814,  p.   1647. 
Blease   v.    Garlington,    §    552,   p.    336;    § 

2841,  p.  1661. 
Bliss,  In  re,  §  887,  p.  506. 
Bloch,  In  re,  §  106,  p.  105;  §  131,  p.  115; 

§   132,  p.   115;   §   132,  p.   117;   §   173,  p. 

147;  §  179,  p.  150;  §  1358,  p.  792;  §  135, 

p.  118;  §  1385,  p.  815;  §  1396,  p.  825;  § 

1397,  p.  825;  §  1405,  p.  833;  §  1494,  p. 

892;   §   1497,  p.   895;   §   1952,  p.   1216. 
Block  V.  Farjicon,  §  132,  p.  115. 
Blodgett,  In  re,  §  943,  p.  525. 
Bloomingdale   v.    Empire    Rubber    Mfg. 

Co.,  §   1169,  p.   687;   §   1879,  p.   1166. 
Bloss,   In  re,  §   233,  p.  182. 
Blount,  In  re,  §  17,  p.  32;  §  197,  p.  163; 

§   200,   p.   164;   §   203,  p.   166;   §   205,   p. 

169;   §   220,  p.   175;  §   1012,  p.   562. 
Blue,    Mtn.,    etc.,   v.    Portner;    §    150,   p. 

132;  §  153,  p.  133;  §  158,  p.  135;  §  158, 

p.  136;   §  174,  p.   147;   §  406,  p.   264;   § 

406,   p.    265. 
Blue  Ridge  Packing  Co.,  In  re,  §  596,  p. 
§  603,  p.  359;  §  G04,  p.  360;  §  882, 


356;  §  603,  p.  o.j^,  ^ 
p.  504;  §  889,  p.  508. 

Blumberg,  In  re,  §  257,  p.  192;  §  261,  p. 
L451,  p.  860;  §  1455,  p.  863;  § 
1586;  §  2665,  p.  1587;  §  2668, 
:  S  2741.  p.  1615;  S  2754.  p. 


p.  1589;  §  2741.  p.  1615;  §  2754,  p. 
1619;  §  2783,  p.  1628;  §  2788,  p.  1632; 


1619;  §  2783,  p 
§  2789,  p.  1632. 
Blumberg  v.    Bryan;  §  1140,  p 
1664,  p.  1031 


671; 


1377. 


Blumer,  In  re,  §  2257,  p.  ..... 

Boardman,  In  re,  §  1006,  p.  559;  §  1006, 


p.  560;  §  1017,  p.  567. 

In  re,  §  2544,  p.  1532;  §  2545, 
S    2635.   D.    1570. 


Boasberg,  j.xi  ic,  vj  co'±^,  p. 
1533;    §    2635,   p.    1570 


p.    iodd;    8    soao,    p.    iai\j. 
Boatman's   Inst.,  Tiffany  v. 
Boese  v.  King,  §  149,  p.  129;  §  1603,  p, 

974;  §  1632,  p.  1005;  §  1634,  p'.  1009. 

oeshore,  In  re,  §  1575,  p.  944;  §  1576. 

o.    944. 


Boeshore 

p.   944. 

Bogen,  In  re,  §  186,  p.  153;  §  187,  p.  154. 
Bogen,   &   Trummell   v.    Protter,   §   136, 

p.   119;   §   141,  p.   123;   §   179,  p.   150;   § 

180,   p.    150;    §    180,   p.    151;    §   1353,   p. 

790. 
Bohle,  Davis  v. 


Blakey,  §  377,  p. 
§    391,    p.    256;    § 


Bolinger,  In  re,  §  1032,  p.  578;  §  1035,  p. 

589;   §    1063,  p.   607;   §    1089,   p.   616;   § 

nOO,  p.  626;  §   1100,  p.  627;  §  1447,  p. 

855. 
Boiling,   In  re,  §   804,   p.   470;   §   1313,  p. 

770;   §    1882,   p.    1169;    §    1883,   p.    1172. 
Bond  V.   Milliken;   §  704,  p.  424;  §  2739, 

p.   1614;  §  3001,  p.   1738. 
Bonesteel.  In  re,  §  1655,  p.  1029;  §  2864, 

p.    1682. 
Book  Co.,  Schener  v. 
Book   Co.,    Scheyer  v. 
Booneville  Nat'l  Bk.  v. 

248;    §    385,    p.    253; 

393,   p.    257;    §    394,   p.    257;    §    1120,   p. 

640;  §  1494,  p.  891;  §  1691,  p.  1042;  § 

1696,  p.  1045;  §  1698,  p.  1049;  §  1709, 

p.  1056;  §  1717,  p.  1058;  §  1753,  p. 

1072;  §  2982,  p.  1733;  §  2992,  p.  1736; 

§  3003,  p.  1739;  §  3005,  p.  1740;  §  3017, 

p.  1746. 
Booneville  Bank,  Blakey  v. 
Boorstein,  In  re,  §  1047,  p.  -599;  §  1098, 

p.  623. 
Boothe,  In  re,  §  1207,  p.  700;  §  1230,  p. 

732;  §  1444,  p.  854;  §  1582,  p.  955;  § 

1662,  p.   1030;  §   1827,  p.   1122;   §   1901, 

p.    1188;    §    1902,    p.    1190;    §    1918,    p. 

1195. 
Boothe  V.   Clark,  §   1709,  p.   1056. 
Bordner,   Rise  v. 
Borelli    &    Callahan,    In    re,    §    2276,    p. 

p.   1392. 
Bosler  v.  Kuhn,  §  653,  p.  398;  §  656,  p. 

399. 
Boston,    In   re,      1046,   p.    594,   §   1306,   p. 

766;    §    2283,    p.    1396. 
Boston   Dry   Goods   Co.,   In   re,   §   2840, 

p.    1660;    §    2849,    p.    1663;    §    2854,    p. 

1665,  §  2857,  p.   1668;   §  2948,  p.   1722; 

§  2950,  p.  1723;  §  2951,  p.  1723;  §  2955, 

p.    1724;    §    3001,    p.    1738;    §    3002,    p. 

1738;  §  3007,  p.  1740;  §  3010,  p.  1742. 
Bothe,  Pratt  v. 

Bothwcll.   In   re.  §   1427,  p.   846. 
Botts  V.  Hammond,  §  22,  p.  38;  §  1478, 

p.  880. 
Bougher,    Snyder   v. 
Bourlier  Cornice  &  Roofing  Co.,  In  re, 

§  388,  p.   255;  §   1966,  p.   1225;   §   1996, 

p.   1235. 
Bower  v.   Holzworth,  §  2894,  p.   1699. 


TABLE  OF  CASES. 


1963 


'.   Guaranty  Co.,  §  231, 
36?- 


Boyce 

611,  p.   363; 
Boyd  V.   Glucklich,  §  23, 

39:  S  908.  n.  519:  S 


p.  li 


5oyd  V.  Glucklich,  §  23,  p.  38;  §  23,  p. 
39;  §  908,  p.  519;  §  1526,  p.  913;  § 
1819,  p.,  1115;  §  1832,  p.  1126;  §  1837, 
p.  1130;  §  1838,  p.  1132;  §  1839,  p. 


P- 
1135; 
16, 
P- 

P- 
§ 
P- 


p.  1130;  §  1838,  p.  1132;  §  1839, 

1132;  §  1839,  p.  1133;  §  1840,  p.  11   , 

§  1842,  p.  1139;  §  1845,  p.  1142;  §  1856, 

p.  1155;  §  1858,  p.  1156;  §  2320,  - 

1415. 
Boyd,  In  re,  §  1024,  p.  573;  §  1032, 

581;  §  1033,  p.  585;  §  1035,  p.  587 

1035,  p.   589;   §   1037,  p.  591;  §   1266, 

746. 
Boyd  V.    Lemon   &   Gale   Co.,   §    124,   p. 

112;   §   132,  p.   115;  §   1331,  p.   780. 
Boyd  V.  U.  S.,  §  1558,  p.  934. 
Boyden,  In  re,'  §  2522,  p.   1521. 
Boynton  v.   Ball,   §  2699,  p.   1600. 
Boyd,  Norton  v. 
Boyden,    O'Dell    v. 
Bozeman,  In  re,  §  1212,  p.  712;  §  1243, 

p.  738. 
Bracken  v.  Milner,  §  2783,  p.  1628. 
Bradford  Realty  Co.,  Lesser  v. 
Bradley,  Alderson  &  Co.  v.   McAfee,  § 

1207,  p.  699;  §  1210,  p.  708;  §  1228,  p. 

727;  §  1241,  p.  736;  §  1242,  p.  737. 
Bradley,  Clark  &  Co.  v.  Benson,  §  1334, 

p.  782;  §  1379,  p.  804. 
Bradley,  In  re,  §  2258,  p.  1383. 
Bradley  Timber  Co.  v.  White,  §  135,  p. 

118;    §    136,    p.    120;    §    137,    p.    120;    § 

246,    p.    189;    §    249,    p.    189;    §    259,    p. 

194;    §    259,    p.    195;    §    324,    p.    225;    § 

410,   p.    266. 
Bradley  Timber  Co.,  White  v. 
Braeutigam,  In  re,  §  970,  p.  543. 
Braeutigam,    Kinmouth   v. 
Bragassa,  In  re,  §  2521,  p.  1520;  §  2549, 

p.  1535. 
Bragassa  v.  St.  Louis  Cycle  Co.,  §  2521, 

p.  1519;  §  2604,  p.  1557;  §  2612,  p.  1562; 

§   2660,  p.   1578. 
Bragg,  In  re,  §   1032,  p.   581;  §  1034,   p. 

586;   §   1035,  p.   587. 
Brake  v.  Callison,  §  46,  p.  59;  §  248,  p. 

189;    §    1751,    p.    1072. 
Bray  v.   Cobb,   §    147,   p.   129;    §    179,   p. 

150;  §  411,  p.  266;  §  451,  p.  297;  §  504, 

p.  321;  §  629,  p.  374;  §  653,  p.  394;  § 

656,  p.  399;  §  670,  p.  406;  §  676,  p. 


412;  §  678,  p.  413;  §  679,  p.  413;  §  723, 

p.  436;  §  982,  p.  548;  §  983,  p.  549;  § 

985,  p.  549;  §  2034,  p.  1261. 
Breck,  In  re,  §  653,  p.  394;  §  653,  p.  398; 

§  656,  p.  399. 
Breckons  v.   Snyder,  §  444,  p.  288;  §  877, 

p.  501;  §  1555,  p.  930;  §  1687,  p.  1038; 

§  1721,  p.  1061;  §  1731,  p.  1065;  §  1736, 

p.  1068;  §  1736,  p.  1069;  §  1747,  p. 

1071;  .§  1776,  p.  1078. 
Breiner,  In  re,  §  2503,  p.  1507;  §  2520,  p. 

1518;  §  2541,  p.  1529;  §  2543,  p.  1532. 
Breitling,  In  re,  §  2467,  p.  1490;  §  2492, 

p.  1505;  §  2493,  p.  1505;  §  2502,  p. 

1507. 
Brenner,  Goodman  v. 
Breslauer,  In  re,  §  392,  p.  256;  §  1212,  p. 

710;  §  1215,  p.  718;  §  1429,  p.  847;  § 

1468,  p.  873;  §  1473,  p.  877;  §  1480,  p. 

882;  §  1481,  p.  883;  §  1484,  p.  883;  § 

1863,  p.   1159;   §   1901,  p.   1188;  §   1902, 

p.  1189;  §  1916,  p.  1194. 
Bretstein,  Abrahamson  v. 
Brett,   In  re,  §  30,  p.  48;   §  46,  p.   59;   § 

207,    p.    171;    §    240,    p.    186;    §    243,    p. 

187;  §  245,  p.  188;  §  261,  p.  196;  §  269, 

p.  199;  §  324,  p.  225;  §  325,  p.  225. 
Brew  Co.,  In  re,  §  451,  p.  297;  §  645,  p. 

387;  §  653,  p.  396;  §  653,  p.  397;  §  674, 

p.  412;  §   689,  p.  417;   §   690,  p.   418;   § 

707,  p.  426;  §  2729,  p.  1610. 
Brewing  Co.,  Printing  Co.  v. 
Brewster,  In  re,  §  557,  p.  3; 


P- 
;  §  1203, 


aewiiig  \^o.,   jrriiuing  v^o.  v. 
Irewster,  In  re,  §  557,  p.  338;  §  799, 

467;  §  800,  p.  467;  §  855,  p.  491;  §  12^ 

p.    698. 

Srice,   In  re,  §  33,  p.  54;   §   51,  p.  63;   § 
52,   p.    63;   §    2545,   p.    1533;    §    2549,   p. 


E 
E 

Bri 
ri 


;549,   p. 
296,  p.  213. 


1533; 
1536. 
Bridge  &  Iron  Co.,  In  re 
"^   iggs.  In  re,  §  2481,  p.  1498. 

iggs   V.   Stevens,   §   1959,   p.    1220. 
inberg.   In   re,   §   725,   p.   437. 
'nckmann,  In  re,  §  214    -^    i-ro-  s 


Brinckmann,  In  re,  §  214,  p.  173;  §  232, 
p.   181;   §   635,   p.   377;   §   636,  p.   377. 

Brinker,  In  re,  §  2147,  p.  1324;  §  2147, 
p.  1325;  §  2148,  p.  1326;  §  2149,  p. 
1328;    §    2282,    p.    1396. 


i32S;    §    2282, 
Brinkley  v.  Smi 

331,  p.  226. 
Brinn, 


48, 

p.    . 

ithwick,  §  165,  p.  140;  § 


Clemmons    v. 
Briscoe,  Upshur  v. 


1964 


TABLE  OF  CASES. 


Briskman,  In  re,  §  303,  p.  217;  §  179&,  p. 

1089;  §  1798,  p.  1098,  §  1800,  p.   1099; 

§    1807,    p.    1102;    §    1807,    p.    1105;    § 

1916,  p.  1194. 
Brittain  Dry  Goods  Co.  v.  Bertenshaw, 

§  1349,  p.  789;  §  1385,  p.  816;  §  1389,  p. 

820;  §  1390,  p.  820.  ' 
Brittain  Dry  Goods  Co.,  Huenergardt  v. 
Broadway  Sav.  Trust  Co.,   In  re,  §  20, 

p.  37;  §  30,  p.  49;  §  268,  p.  198. 
Broadway    Trust    Co.    v.    Manheim,    § 

2352,  p.  1427;  §  2353,  p.   1428;   §  2683, 

p.    1595;    §    2685,    p.    1595;    §    2761,    p. 

1622;  §  2777,  p.  1627. 
Brodbine,  In  re,  §  967,  p.  542;  §  1115,  p. 

637. 
Bromley,  In  re,  §  2608,  p.  1559;  §  2614, 

p.   1563;   §   2621,  p.   1565. 
Brooks,   In  re,  §  869,  p.  498;  §   1656,  p. 

1029;  §  1675,  p.  1033;  §  1796,  p.  1091; 

§  1797,  p.  1095;  §  1798,  p..  1098;  §  1800, 

p.    1099;    §    1807,    p.    1107;    §    1820,    p. 

1118. 
Broom,  In  re,  §  2147,  p.  1324;  §  2148,  p. 

1326;  §   2150,  p.   1328;  §  2154,  p.   1330. 
Bi-owder  &  Co.  v.  Hill,  §  2279,  p.  1393; 

§   2278,  p.   1393. 
Brown,  Davis  v. 
Brown,  In  re,  §  48,  p.  61;  §  202,  p.  165; 

§   207,  p.  170;  §  216,  p.  175;  §  723,  p. 

436;  §  760,  p.  452;  §  760,  p.  453;  §  885, 

p.  504;   §  1034,  p.   585;  §   1089,  p.   616; 

§  1090,  p.  617;  §  1216,  p.  721;  §  1218, 

p.  722;  §  1376,  p.  803;  §  1429,  p.  847; 

§  1439,  p.  850;  §  1453,  p.  862;  §  1464, 

p.  871;  §  1500,  p.  897;  §  1501,  p.  898; 
■   §,1602,  p.  967;  §  1605,  p.  975;  §  1913, 

p.'  1192;  §  2135,  p.  1318;  §  Sl83,  p. 

1342;  §  2394,  p.  1447;  §  2522,  p.  1521; 

§  2583,  p.  1549;  §  2584,  p.  1549;  §2592, 

p.  1552;  §  2785,  p.  1630. 
Brown  &  Adams  v.   Button  Co.,  §  46, 

p.  60;  §  625,  p.  372;  §  636,  p.  377;  § 

705,  p.  424;  §  2731,  p.  1612;  §  2748,  p. 

1617. 
Brown  v.   Barker,   §   17,   p.   32;   §   22,   p. 

38;  §  963,  p.  538;  §  972,  p.  545;  §  975, 

p.  546;  §  1265,  p.  745;  §  1732,  p.  1066. 
Brown  v.  Case,  §  1464,  p.  871;  §  1481,  p. 

883. 
Brown,    Chapman,    Trustee    v. 


Brown  v.   Chapman,   §   354,   p.   237 
Brown   v.    Guichard,    §    139 
1396,  p.  825;  §  1407,  i 


p.    822;    § 
p.  834;  §  1409,  p. 


^396,  p.  825;  §  1407, 
835. 
Brown   v.   Jefferson    County    Xat'l    Bk., 
§  1337,  p.  783;  §  1338,  p.   784. 


rown,    McDonald  v. 
Brown,   Owen  v. 


B 


p.    1-tOl;    § 


tsrown,   uwen  v. 
Brown,  People's  Bank  v. 
Brown   v.    Persons,    §    22t 

2839,  p.  1659. 
Brown,    Schweer   v. 
Brown  v.  Smart,  §  1627,  p.  993. 
Brown  v.  Walker,  §  1558,  p.  933;  §  1559, 

p.  936. 
Brown,  Western  Tie  &  Timber  Co.  v. 
Brownell,   Grensfield  Bros.  v. 
Bruce,   Bank  v.    Bruce,    City    Xat'l    Bk. 

of    Greenville,   v. 
Bruce,  Owens  v. 
Bruss,  Mueller  v. 
Brumbaugh,  In  re,  §  1032,  p.  578;  §  1032, 

p.  584;  §  1035,  p.  590;  §  1102,  p.  628;  § 

1104,  p.  631;  §  1106,  p.  632;  §  2446,  p. 

1478;   §  2470,  p.  1493;  §  2471,  p.  1494; 

§    2512,    p.    1514;    §    2522,    p.    1520;    § 

2522,   p.   1521;  §  2554,  p.  1539;  §  2639, 

p.   1572;   §   2760,   p.   1622. 
Brumley  v.  Jones,  §  1685,  p.   1037. 
Brundage,   In  re,   §  1547,  p.  926. 
Brundin,  In  re,  §  2045,  p.   1267;   §  2087, 

p.   1291;   §   2090,   p.   1294. 
Bruss-Ritter   Co.,   In  re,  §   1625,  p.  989; 

§   1626,  p.  990;   §   1628,  p.  996;  §  1629, 

p.    997. 
Bryan,    Blumberg   v. 
Bryan  v.    Bernheimer,   §   355,   p.   238;    § 

384,  p.  252;  §  1665,  p.  1031;  §  1696,  p. 

1045;  §   1699,  p.   1050;  §  1800,  p.  1099; 

§  1827,  p.  1122;  §  1855,  p.  1153;  §  2881, 

p.    1690;    §    2891,    p.    1698;    §    2948,    p. 

1722. 
Bryan,    City    of    Waco    v. 
Bryan,  Cooper-Grocery  Co.  v. 
Bryan  v.  Madden,  §  1216,  p.  720;  §  1216 

p.  721;  §  1415,  p.  839;  §  1725,  p.  1063 

"   1739,  p.  1069;   §  1959;  -    -'"'^'^ 


p.     1220. 


§  1739,  p.  1069;  §  1959;  p.  1 
Bryant,  In  re,  §  2491,  p.  1504;  §  2522,  p 
1521;  §  2535,  p.  1526;  §  2536,  p.  1527; 
§  2541,  p.  1530;  §  2596,  p.  1553;  §  2638, 
p.  1572;  §  2639,  p.  1572. 


table;  of  cases. 


1965 


Bryant  v.  Kinyon,  §  30,  p.  51;  §  2683,  p. 

1595;  §  2783,  p.   1628;§  2786,  p.  1631; 

§    2446,   p.    1478. 
Buchanan  v.   Smith,  §   1399,  p.   826. 
Buck  V.   Calbath,   §    1797,   p.   1092. 
Buckingham  v.   Estes,  §   715,  p.  429;   § 

2861,  p.  1672;   §   3001,  p.  1738;   §  3002, 

p.    1739;    §    3009,    p.    1741;    §    3009,    p. 

1742. 
Buckingham   v.   First  National   Bank,   § 

63,   p.    69;    §    2238,   p.    1369;    §    2255,   p. 

1375;  §  2257,  p.  1377;  §  2258,  p.  1383. 
Buckingham,   In  re,   §   1088,  p.   616. 
Buckman,  Waring  v. 
Buder  v.  Columbia  Distilling  Co.,  §  523, 

p.   326;   §   792,  p.   464;   §   1771,  p.   1076. 
Buel,  Steele  v. 
Buelow,    In    re,    §    1012,   p.    563;    §    1047, 

p.  595. 
Buffalo  Mirror  &  Beveling  Co.,  In  re,  § 

809,  p.  471. 
Builders'  Lumber  Co.,  In   re,  §  1241,  p. 

736. 
Bullis,  In  re,  §   2747,  p.  1617;  §  2748,  p. 

1617;  §  2748,  p..  1618;  §  2783,  p.  1628; 

§    2784,   p.    1629. 
Bullis    V.    O'Beirne,    §    2747,    p.    1617;    § 

2748,  p.  1617;  §  2748,  p.  ,1618. 
Bulkeley,  Union  Trust  Co.  t>. 
Bullock,  In  re,  §  1311,  p.  768;  §  1416,  p. 

839. 
Buntrock   Clothing   Co.,   In   re,   §   1652, 

p.    1020;    §    1675,    p.    1033;    §    1796,    p. 

1089. 
Burgess,   Graffam  v. 
Burk,    In   re,   §    214,    p.    173;    §    2627,    p. 

1567. 
Burka,  In  re,  §  54,  p.  64;  §  96,  p.  93;  §  98, 

p.  95;  §  312,  p.  220;  §  672,  p.  407;  §  951, 

p.   534;   §  963,   p.   538;   §   1116,   p.   639; 

§  1117,  p.  639;  §   1135,  p.  648;   §  2420, 

p.    1465;    §    2474,    p.    1494;    §    2731,    p. 

1610;   §   2735,   p.    1613. 
Burke,  Crawford  v. 
Burke  v.  Guarantee  Title  &  Trust  Co., 

§   26,  p.  41;   §   1048,  p.  599;  §   1048,  p. 

600;  §   1048,  p.  602;   §   1052,  p.  604. 
Burke,   In  re,  §   1168,  p.   686;  §2014,  p. 

1251;  §  2020,  p.   1256;  §  2026,  p.  1258; 

§  2054,  p.  1276. 
Burkhart  v.  Germ.  Am.  Bk.,  §  77,  p.  78; 

§  78,  p.  79;   §  79,  p.  79. 


p. 


Burkle,  In  re,  §  1147,  p.  678;  §  1243 

738. 
Burleigh,   Foreman  v. 
Burleigh   v.    Foreman,   §    1685,   p.    1036; 

§  1885,  p.  1179;  §  2235,  p.  1367;  §  2236, 

p.    1367;    §    2861,    p.    1672;    §    2871,    p. 

1685;  §  2879,  p.  1689;  §  2912,  p.  1706;  § 

3009,  p.  1742. 
Burlington    Malting   Co.,    In    re,    §    203, 

p.   166;  §  234,  p.  183;  §  630,  p.  374. 
Burlin  Machine  Wks.,  Hewitt  v. 
Burnett    v.    Morris,    Mercantile    Co.,    § 

1653,    p.    1023. 
Burnham,   In  re,  §  1140,  p.  670;  §   1209, 

p.   707;   §   1240,  p.  736;  §   1258,  p.   741; 

§  1259,  p.  743. 
Burnham  v.    Pidcock,  §  635,  p.  377;  § 

680,  p.  413;  §  2731,  p.  1611;  §  2740,  p. 
5;  §  2747,  p.  1617;  §  2748,  p.  1618; 
:783,  p.  1628;  §  2785,  p.  1629;  § 


p.  41 
1615 

2783,    p 
2790,    p.   1633, 
Burnham,  Will 


kirnham,  Williams  &  Co.,  Jones  v. 
Jurns,   In   re,   §   2047,  p.   1269. 
Burns  v.  O'Gorman,  §  1729,  p.  1064. 

kirnstine.  In  re,  §  1019,  p.  568;  §  1115, 
p.  637;  §  2522,  p.  1521. 


579; 


Burt,  Elsbree  v. 

Burow  V.   Grand  Lodge,  §  1032,  p. 

§  1047,  p.  595;  §  1047,  p.  596;  §  1894, 

p.  1184;  §  1985,  p.  1230;  §  2901,  p. 

1702;  §  2902,  p.  1703. 
Burr,  In  re,  §  2376,  p.  1439. 
Burrell  &  Corr,  In  re,  §  150,  p.  131. 
Burrell  v.   State,  §  1556,  p.  931;  §  1561, 

p.  938. 
Burrus,  In  re,  §  1429,  p.  847;  §  1463,  p. 

871;  §  2045,  p.  1267;  §  2089,  p.  1293; 

§  2092,  p.  1295. 

urton  Bros.  Mfg.  Co.,  In  n 

1347!  8  2198  n  13.51  :  8  219 


§  988,  p.  551. 
Bush  V.   Elliott,  §  1694,  p.  1044. 
3ush  V.   Export  Storage  Co.,  §  1146,  p. 


1966 


TABLE  OF  CASES. 


Bush,  Shropshire,  WoodHfif  &  Co.  v. 
Bussey,    In    re,    §    1614,    p.    980;   §    1614, 

p.   981. 
Butler  V.  Baudouine,  §  975,  p.  546. 
Butler,    In    re,    §    1035,    p.    589;   §    1037, 

p.    591;    §    1410,    p.    837. 
Butt  V.    Construction   Co.,    §   81,   p.    80; 

§   84,   p. -83;   §  84,  p.   84;   §  90,  p.   86;  § 

94,    p.    90. 
Butterfield,    In   re,   §    2608,   p.    1559. 
Butterwick,    In    re,    §    1140,    p.    669;  § 

1140,    p.    671;    §    1207,    p.    702;    §    1212, 

712;   §    1228,   p.  727;    §   1245,   p.   739;    § 

1254,  p.  741;  §  1265,  p.  745. 
Button  Co.,  Brown  &  Adams  v. 
Butts,  In  re,  §  2783,  p.  1628;  §  2784, 

p.  1629;  §  2785,  p.  1630. 
Bybee,  In  re,  §  2440,  p.  1477. 
Byerly,  In  re,  §  889,  p.  508;  §  1621, 

p.  987;  §  1622,  p.  988;  §  2045,  p. 

1266;   §   2048,  p.   1272;  §  2050,  p.  1274; 

§     2054,    p.    1276;   §    2054,    p.     1277;   § 

2055,   p.   1279. 
Byrne,    In    re,    §    1160,    p.    683;  §    1896, 

p.    1185;  §    1898,    p.    1187;   §    2186,    p. 

1344;   §  2195,  p.   1347;   §  2202,  p.  1353; 

§    2204,    p.    1357. 
Byrnes,  Mulock  v. 
Cabus,  In  re,  §  2521,  p.  1519. 
Cady  V.  Whaling,  §   1218,  p.   722. 
Cagliostro   v.    Indelle,    §    2761,   p.    1622; 

§    2770,    p.    1626;   §    2775,    p.    1627. 
Cahoon,   McKittrick  v. 
Cain,  In  re,  §  205,  p.  167;  §  233,  p.  182; 

§    1346,    p.    788. 
Calbath,    Buck   v. 
Caldwell,    Coal    Fields    Co.   v. 
Caldwell,   Paine  v. 

Calif.  Pac.  Ry.  Co.,  In  re,  §  233,  p.  182. 
Callahan  v.  Israel,  §  899,  p.  515;  §   899, 

p.    516;    §    1641,    p.    1011;    §    1722,    p. 

1061. 
Callison,  Brake  v. 
Callison.    In    re,    §    46,    p.    59;  §    214,    p. 

173;   §   243,  p.   187. 
Cambridge,    In    re,    §    2010,    p.    1246;   § 

2103,     p.     1300;     §     2111,     p.     1302;     § 

2n6,    p.    1304;   §   2119,   p.    1306. 
Camb.    Sav.    Inst.   v.    Littlefield,   §    2716, 

p.    1606. 
Cameron    Town    Insurance    Co.,    In    re. 

§   94,    p.    89. 


Camp,  In  re,  §  1022,  p.  570;  §  1024, 
p.  572;  §  1024,  p.  573;  §  1032,  p.  578; 
§  1034,  p.  585;  §  1041,  p.  592;  §  1047, 
p.  595;  §  1047,  p.  596;  §  1072,  p. 
610;   §    1074,   p.    611;   §    1095,   p.    620. 

Camp,  Sabin  v. 

Camp,   Savin  v. 

Campbell,  In  re,  §  1032,  p.  581;  §  1035, 
p.  587;   §   1035,  p.  589;   §   1079,  p.   612; 


§   1082, 


;   §   lu.ia,  p.  oay;   §   lu/y,  p.   o 
^   ^.,^2,  p.  613;  §   1084,  p.   614;   §   1107, 
p.    633;   §    2183,    p.    1342. 
Campbell,   Traders'   Bk.  v. 
Campbell,   Wiswall  7'. 
Canal  National  Bank,  Emery  v. 
Canfield,    In    re,    §    299,    p.    216;  §    303, 

p.    217. 
Cann,   In   re,  §   2639,  p.   1572. 
Cannon  v.   Dexter   Broom    &    Alattress 
Co.,    §    1022,    p.    570;   §    1035,    p.  ,587; 
§    1035,   p.    589. 
Cannon,   In   re,   §   554,   p.   338;   §   830,   p. 
481;    §    831,    p.    481;    §    831,    p.    482;    § 
:,    p.    484;   §    852,    p.  " 

'■   «    ^--^     p.    734;   L 

069;  §    1896,    p.    1185;  § 


144,    p.    484;   §    852,    p.    490;   §    1035,   p. 

i89;   §    1234,    p.    734;   §    1265,    p.    746; 

1738,    p.    1069;   §     1896,    p.    1185;   § 

^221,    p.    1362. 

ir  &  Loco.  Wks.,  In  re,  §  1140, 
669;  §  1141,  p.  672;  §  1146,  p.  676 
irbone.  In  re,  §  43,  p.  58;  §  318, 


i,    p.    58;  §    318,    p. 
Co. 


223. 
Card,   Zepemik  z'. 
Carleton   Dry   Goods   Co.   v.   Rogers,   § 

1416,  p.   839;   §  1418,  p.   840. 

Carleton,  In  re,  §  43,  p.  58;  §  59,  p.  66; 

§   72,  p.  75;   §  72,  p.  77;   §  73,  p.  77;   § 

76,    p.    78;   §    318,    p.    223;   §    2552,    p. 

1538;   §  2558,  p.  1540;   §  2571,  p.  1544; 

§   2574,    p.    1547;   §    2576,    p.    1547. 

Carley,   In  re,  §  1547,  p.  924;  §   1551,  p. 

927;   §    2613,   p.    1563;   §    2622.   p.    1565. 

Carley,     Kentucky     National     Bank    of 

Louisville  v. 
Carley,    Patten    v. 

Carling    v.     Seymour    Lumber     Co.,     § 
445,    p.    855;   §    1472,    p.    876;    §    1582, 
^    965;   §   1610,  p.  978;  §   1615,  p.  989; 
1587,   p.   962;   §    1597,   p.  964;   §1598^ 
965,  §   1610,  p.   978;   §   1625,   p.   989; 
1626,   p.  991;   §   1628,  p.  994;   §   1629, 
,..  996;   §  1629,  p.  997;   §  1632,  p.  1007; 
§    1633,    p.     1007;   §     1633,    p.     1008;  § 
1636,     p.     1009;   §     1637,     p.      1010;    § 


1- 

P- 

§ 

P- 

§ 

P- 

§ 


TABLE  OF  CASES. 


1687,  p.  1038;  §  1901,  p.  1188;  § 

1907,  p.  1191. 
Carl!,  U.  S.  V. 
Carmichael,  In  re,  §  1047,  p.  597;  § 

1081,  p.  613;  §  2259,  p.  1385;  §  2272, 

p.  1391;  §  2468,  p.  1491;  §  2470,  p. 

1494;  §  2471,  p.  1494;  §  2544,  p.  1533; 


,  ^ ,  p.  1494;  §  2544,  p.  1533 

§  2662,  p.  1584;  §  2663,  p.  1585 
2665,  p.  1586;  §  2754,  p.  1619;  §  27 


'66, 


2278,     p. 


p.    1624;   §    2794,    p.    1635 
Carolina    Car    Cc 

1393. 
Carolina   Cooperage  Co.,  In  re,  §  2011, 

p.    1247;   §    2030,    p.    1260;  §    2045,    p. 

1267;  §  2047,  p.   1370;   §  2048,  p.  1271; 

§    2117,    p.     1305;   §    2169,    p.     1337; 

2171,   p.    1338;    §   2176,   p.   1340. 


2171,   p.    1338;    §   2176,   p.   1340. 

arpenter    Bros.    v.    O'Connor,    §    1586, 

p.  960;   §  1587,  p.  962;   §  1807,  p.  1105; 

§    2695,    p.    1598;   §    2696,    p.    1599. 
Carpenter,     In     re,    §     1047,    p.     599;  § 

1209,  p.  707;   §  1216,  p.  721;  §   1228,  p. 

727;  §    1263,   p.   744. 
Carpenter,  Jacobs  z'. 
Carpet  Lining  Co.,  Mauran  v. 
Carr,   Farmers'   Bank  z'. 
Carr,    Farmers'   Bank  of   Edgfield  z' 
Carr    z\     Hamilton,     §     674,     p.     41: 


Ca 


p.     412;, § 
1173,  p.   688;   §    1186, 


1173,   p.    688;    §    1186,    p.    694. 
arr.  In  re,  §  560,  p.  340;  §  909,  p.  519; 

§    2045,    p.-  1266;    §    208-'l,    p.    1288;    § 

2286,  p.  1397;  §  2295,  p.  1400. 
Carr  z'.   ]\Ieyers,  §   1018,  p.   568;  §   1019, 

p.    568;   §    1743,   p.    1070. 
Carr,   Wood  v. 
Carriage   Co.  v.   Solanas,   §   533,   p.   331; 

§  1160,  p.  683;  §  1797,  p.  1093;  §  1807, 

p.    1101;    §    1811,    p.    1109;    §    1811,    p. 

1110;  §  1813,  p.  1111;  §  1874,  p.   1164; 

§    1885,    p.    1178;    §    1885,    p.    1179;    § 

1975,  p.   1228;  §   1985,  p.   1230;   §   2204, 

p.    1356. 
Carroll,    Geo.,    &    Bros.    Co.   v.    Young, 

§    563.    p.    341;    §    1154,    p.    680;    §    1966, 

p.    1225;    §    1986,    p.    1230;    §    1987,    p. 

1232;   §   1988,  p.   1232. 
Carson,   Rowland  z'. 
Carson,  Pirie  &  Co.  z'.  Trust  Co.,  §  124, 

p.   112;   §   1277,  p.  755;   §   1331,  p.  780; 

§  1343,   p.  786;  §   1343,  p.  787;   §   1426, 

p.   846. 
Carter  z'.  Goodykoontz,  §  1303,  p.  765. 


1967 

p.   35;   §   19,  p. 
949;    § 


^^^,   p.   ..^^,   §   1922,   p.   1196. 
Carter,    In   re,   §    602,   p.   358;    §    611,   i.. 

361;  §  794,  p.  465;  §  798,  p.  466;  §  815, 

p.    474;    §    824,    p.    477;    §    844,    p.    487; 

§  1653,  p.  1024;  §  1718,  p.  1060;  §  1837, 

p.  1130;  §  2280,  p.  1395. 
Carton  &  Co.,  In  re,  §  459,  p.  303;  § 

801,  p.  468;  §  824,  p.  477;  §  826,  p. 

479;  §  2559,  p.  1541;  §  2655,  p.  1578. 
Carver   &   Co.,   In   re,   §   1594,   p.   964;   § 

1606,  p.  976;  §  1611,  p.  978;  §   1612,  p. 

979;  §  1665,  p.  1031;  §  2843,  p.  1661. 
Car  Wheel   Wks.,   In   re,   §   794,   p.  464; 

§   794,  p.  465;  §  802,  p.  469. 
Case,    Brown   z'. 

Case  z>.   Phelps,   §   2509,  p.   1510. 
Cassell,  Dolle  v. 
Cassell,  York  M'f'g    Co.  v. 
Casey  t-.  Cavaroc,  §  1144,  p.  673. 
Cashman,  In  re,  §  2521,  p.  1520. 
Cass,    In    re,    §    993,    p.    553;    §    1885,    p. 

1180. 
Castleberry,    In    re,    §    1024,    p. 

1032,    p.    580;    §    1035,    p.    589; 


p.   599 


..-..,,    ...    .-,    ,3    P-    572;    § 

:,    p.    580;    §    1035,    p.    589;    §    1047, 
99;   §   1089,  p.  616;  §   1091,  p.   617; 
§   1093,  p.  617;  §   1104,  p.   631;  §   2044, 
p.    1266;    §    2088,    p.    1293;    §    2111,    p. 
1302. 
Castle   Braid   Co.,   In   re,   §   760,   p.   451; 
§   801,  p.   468;   §   802,   p.   469;   §   844,  p. 
486;   §   846,  p.  489. 
Caswell,  In  re,  §  1047,  p.  597. 
therson,   Willetts   v. 


ava 
w 
m 


Ca 

C 

Ca 

Ce 

Cen 

Ch? 

Cha 

Ch 


atherson,   Willetts   z'. 
avagnaro.  In  re,  §  1209,  p.  707;  §  1242, 
p.    737;   §   1244.   p.   738;   §    1245,   p.   738; 
J   1379,   p.   804. 

vanna  7'.   Bassett,   §   2395,  p.   1448. 
"'aroc,   Casey  z'. 
thon-Coleman    Co.,    Lucius   v. 
lent  Co.,  In  re,  §  138,  p.  122. 
tury   Saving   Bk.,   Taft  z'. 
lloner.  In  re,  §  683,  p.  415. 
lonpka.  Kohout  z'. 


am 
3640 


inpka.  Kohout  z'. 

iberlain.   In   re,   §   2635,   p.   1571;    § 

^^,    p.    1572. 


1968 


TABLE  OE  CASES. 


Chambers,  Calder  &  Co.,  In  re,  §  20, 
p.  37;  §  643,  p.  383;  §  825,  p.  478;  § 
859,  p.  492;  §  1582,  p.  949;  §  1797,  p. 
1093?  §  1798,  p.  1098;  §  1799,  p.  1099; 
§  2034,  p.  1261;  '§  2035,  p.  1262;  § 
2840,  p.  1659;  §  2840,  p.  1660;  §  2847, 
p.  1662;  §  2849,  p.  1663;  §  2851,  p. 
1663;  §  2851,  p.  1664. 

Champion,  In  re,  §  1421,  p.  843. 

Chandler,   Benjamin  v. 

Chandler,  In  re,  §  453,  p.  302;  §  470,  p. 
306;  §  473,  p.  306;  §  2809,  p.  1645;  § 
2810,  p.   1645;  §  2822,  p.  1649. 

Chaplin,  In  re,  §  769,  p.  456;  §  774,  p. 
459;  §  803,  p.  469;  §  1216,  p.  720;  § 
1217,  p.   722;   §  2222,  p.   1363. 

Chapman,  Brown  v. 

Chapman,  Dight  z'. 

Chapman  v.  Forsj^th,  §  2663,  p.  1585;  § 
2785,  p.  1631. 

Chapman,   Heim  z'. 

Chapman,  In  re,  §  138,  p.  120;  §  142,  p. 
125;  §  143,  p.  125;  §  143,  p.  126;  § 
798,  p.  467;  §  1444,  p.  854;  §  1448,  p. 
857;  §  1455,  p.   863;   §  1586,  p.  960. 

Chapman,  Trustee,  v.  Bowen,  §  2956, 
p.   1724;   §  3008,  p.   1740. 

Chappell,  In  re,  §  42,  p.  57;  §  444,  p. 
287;  §  1342,  p.  785;  §  1363,  p.  793;  § 
1403,  p.  831;   §   1768,  p.   1076. 

Chase,  In  re,  §  789,  p.  463;  §  993,  p.  554; 
§  1606,  p.  977;  §  1614,  p.  981;  §  1615, 
p.  982;  §  1616,  p.  983;  §  1621,  p.  986; 
§  1632,  p.  1005;  §  1734,  p.  1068;  §  1827, 
p.  1124. 

Chasnoff,   In  re,  §   604,  p.  360. 

Chatfield  z:  O'Dwyer,  §  824,  p.  477;  § 
826,  p.  479;  §  896,  p.  512;  §  2827,  p. 
1654;  §  2830,  p.  1655;  §  2831,  p.  1655. 

Chattanooga  v.  Hill,  §  2136,  p.  1318; 
§  2141,  p.  1319;  §  2141,  p.  1320;  §2141, 
p.  1321;  §  2147,  p.  1324;  §  2190,  p. 
1346. 

Chattanooga  Xat'l  Bk.  z'.  Rome  Iron 
Co.,  §  1686,  p.  1037;  §  1811,  p.  1110. 

Chauncey  v.  Dyke  Bros.,  §  1154,  p. 
681;  §  1267,  p.  747;  §  1582,  p.  949; 
§  1696,  p.  1045;  §  1698,  p.  1048;  §  1780, 
p.  1079;  §  1797,  p.  1094;  §  1813,  p. 
1111;  §  1885,  p.  1178;  §  1888,  p.  1181; 
§    1896,    p.    1185;    §    1965,    p;    1223;    § 


1966,  p.   1225;   §   1975,  p.   1228;   §  2202, 

p.    1353. 
Chase,  Bear  z'. 

Chavez,  In  re,  §  2205,  p.  1357. 
Cheeves,   Woodruff  v. 
Chem.  Xat.  Bank  v.  Meyer,  §  64,  p.  70; 

§   1603,  p.  971. 
Cheney,   Knight  z'. 
Cheney,  McKenney  v. 
Chequasset   Lumber    Co.,   In   re,   §   277, 

p.  203. 
Chesapeake  Shoe  Co.  v.  Seldner,  §  1138, 

p.   665;   §   1207,  p.  701;   §  1212,  p.   711; 

§   1241,  p.   736;  §   1245,  p.   739;   §   1265, 

p.   745;   §   2916,  p.   1709. 
Chicago   Dry  Goods   Co.,   Neustadter  z;. 
Chicago-Joplin  Lead  &  Zinc  Co.,  In  re, 

§  85,  p.  84;   §  87,  p.  85;  §  93,  p.   87. 
Chicago  Title  and  Trust  Co.,  Ex  parte, 

§  3012,  p.  1743. 
Chicago,    T.    &    T.    Co.    v.    Roebling's 

Sons,  §  1350,  p.  789;  §  1352,  p.  790;  § 

1304,  p.  794. 
Child,  Trust  z: 

Chisholm,  In  re,  §  2224,  p.  1363. 
Chisholm   z'.    Earle    Ore    Sampling   Co., 

§  1228,  p.   730. 
Chism.  z'.  Bk.,  §  1397,  p.  825;  §  1721,  p. 

1061;  §   1722,  p.   1061;  §  1761,  p.  1074; 

§  1797,  p.  1093. 
Christ  z\  Zehner,  §  1237,  p:  735;  §  1379, 

p.  807;  §  1384,  p.  815. 
Christensen,  In  re.  §  20,  p.  37;  §  407,  p. 

265;   §   1416.  p.   839;   §  1427,  p.  846. 
Christer,    Pratt   z'. 

Christmas  z:  Russell,  §  1370,  p.  797. 
Christopherson    v.    Oleson,    §    1396,    p. 

825. 
Christy,   In   re.   §   1679,   p.   1034;   §   1885, 

p.  1181;  §  1965,  p.  1223. 
Churchman's   Appeal,   §   972,   p.    544. 
City   Bank,  Wilson  v. 
City  Bk.  of  Sav.,  In  re,  §  1173,  p.  688. 
City  Deposit  Bk.  Co.,  Rector  v. 
City   Xat'l   Bk.  of  Greenville  v.   Bruce, 

§  1295,  p.  760. 
City  of  Waco  v.  Bryan,  §  2141,  p.  1319; 

§  2141,  p.  1320;  §  2145,  p.  1322;  §  2145, 

p.    1323;    §    2147,    p.    1324;    §    2152,    p. 

1329;    §   2712,  p.   1605. 
City  of  Wilmington  v.   Ricand,   §   2921, 
p.   1711. 


TABLE  OF  CASES. 


1969 


3437,   p.    1471;    §    24 


167. 


'4; 


Claff,   In   re,  §  3437,  p.   1471;   §   2438,  p. 

1474;  §  2665,  p.  1586;  §  2680,  p.  1594. 
Claflin  Dry  Goods  Co.  v.  Eason,  §  1884^ 

p.    1176;    §    2744,    p.    1616;    §    2783,    p 

1628;  §   2789,  p.  1632. 
Claiborne,  In   re,  §   465,  p.  305. 
Clairmont,  In  re,  §  882,  p.  504. 
Clarion   Bank  z'.  Jones,  §   131,  p.   115. 
Clark    V.   Am.    Mfg.    &    Enamel    Co.,    ^ 

145,  p.  128;  §  147,  p.  128;  §  412,  p.  2 
Clark,   Booth  z: 
Clark.    In    re,   §   63,   p.   68;   §    70,   p.    7 

§   1000,  p.  556. 
Clarke    v.    Larremore,    §    1429,    p.    847; 

§   1444,  p.   854;  §   1451,  p.  860;   §   1460, 

p.   866;  §   1467,  p.   872;   §   1477,  p.   879; 

§   1478,  p.   880;  §  1479,  p.   881;   §  1481, 

p.  883;  §  1489,  p.  886;  §  1805,  p.  1100; 

s  ico-r    ^    1-.02;  §  1901,  p.  1188;  §  1902, 
..^,   s   —39,  p.   1370. 
V.  Equitable  Life  Assurance  Soc, 

§  1008,  p.   560;  §  1015,  p.  565. 
Clark  V.  Henne  &  Meyer,  §  221,  p.  175; 

§    239,    p.    185;    §    251,    p.    191;    §    257, 

p.    192. 
Clark  V.  Ins.  Co.,  §  1006,  p.  559;  §  1006, 

p.  560;  §  1014,  p.  564. 
Clark  z>.   Iselin,   §   1503,   p.   899. 
Clark,    Neal  v 


p.  1190;  §  9') 
Clark 


Clark  z:  Pidcock,  §  567,  p.  344;  §  871,  p. 
498;  §  2298,  p.  1401;  §  2300,  p.  1401; 
§  2305,  p.  1402;  8  2311,  p.  1404;  § 


^^^,  s  ^^.^,  ^.  ^.^.,  cs  ^^...,,  p.  1401; 
§  2305,  p.  1402;  §  2311,  p.  1404;  § 
2314,  p.  1405;  §  2833,  p.  1656;  " 


2937, 
p.  627;   §  2679, 


ooo 


p.  1716. 
Claster  v.  Soble,  §  1102 

p.  1594. 
Cla3^ton    V.    Exchange    Bk.,    §    1 

724. 
Cleage  v.   Laidley,  §   45,  p.   59;   §   80,   p. 

80;   §   235,   p.   184;   §    803,   p.   470. 
Cleanfast  Hosiery  Co.,  In  re,  §  235,  p. 

183;    §    702,    p.    423;    §    730,    p.    439;    § 

2141,  p.  1319;   §   2141,  p.  1320;  §  2160, 

p.    1333;    §    2161,    p.    1334;    §    2162,    p. 

1334. 
Cleland   v.    Anderson,    §    952,   p.    535;    § 

1019,   p.   569. 
Clemmons  v.  Brinn,  §  647,  p.  389. 
Clendening  v.  Red  River  Valley  N.  Bk., 

§   523,  p.   325;  §   523,  p.   326;   §   791,   p. 

464;    §    792,    p.    464;    §    793,    p.    464;    § 

2  Rem  B— 49 


812,  p.  473;  §  1771,  p.  1076;  §  1771,  p. 

1077;   §   1773,  p.  1077. 
Cleveland  Ins.  Co.,  Globe  Ins.  Co.  v. 
Clevenger   v.    Moore,    §    977,    p.    547;    § 

1019,   p.   568. 
Clews,  Hennequin  v. 
Clifife,  In  re,  §  252,  p.  191;  §  255,  p.  191; 

§   257,  p.  193;   §   260,  p.   195;   §  261,  p. 

195;  §  1563,  p.  939. 
Clifford,  In  re,  §  1295,  p.  760;  §  1314, 

p.  770;  §  1326,  p.  777;  §  1342,  p.  785; 

§   1395,  p.   822;  §  1500,  p.  896. 
Clinton   V.    Mayo,   §   200,   p.    164;   §   205, 

p.  168. 
Clisber,   McChristal   v. 
Clisdell,  In   re,  §  30    p.  46;  §  33,  p.   52; 

§    33,    p.    53;    §    241,    p.    186;    §    430,    p. 

276;    §    435,    p.    278;    §    450,    p.    296;    § 

546,  p.   333;   §   1038,   p.   592;   §  2477,  p. 

1495;   §  2478,  p.  1495;  §   2415,  p.  1459. 
Clothier,  In  re,  §  2448,  p.  1486;  §  2449, 

p.    1486;    §    2453,    p.    1486;    §    2454,    p. 

1486. 
Clothing  Co.  v.  Hazle,  §   360,  p.  242;   § 

1917,  p.   1194. 
Clute,   In   re,   §    1206,   p.    699;   §    1711,   p. 

1056. 
Coal    &   Coke    Co.  v.   Stauffer,   §   97,   p. 

93;  §  168.  p.  142;  §  1634,  p.' 1008. 
Coal   Fields    Co.  v.   Caldwell,   §   526,   p. 

329;   §    2887,   p.   1696;  §   2889,   p.   1697; 

§    2893,    p.    1698;    §    2895,    p.    1700;    § 


!,  p.   1701;   §  2966,  p.   1727. 
Coats,  Crandall  v. 


2898, 


Cobb,  Bray  v. 

Cobb,  In  re,  §  760,  p.  453;  §  868,  p.  497; 

§  909,  p.   519;   §  910,  p.   519;   §  910,  p. 

519;    §    911,    p.    520;    §    913,    p.    520;    § 

1314,    p.    771;    §    1326,    p.    777;    §    1500, 

p.   896;  §   1528,  p.  914;  §  1533,  p.  916; 

§  1536,  p.  917;   §   1573,  p.  943;  §   1574, 

p.  944;  §  1679,  p.  1034;  §  1797,  p.  1094; 

§    1798,    p.    1098;    §    1885,    p.    1178;    § 

1913,  p.   1192. 
Cobb  V.  Overman,  §  651,  p.  390;  §  653, 
394;   §   676.  p.   412;   §  707,  p.   425;   § 
■,    p.    426;    §    1798,    p.    1098;    §    2034; 
1261. 

obin,    Omsley  v. 

oburn.    In   re,   §   202,   p.   165;   §   229,   p. 

179;    §    236,    p.    184;    §    672,   p.    407. 
Coburn,   Moulton  v. 


P- 

707, 

P 
Cob 
Cob 


1970 


TABLE  OF  CASES. 


Coddington,  In  re,  §  179,  p.  150;  §  181, 

p.   151;  §  1095,  p.  619;  §  1353,  p.  790; 

§  1355,  p.   791. 
Codington,    Stilton   v. 
Coe,  Powers  &  Co.,  In  re,  §  756,  p.  449. 
Coffin,    In   re,   §   963,    p.    538;    §    974,   p. 

546;    §    1312,    p.    712;    §    2103,    p.    1299; 

§  2104,  p.  1300;  §  2206,  p.  1358. 
Coffin,    McCarty   v. 
Coffman,   In   re,   §   1048,  p.   599;   §   1820, 

p.  1118. 
Coggins,  Beaseley  v. 
Cogley,   In   re,   §   932,   p.   524;    §   933,   p. 

524;   §   1971,  p.    1226;   §    1971,   p.   1227; 

§   1989,  p.  1233;  §   1990,  p.   1233. 
Cohen,   Conrader  v. 
Cohen,    In   re,   §   373,    p.    246;   §    869,   p. 

498;   §   2387,   p.   1443;   §   2540,  p.   1528; 

§    2635,    p.    1571;     §    2639,     p.    1572;     § 

2652,  p.  1576;  §  2855,  p.  1667. 
Cohen  V.   Wagar,   §   1729,   p.    1064;    Co- 
hen,  In   re,   §   545,   p.    333;    §   1565,   p. 

940;   §   1652,   p.   1022;    §    1676,  p.    1034; 

§    1695,    p.    1044;    §    1796,    p.    1089;    § 

2544,  p.  1532;  §  2544,  p.   1533. 
Cohn,   Hahlo  v. 
Cohn,  U.   S.  V. 
Colacula,  In  re,  §  2741,  p.  1615;  §  2754, 

p.   1619;   §   2754,  p.   1620. 
Cole,    In   re,   §   1569,   p.   942;    §    1836,   p. 

1129;  §  1842,  p.  1140;   §  1845,  p.  1145; 

§    1849,    p.    1146;    §    1854,    p.    1153;    § 

1855,  p.   1154;   §  1857,  p.   1155;   §.1858, 

p.    1156;    §    2691,    p.    1597;    §    2748,    p. 

1617;  §  2861,  p.  1672;  §  3009,  p.   1741. 
Cole  &  Hoblitzel,  In  re,  §  265,  p.  197. 
Cole,  Merchants'  Nat'l  Bk,  v. 
Cole,   Moody  v. 
Cole,  Rex  v. 
Cole,    Scammon    v. 
Coleman,   In  re,  §   1005,   p.   558;   §   1006, 

p.  559;   §  1009,  p.   561;   §   1011,  p.   562; 

§  1012,   p.  563;   §  1016,  p.   566;   §   1115, 

p.   636. 
Coller,  In  re,  §  1047,  p.   595;  §   1047,  p. 

597;  §  1077,  p.  612. 
Collier,    In   re,   §   288,   p.   207. 
Collignon,   In'  re,   §    640,   p.   381;    §   652, 

p.    393;    §    653,    p.    397;    §    656,    p.    400; 

§  659,  p.  401;  §  2729,  p.  1610. 
Collins,  In  re,  §  1335,  p.  782;  §  1335, 

p.   783;  §   1431,  p.   848;  §   1437,  p.   850; 


§   1451,  p.  860;  §  1458,  p.   865;  §  1460, 

p.  867;  §  1463,  p.  869;  §  1464,  p.  871. 
Collins   V.    McWalters,   §   2682,   p.   1595; 

§    2706,    p.    1603;    §    2748,    p.    1618;    § 

2761,  p.   1622. 
Collisi,    In   re,    §   1883,   p.   1169;    §   1883, 

p.   1172. 
Collison,  In  re,  §  1751,  p.   1072. 
Cololuca,   In   re,   §   441,   p.   282. 
Colton  Export  &  Import  Co.,  In  re,  § 

1390,    p.    820;    §    1418,    p.    840;    §    1419, 

p.   841. 
Columbia    Bank   v.    Birkett,    §    2767,    p. 

1625;   §   2769,   p.  '1625. 
Columbia   Bank,   Birkett  v. 
Columbia  Distilling  Co.,  Buder  v. 
Columbia    Iron   Wks.,    In   re,   §   571,   p. 

346;    §    571,    p.    347;    §    574,    p.    348;    § 

576,    p.    349;    §    578,    p.    349;    §    632,    p. 

375;    §    768,    p.    456;    §    864,    p.    496;'   § 

887,    p.    506;    §    897,    p.    513;    §    898,    p. 

513;    §   901,    p.    516;    §    902,    p.    516;    § 

1926,  p.  1203;   §   1927,  p.  1204;  §  1939, 

p.   1209. 
Columbia  Iron  Works  v.  National  Lead 

Co.,  §  90,  p.  86;  §  532,  p.  331;  §  2891, 

p.    1698;    §    2893,    p.    1698;    §    2913,    p. 

1708;  §  2986,  p.   1733. 
Columbia  Real  Estate  Co.,  In  re,  §  30, 

p.    46;    §    94,    p.    89;    §    321,    p.    223;    § 

414,    p.    268;    §    427,    p.    275;    §    431,    p. 

277;  §  432,  p.  277;  §  433,  p.  277;  §434, 

p.    278;    §    436,    p.    279;    §    437,    p.    280; 

§    444,   p.    283;    §    450,    p.    296;    §    2864, 

p.    1679;    §    2900,    p.    1702;    §    2912,    p. 

1706;  §  2920,  p.  1710;  §  2922,  p.  1712. 
Columbus  Buggy  Co.,  In  re,  §  1228,  p. 

731. 
Columbus    El.    Co.   V.   Worden,   §    1331, 

p.  780. 
Colwell,  Tinker  v. 
Colwell  V.  Tinker,  §  2760,  p.  1621. 
Comingor,    Louisville    Trust    Co.    v. 
Comstock,  Hayer  v. 
Comstock,  In  re,  §  1573,  p.  943. 
Conboy    v.    National    Bank,    §    2989,    p. 

1735;   §  3022,  p.   1748. 
Condict,  In  re,  §  2608,  p.  1560. 
Coney,    Holbrook   v. 
Congdon,  In  re,  §   1603,  p.  973;   §   1603, 

p.  974. 


TABLE  OF  CASKS. 


1971 


Conhaim,  In  re,  §  578,  p.  349;  §  768,  p. 

456;   §   1277,  p.   755;   §   1421,  p.   842;   § 

2141,  p.   1319;  §  2143,  p.   1321;   §   2147, 

p.  1324;  §  2152,  p.  1330. 
Conkling,  Crompton  v. 
Conley,   In  re,   §   2550,   p.   1537. 
Conn,   In  re,  §   2522,  p.   1521. 
Connell  &  Sons,  In  re,  §  2043,  p.  1265; 

§    2044,    p.    1266;    §    2045,    p.    1266;    § 

2048,  p.   1271;  §  2078,  p.   1287;  §  2081, 

p.   1288. 
Connell,   Peck  v. 
Connett,    First.  Nat'l    Bk.   v. 
Connolly,  In  re,  §  1696,  p.  1046;  §  1698, 

p.    1048;    §    1698,    p.    1049;    §    1699,    p. 

1049;   §    1832,   p.    1126. 
Connor,  In  re,  §  131,  p.   114;  §  1370,  p. 

797. 
Conrader,  In  re,  §  2238,  p.  1369. 
Conrader  v.   Cohen,  §   2238,   p.   1369;   § 

2256,  p.  1376;  §  2257,  p.  1380. 
Conroy,  In  re,   §   2460,   p.   1488-   *   '' '"^ 

p.    1488;    §    2493,    p.    1505;    § 

1509;  §  2537,  p.  1527;  §  2544,  p.  1534; 

§    2634,    p.    1570;    §    2649,    p. 


1505;  §  2508,  p, 
;  §  2544,  p.  1534; 
2649,    p.    1575;    § 


2650,  p.   1575. 
Construction  Co.,  Butt  v. 
Construction   &   Dry   Dock   Co.,    In   re, 

§  1258,  p.  742. 
Continental  Corporation,  In  re,  §  12,  p. 

28;   §   17,   p.   34;   §   18,   p.   34;   §   19,   p. 

36;  §  444,  p.  283;  §  445,  p.  288;  §  447, 

p.    291;    §    495,   p.    315;    §    789,    p.    463; 

§  790,  p.  463. 


8  vyu,  p.  *Oi5. 
Continental   Nat'l  Bk.  v 
p.  851;  §  1524,  n    QOfi- 
§  2709,  p.  1604 


p.    463; 
Katz,    §    1439, 


JJi^.     c.     ivauA,     s     i-±->3, 

p.  851;  §  1524,  p.  906;  §  2691,  p.  1597; 
§  2709,  p.  1604 
Cook,   Bank 


Cook,    Gardner   v. 

Cooke,  In  re,  §  1555,  p.  930;  §   1839,  p. 

1133;    §    2643,    p.    1574. 
Cooke  V.  Scovil,  §  1798,  p.  1098. 
Cookingham  -v.   Morgan,   §   611,  p.   363. 
Cooley,   Hall   v. 
Cooper,  In  re,  §  887,  p.  507. 
Cooper  Grocery  Co.  v.  Bryan,  §  2141,  p. 

1319;  §   2148,  p.  1326. 
Cooper,  Smith  v. 
Co-op.  Shear  Co.,  In  re,  §  1209,  p.  707; 

§  1242,  p.  737. 
Copper  King,  The,  In  re,  §  627,  p.  373; 


§  1485,  p.  884;  §  2197,  p.  1350;  §  2197, 

p.  1351;  §  2198,  p.  1352. 
Corbett,  In  re,  §  1134,  p.  646;  §  1797,  p. 

1093;  §  1800,  p.  1099;  §  1807,  p.  1105; 

§    1885,    p.    1178;    §    2097,    p.    1296;    § 
■  2100,  p.  1298;  §  2101,  p.  1298. 
Corbin,    Sturgis   v. 
Corcoran,  In  re,  §  59,  p.  65;  §  2238,  p. 

1369;  §  2256,  p.  1376;  §  2255,  p.  1375; 

§   2257,   p.   1377. 
Corn,   In  re,  §  2545,  p.   1533;   §   2549,  p. 

1536;   §  2635,  p.  1570;  §  2639,  p.  1572. 
Cornell,  In  re,  §   444,  p.  283;   §  2511,  p. 

1511;  §  2511,  p.  1512;  §  2647,  p.  1574; 

§  2655,  p.  1577;  §  2656,  p.  1578. 
Cornice    &   Roofing   Co.,    In    re,    §    384, 

p.    252;    §   2036,   p.   1262. 
Cornucopia  ]Mines,  Swafford  v. 
Cosmopolitan  Power  Co.,  In  re,  §  2143, 

p.    1321;    §    2155,    p.    1330;    §    2156,    p. 

1331;  §  2157,  p.  1332;  §  2158,  p.  1332; 

§    2898,    p.    1701;    §    2899,    p.    1701;    § 

2901,  p.  1702;   §   2902,  p.   1703;  §   2903, 

p.    1703. 
Cotterell,  S.  P.  v.  Hook,  §  656,  p.  399. 
Cotton    Co.,    In   re,    §    1819,   p.    1117;    § 

1833,  p.   1128;   §   1841,   p.  1135;   §   1850, 

p.   1147;   §   2649,  p.   1575. 
Council     B.     Sav.,     Des     Moines     Nat'l 

Bk.  V. 
Counselman    v.    Hitchcock,    §    1558,    p. 

933. 
Countryman,    In   re,   §   2508,   p.    1510;    § 

2511,   p.   1512;   §    2511,   p.    1513. 
Couts  V.  Townsend,   §   49,  p.   61;   §   79, 

p.  79;  §  2861,  p.  1671. 
Covington,   In  re,   §   523,   p.  325;   §   549, 

p.    334;    §    2045,    p.    1266;    §    2048,    p. 

1272;  §  2079,  p.  1288;  §  2522,  p.  1521; 

§  2632,  p.  1569;  §  2634,  p.  1569;  §  2639, 

p.  1572;  §  2861,  p.  1670. 
Cowley  V.   R.   R.   Co.,  §  2229,  p.  1364. 
Cox  V.  Farley,  §  602,  p.  358. 
Cox,  McPherson  v. 
Cox,   Manufacturing  Co.  v. 
Cox,   State   Bank  v. 
Cox  V.  State  Bank,  §  1126,  p.  642. 
Coxe   V.    Hale,   §   136,   p.   120. 
Cox  V.  Wall,  §  1653,  p.  1024;  §  1726,  p. 

1063;  §  1741,  p.   1070. 
Cox.   Wall   V. 
Craft,  In  re,  §  265,  p.  197. 


1972 


TABLE  OF  CASES. 


Craig  Bros.,  Bank  v. 

Cramond,  In  re,  §  999,  p.  556;  §  1150,  p. 

679;    §    1154,    p.    681;    §    1155,    p.    681; 

§  1156,  p.  682;  §  1162,  p.  684;  §  1207, 

p.  699;  §  1223,  p.  725;  §  1885,  p.  1178; 

§  1885,  p.  1179;  §  2104,  p.  1300;  §2109, 

p.  1302;  §  2188,  p.  1345. 
Crandall  v.   Coats,  §  644,  p.  384;  §  1303, 

p.  766;  §  1310,  p.  767;  §  1395,  p.  823; 

§   1396,  p.  824;  §   1407,  p.   834;  §  1410, 

p.    836. 
Crane   Co.  v.  Smythe,  §   1154,  p.   680;   § 

1155,  p.  682;  §  1156,  p.  682;  §  1161,  p. 

684;  §  1212,  p.  713. 
Crawford  v.  Burke,  §  628,  p.  373;  §  636, 

p.   377;   §   705,  p.   424;   §   710,  p.   427;   § 

2731,  p.  1611;  §  2732,  p.  1612;  §  2733, 

p.  1613;  §  2748,  p.  1617;  §  2783,  p.  1628; 

§  2784,  p.  1629. 

Crawford,  Farrin  z'. 
Crawford,  In  re,  §  G72,  p.  407. 
Creasinger,  In  re,  §  603,  p.  359;  §  604,  p. 

360;  §  844,  p.  484. 
Credit  Co.  v.   Ark.  Central  Ry.  Co.,  § 

2977,  p.  1732;  §  2978,  p.  1732. 
Creew,  In  re,  §  2482,  p.  1499. 
Crenshaw,  In  re,  §  2488,  p.  1503;  §  2489, 

p.  1504;  §  2505,  p.  1508;  §  2511,  p.  1511; 

§  2511,  p.  1513;  §  2522,  p.  1522;  §  2533, 

p.  1526;  §  2541,  p.  1530;  §  2542,  p.  1531. 
retiew.  In  re,  §  2508,  p.  1509. 

n  V.    Woodford,  §  1314,  p.  771;  § 

x326,  p.  777;  §  1500,  p.  896;  §  1503,  p. 

899;  §  1504,  p.  899;  §  2836,  p.  1656;  § 

2839,  p.  1659;  §  2851,  p.  1663;  §  2851, 

p.  1664;  §  2855,  p.  1666;  §  2856,  p. 

1667;  §  2856,  p.  1668;  §  2994,  p.  1736; 

§  2995,  p.  1737. 
Crist,  In  re,  §  2469,  p.  1493;  §  2511,  p. 

1513;  §  2610,  p.  1561;  §  2612,  p.  1562; 

§  2623,  p.  1565. 
Criterion  Watch  Case  Co.,  In  re,  §  2384, 

p.  1441;  §  2385,  p.  1441. 
Crittenden  v.   Barton,  §  1395,  p.  822;  § 

1396,  p.  824;  §  1398,  p.  826;  §  1399,  p. 

827. 
Crocker,  In  re,  §  704,  p.  424;  §  707,  p. 

425;   §  2760,  p.  1622. 
Crockett,  Deaf  &  Dumb  Institute  v. 
Crompton   v.    Conkling,    §    59,    p.    67;    § 

2794,   p.   1634. 


Cre 
Crim 

1 


Cronin,   In   re,   §    212,   p.    172;    §   236, 
184;  §  422,  p.  271. 


Cronon  v.  Cutting,  §  278c 
Tonson,  In  re,  §  2035,  p.  1262. 

V.  Peoples  Nat'l  Bank,  §  1300,  p. 
;    1.-^90.    n     820:    S    1394.   n. 


Crooks  V.  Peoples  JNat  1  iJank,  §  ] 

763;   §   1390,   p.   820;   §   1394,   p.   822;   § 

1395,  p.  822;  §  1394,  p.  822;  §  1397,  p. 

826;  §  1398,  p.  826;  §  1399,  p.  826;  § 

1400,    p.    828;    §    1413,    p.    838;    §    1763, 

p.    1075;    §    1764,    p.    1075;    §    1765,    p. 

1075;  §  1767,  p.   1075. 
Crosby,    Lehman    v. 
Crosby  z'."  Miller,  §  1144,  p.  674;  §  1209, 

p.  708;  §  1805,  p.  1101;  §  1812,  p.  1111; 

§  1813,  p.  1111. 
Crosby  v.  Spear,  §  1215,  p.  718;  §  1267, 

p.  747;  §  1582,  p.  949;  §  1797,  p.  1097; 

§  1798,  p.  1098;  §  1807,  p.  1101;  §  1807, 

p.   1105. 
Cross,    Reid  v. 

Crossman,  In  re,  §  1850,  p.  1147. 
Crow,  In  re,  §  2205,  p.  1357. 
Crowninshield,    Sturgis    z'. 
Crystal   Springs    Bottling   Co.,    In   re,   § 

976,  p.  547;  §  977,  p.  547;  §  977,  p.  548; 

§  978.  p.  548;  §  1172,  p.  688;  §  1175,  p. 

689;   §    1176,   p.   689. 
Cuddy,   Ex   parte,   §  2967,  p.   1728. 
Cullinane  z:  State  Bank,  §  1342,  p.  785; 

§   1359,  p.  792;   §   1395,  p.   823;   §   1400, 

p.  828;  §  1403,  p.  830;  §  1403,  p.  831. 
Cummins,  Patty-Joiner  Co.  v. 
Cunlifif,    Howard   v. 
Cunningham   v.    Bank,   §    511,   p.    322;   § 

2855,  p.   1666;   §  2855,  p.   1667;   §  2856, 

p.    1667;    §    2869,    p.    1684;    §    2881,    p. 

1690;  §  2900,  p.  1702;  §  2901,  p.   1702; 

§  2962,  p.  1726;  §  2963,  p.  1726;  §  2965, 

p.    1727;    §    2966,    p.    1727;    §    2968,    p. 

1728;   §  2968,  p.   1729;  §  2974,  p.   1730. 
nningham  z\   Gen       "^         -r^i      o 

_x   669;   "   '-  '" 

§   1885. 


Cu 


I  ^v ,    ^    ti,r)it,    p.     Alow. 

m.   Ins.  Bk.,  §  1140, 
p.   669;   §   1147,  p.   678;   §   1204,  p.  ^QS- 


§  1885.  p.   1180;   §  1896,  p.   118 
Cunningham,  In  re,  §  2224,  p.  1363. 
Currier,   In   re,   §   205,   p.   168;   §   359,   p. 

240;  §  365,  p.  244;  §  368,  p.  244;  §  1654, 

p.    1028;    §    1901,    p.    1188;    §    1905,    p. 

1190;  §  1918,  p.  1195. 
Curtin,  Hatch  v. 
Curtin,   Tucker   v. 
Curtis,  In  re,  §  24,  p.  40;  §  222,  p.     176;  § 

""'^,  p.  177;  §  653,  p.  396;  §  656,  p.  399; 


223, 


TABLE  OF  CASES. 


1973 


§  660,  p.  402;  §  662,  p.  403;  §  1603,  p. 

972;  §  1606,  p.  977;  §  1625,  p.  989;  § 

1628,  p.  994;  §  1629,  p.  997;  §  1632,  p. 

1006;  §  1632,  p.  1007;  §  1633,  p.  1008; 

§  2045,  p.  1266;  §  2046,  p.  1267;  §  2047, 

p.  1269;  §  2047,  p.  1270;  §  2048,  p. 

1271;  §  2064,  p.  1282;  §  2068,  p.  1283; 

§  2076,  p.  1286;  §  2103,  p.  1300;  §  2730, 

p.  1610;  §  2907,  p.  1704. 
Gushing,  In  re,  §  636,  p.  378;  §  704,  p. 

424;  §  710,  p.  427. 
Cushnian,  Fisher  v. 
Custard  v.   Wiggerson,  §  2442,  p.  1477; 

§  2684,  p.  1595;  §  2686,  p.  1595;  §  2761, 

p.  1623. 
Cutler  z:   Steele,  §  611,  p.  363. 
Cutting,  Cronin  v. 
Cutting,  In  re,  §  .1144,  p.  673;  §  1209,  p. 

707;  §  1230,  p.  732;  §  1240,  p.  736;  § 

1295,    p.    760;    §    1320,    p.    774;    §    1323, 

p.  776;  §  1374,  p.  802;  §  1379,  p.  807. 
Dacovich  v.  Schley,  §  2241,  p.  1371. 
Dahl,   Schmitt  v. 

Daht-Millakan    Grocery    Co.,    Yaple    v. 
Daignault,  St.  Gyr.  v. 
Damon,   In  re,  §  716,  p.   ^^^-   si   n^n    ^ 

4?!K-     8     75>5      r>      A-iP,-     8 


,    -„   .-,   „    .^-,   p.   429;   §   719,   p. 

435;    §    723,    p.    436;    §    725,    p.    437;    § 


2131,  p.  1310. 
Daniels,  In  re,  §  1619,  p.  984; 
1248;   §  2029,  ^^    io^iq-  S  9nQ 
§  2031 


uj.»,   p.    t;o-±,    vj   jiOll,   p. 

1248;   §  2029,  p.  1259;  §  2030,  p.  1260; 

§  2031,  p.  1260;  §  2048,  p.  1272;  §  2197, 

p.    1350;    §    2203,    p.    1354;    §    2255,    p. 

1375;  §  2256,  p.  1376;  §  2257,  p.  1380. 
Dann,  In  re,  §  952,  p.  535;  §  959,  p.  537. 
Danville  Rolling  Mill  Co.,  In  re,  §  2156, 

p.   1331. 
Darby  v.   Inst.,  §   1500,  p.   896. 
Darwin,  In  re,  §  1448,  p.  858;  §  1458,  p. 

865;  §  1459,  p.  865;  §  1459,  p.  866. 
Daskam,   McDonald  v. 
Daubner,   In  re,  §   1047,  p.   595. 
Dauchy,   In  re,  §  2464,   p.  1489;   §  2508, 

p.    1509;    §    2508,    p.    1510;    §    2511,    p. 

1513;   §  2512,  p.  1514;  §  2541,  p.  1530; 

§  2557,  p.  1540;  §  2639,  p.  1572. 
Davidson,  In  re,  §  1133,  p.  645;  §  1314, 

p.  771. 
Davidson    v.    Ferguson-McKinney    Co., 

§  2932,  p.  1715;  §  2934,  p.  1715. 
Davidson  v.  Friedman,  §  2041,  p.  1264;  § 

2054,  p.   1276;  §   2868,  p.   1683;   §  2884, 

p.    1695;    §    2900,    p.    1702;    §    2905,    p. 


1704;  §   2907,  p.   17*04;  §  2718,  p.  1710; 

§   2933,   p.    1715. 
Davis  V.  Bohle,  §  1603,  p.  973;  §  1602,  p. 

967;   §   1603,  p.  969;   §   1604,   p.   975;   § 

1610,  p.  978;  §  1827,  p.  1123. 
Davis  v.   Brown,  §  158,  p.  135. 
Davis,  In  re,  §  974,  p.  546;  §  1169,  p.  687; 

§  1329,  p.  778;  §  1329,  p.  779;  §  1341,  p. 

785;  §  1665,  p.  1031;  §  1819,  p.  1115; 

§  1822,  p.  1119;  §  1823,  p.  1120;  §  1836, 

p.  1128;  §  1847,  p.  1145;  §  1863,  p. 

1159;  §  1879,  p.  1166. 
Davison,  In  re,  §  1842,  p.  1140;  §  1845, 

p.  1142;  §  1857,  p.  1155;  §  1858,  p. 

1156;  §  1859,  p.  1157. 
Davis  z:   Schwartz,  §  146,  p.  128. 
Davis  z\   Stevens,  §  60,  p.  67;  §  103,  p. 

103;  §  111,  p.  107;  §  150,  p.  130;  §  171, 

p.  144;  §  182,  p.  152;  §  246,  p.  189. 
Davis   Tailoring  Co.,    In   re,   §   1652,   p. 

1020;    §    1821,   p.    1118. 

avis  v.  Turner,  §  1147,  p.  677;  §  1199, 

T^     COT.    g    1260     "^     'yio-    S    -I01I     r,     ir'7n. 


Dav...   ..    ^ ,   o    ^^..,   ^.   „..,    ^    ^^ 

p.   697;  §   1260,  p.  743;  §   1314,   p.  770; 

§   1500,  p.  896;   §   1500,  p.   897;  §  1501, 

p.  898;  §  1504  p.  900;  §  2236,  p.  1367; 

§    2245,    p.    1372. 
Davis,  Waters  v. 
Davis,   Wilkins  v. 
Dawley,  In  re,  §  1047,  p.  596. 
Dawson  Grocery  Co.,  Bell  v. 
Day  V.  Beck  &  Gregg  Hdw.  Co.,  §  147, 

p.  129;  §  406  p.  265;  §  427,  p.  275. 
Dayville  Woolen   Co.,   In   re,  §    887,   p. 

505;    §    893,    p.    509. 
Deaf  &   Dumb   Institute  v.   Crockett,  § 

2237,  p.  1368;  §   2249,  p.  1373;  §   2255, 

p.    1375;    §    2269,    p.    1388;    §    2271,    p. 

1390;  §  2276,  p.  1392;  §  2795,  p.  1636; 

§  2796,  p.  1637;  §  2797,  p.  1640;  §  2798, 

p.  1642;  §  2799,  p.  1642. 
Dean  v.  Justices  of  the  ^Municipal  Court, 

§    2681,   p.    1594. 
Deckert,  In  re,  §  1023,  p.  571. 
~  :Gottardi,  In  re,  §  526,  p.  328;   §   548, 
1.   333;   §    552,   p.   335;   §    1549,   p.   926; 
1554,  p.  928;  §  1819,  p.  1115;  §  1838, 

p.    1130;    §    1842,    p.    1137;    §    1850,    p. 

1147;  §  1856,  p.  1154;  §  2629,  p.  1567; 

§  2839,  p.   1659. 
Deland  v.  Miller,  §  1140,  p.  668;  §  1222, 

p.   724;  §  1234,  p.  734;   §   1320,  p.  775; 

§   1321,  p.   775;  §   1379,  p.   804;  §  1379, 


De 
P 
§ 
P 


1974 


TABI,E  OF  CASES. 


p.   807;   §   1395,  p.   822;   §  1396,  p. 
S  1507,  p.  901;  §  1731,  p.  1064;  § 

1  1  QX 

3695,  p.  1598;  §  2700, 


824, 
1896, 


p.  1185. 
De  Lany,  In  re,  § 
p.  1601;  §  2702   - 


p.  1602;  §  2704,  p.  1603. 
DeL< 


1523. 


1. 


^eeuw,    In    re,    §    2522,    p 
DeLemos   v.    U.    S.,   §    2921,    p.    171 
Delevan,   In   re,   §   2482,   p.   1499. 
Delling,  In  re,  §  1419,  p.  841. 
De  Long,  In  re,  §  527,  p.  330;  §  2702,  p. 

1601;   §  2702,  p.   1602;  §  2709,  p.   1604. 
Delta  Nat'l  Bk.  v.  Easterbrook,  §  1685, 

p.    1036;    §    1690,    p.    1041;    §    1691,    p. 

1042;  §  2874,  p.  1686;  §  2882,  p.   1693; 

§  2912,  p.  1707;  §  2920,  p.  1710;  §  2921, 

p.   1711;   §  2941,  p.   1719. 
De  Lue,  In  re,  §  1455,  p.  863;  §  1459,  p. 

865;  §  1464,  p.  871. 
Demarest,  In  re,  §  1047,  p.  596. 
Denning,   In   re,   §   1303,  p.   766;   §   1312, 

p.  769;  §   1385,  p.  816;   §   1387,  p.   818; 

§  2238,  p.  1369;  §  2251,  p.  1374;  §  2254, 

p.    1374;    §    2262,    p.    1386;    §    2270,    p. 

1388;   §   2271,   p.  1390;   §  2273,  p.  1391. 
Denny  v.  Bennett,  §   1627,  p.  993. 
Dent,  Pickens  v. 
De  Pauw  Co.,  Bank 
Deshell,   Benedict  v. 


V. 


p.  424. 


,    r>eiieuicL    v. 
Deshler  v.  McCauley,  §  704,  p. 
les   Moines   Bank   v.    Morgan   Jewelry 
Co.,   §   1596,  p.  964;   §   1597,  p.  964. 
•  es    Moines    Nat'l    Bk.    v.    Council    B. 
Sav.,  § 


Des   Moines   Bank  v.   Mo 

Co.,   §   1596,  p.  964;   §   1597, 
Des    Moines    Nat'l    Bk.    v.    Council    B 

Sav.,  §  1160,  p.  683;  §  1199,  p.  697. 
Deuell,  In  re,  §  1819,  p.  1115;  §  1850,  p. 

1146;  §  1851,  p.  1150;  §  1856,  p.  1154. 
Devlin,  Hurlew  v. 
De  Vries  v.   Orem,  §  2117,  p.   1305. 
Devries  v.  Shannahan,  §  2854,  p.  1665;  § 

2857,   p.  1668;  §  2951,  p.  1723;   §  2962, 

p.  1726. 
tewey,  In  re,  §  898,  p.  513. 
Dewey,  Munroe  v. 
Dews,   In  re,   §   1004,  p.   558;   §   2522,   p. 

1522;   §  2549,  p.   1536;  §   2649,  p.   1575. 
Dexter    Broom    &    Mattress    Co.,    Can- 
non V. 
Diack,   In  re,  §   1006,  p.   559;  §   1006,  p. 

560;    §    1009,    p.    561;    §    1010,    p.    562; 

§    1011,    p.    562. 
Dial,  Erie  R.  R.  Co.  v. 
Diamond,  In  re,  §  2255,  p.  1375;  §  2802, 

p.  1642. 


Dickas  v.  Barnes,  §  65,  p.  71;  §  2331,  p. 

1365;  §  2882,  p.   1692;   §  2916,  p.   1709; 

§   2932,   p.   1715;   §   2935,  p.   1716. 
Dickey,   Frank  v. 
Dickinson,  In  r( 

p.   843. 


■e,  §  1369,  p.  795;  §   1421, 

ty  Bk.  of 
§  layy,  p.  YOd. 
Dietz,  In  re,  §  2481,  p.  1498; 
1  647, 


Dickinson  v.  Security  Bk.  of  Richmond, 
§  1299,  p.  763. 


814,  p. 

1647. 
Dight  r.  Chapman,  §  494,  p.  313;  §  573, 

p.   348;  §  709,  p.  427;   §  2742,  p.   1616; 

§  2761,  p.  1622;  §  2769,  p.  1625;  §  2777, 

p.  1627;  §  2779,  p.  1627. 
Dillard,  In  re,  §  1971,  p.  1226. 
Diller,  In  re,  §  1047,  p.  596;  §  1057,  p. 

605;  §  1089,  p.  616.  • 
Dillon,  In  re,  §  611,  p.  362;  §  611,  p. 

363;  §  630,  p.  374;  §  1172,  p.  688;  § 

1177,    p.    689;    §    1177,    p.    690;    §    1179, 

p.  690;  §  2259,  p.  1385;  §  2272,  p.  1390; 

§  2280,  p.  1395. 
Dimm    &   Co.,    In    re,    §    2054,    p.    1278; 

§  2115,  p.  1304. 
Dinglehoef  Bros.,   In   re,  §   33,   p.   53;   § 

1038,  p.   592. 
Dippel,  Reed  v. 
Dismal  Swamp  Contracting  Co.,  In  re, 

§   1326,  p.  777; •§  1370,  p.  796. 
Distler  v.   McCauley,  §  2739,  p.   1614;  § 

2754,  p.  1620;   §  2760,  p.  1622. 
Ditsch,  In  re,  §   1258,  p.  741;  §  1261,  p. 

743. 
Dixon,   In  re,  §   1243,  p.  738;   §  1245,  p. 

739;  §  2030,  p.  1260;  §  2031,  p.  1260. 


---,  „  ,  p.  1260;  §  2031,  p.  1260. 

Dobson,  In  re,  §  1464,  p.  871. 
Docker-Foster  Co.,  In  re,  §  836,  p.  483; 

§  841,  p.  484;  §  1355,  p.  791;  §  1356,  p. 

791;  §  1357,  p.  791;  §   1747,  p.   1071;  § 

1748,  p.  1071. 
Dodd,  Giddings  v. 
Dodd,  Samel  v. 
Doddy,  Jordan  &  Co.,   In  re,   §   141,  p. 

124. 
Dodge  V.  Kaufman,  §  2794,  p.  1634. 
Dodge  V.  Norlin,  §  20,  p.  37;  §  1140,  p. 

667;   §   1140,   p.   669;    §  1258,   p.   741;   § 

1262,  p.  744;  §  2875,  p.  1687;  §  2881,  p. 

1690;  §  2884,  p.  1695;  §  2912,  p.  1707; 

§  2915,  p.  1708;  §  2920,  p.  1711;  §  2921, 

p.  1711;  §  2923,  p.  1713;  §  2934,  p. 


table:  of  cases. 


1975 


1724;  §  2962,  p.  1726;  §  2963,  p.  1726; 

§  3009,  p.  1741. 
Doe   V.   Bevan,   §    987,    p.    550. 
Doherty,  In  re,  §  2522,  p.  1522. 
Dokken  v.  Page,  §  1494,  p.  893;  §  1496, 

p.  894;  §  1496,  p.  895;  §  1876,  p.  1165. 
Dole,  In  re,  §  993,  p.  553;  §  1885,  p.  1180. 
Dolle  V.  Cassell,  §  1140,  p.  669;  §   1215, 

p.  718;  §  1263,  p.  744;  §  2874,  p.  1686. 
Domenig,  In  re,  §  554,  p.  338;  §  556,  p. 

338;    §    798,    p.    466;    §    852,    p.    490;    § 

854,  p.  490;  §  2650,  p.   1576. 
Donahue,    Johnson    v. 
Donaldson  Z'.   Farwell,  §   1144,  p.  673. 
Doolittle,  Bank  v. 
Doran,  In  re,  §  1209,  p.  706;  §  1209,  p. 

707;   §   1210,  p.  708;  §   1210,   p.   709;   § 


1230,  p.  732;   §  1234,  p.  734. 


Dorn,   Glover  Grocery   Co.  v. 

Doroshow,  Ott  v. 

Doroshow  v.  Ott,  §  1832,  p.  1126;  §  2864, 

p.  1679;  §  2874,  p.  1686;  §  2921,  p.  1712; 

§  2922,  p.  1712;   §  2941,  p.  1719. 
Doscher,  In  re,  §  174,  p.  147;  §  1343,  p. 

787;   §   1344,  p.   788;   §   1346,  p.   788;   § 
1363,  p.  793. 
Doty,  In  re,  §  787,  p.  462;  §  838,  p.  483; 

§   839,  p.  484;   §   843,  p.   484;   §   844,  p. 

484;  §  846,  p.  488. 
Dougherty,  In  re,  §  1437,  p.  850. 
Douglass  Coal  &  Coke  Co.,  In  re,  §  128, 

p.  113;.  §  129,  p.  113;  §  132,  p.   115;  § 

132,    p.    116;    §    151,    p.    132;    §    153,    p. 

133;  §  155,  p.  133;  §  156,  p.  133;  §  159, 

p.  136;  §  177,  p.  149;  §  233,  p.  182. 
Douglass   &  Sons  Co.,  In  re,  §  801,   p. 

468;    §    1203,    p.    698;    §    2481,   p.    1498; 

§  2808,  p.  ^645;   §  2814,  p.  1647.. 
Douglass,  Unmack  v. 
Dow,  In  re,  §  454,  p.  302;  §  1555,  p.  930; 

§  1557,  p.  933;  §  1839,  p.  1133;  §  2464, 

p.    1489;    §    2540,    p.    1528;    §    2635,    p. 

1570;  §  2641,  p.  1573;  §  2642,  p.  1573; 

§    2962,  p.   1726. 
Dowder  v.  Rowell,  §  2817,  p.  1649. 
Downing,   In   re,   §   766,   p.    455;   §    1047, 

p.  597;  §  1100,  p.  626;  §  2257,  p.  1377; 

§  2794,  p.  1634;  §  2796,  p.  1637. 
Doyle  V.  Heath,  §  682,  p.  413;  §  1448,  p. 

857;   §  1449,  p.   858;  §  1455,  p 

1459,  p.  865;  §  1464,  p.  871. 


863; 


Doyle    V.    Alilw.    Nat'l    Bk.,    §    1288,    p. 

759;  §  1421,  p.  843. 
Drake,  Lathrop  v. 
Drake,   Wulbern  v. 
Dravo  v.  Fabel,  §  1759,  p.  1074. 
Drayton,  In  re,  §  523,  p.  327;   §  538,  p. 

332;    §    1582,   p.    949;    §    1797,   p.    1094; 

§  1874,  p.  116-4;  §  1885,  p.  1178;  §  2875, 

p.  1688;  §  2882,  p.  1692. 
Dreher   Shoe   Co.,   Phillips  v. 
Dressel  v.   North   State  Lumber  Co.,  § 

18,   p.   36;    §    33,   p.   54;    §   35,   p.    54;    § 

550,  p.  335;  §  552,  p.  336;  §  552,  p.  337; 

§  819,  p.  476;  §  1286,  p.  758;  §  1289,  p. 

759;  §  1421,  p.  843;  §  2011,  p.  1248;  § 

2628,  p.  1567;  §  2629,  p.  1567;  §  2842, 

p.  1661;  §  2844,  p.  1661;  §  2857,  p. 

1668. 
Dresser,  In  re,  §  470,  p.  306;  §  602,  p. 

358;  §  844,  p.  485;  §  1819,  p.  1115;  § 

2241,  p.  1370;  §  2464,  p.  1489;  §  2462, 

p.  1489;  §  2465,  p.  1489;  §  2557,  p. 

1540';  §  2558,  p.  1541;  §  2561,  p.  1542; 

§  2563,  p.  1542;- §  2563,  p.  1543;  §  2564, 

p.  1543;  §  2565,  p.  1543;  §  2569,  p. 

1544;  §  2581,  p.  1549;  §  2977,  p.  1731. 
Dresser  &  Co.,  In  re,  §  2559,  p.  1541; 

§  2565,  p.  1543;  §  2566,  p.  1543;  § 

2570,  p.  1544. 
Dresser,  Whitney  v. 
Drolesbaugh,  In  re,  §  1437,  p.  850. 
Drug  Co.  V.   Drug  Co.,  §  1209,  p.  707; 

§  1232,  p.  733;  §  1383,  p.  810;  §  2946, 

p.    1721;    §    2953,    "     '"'""'•    ^    ^"^'^     " 


p.    1721;    §    2953,    p.    1724;    §    2976,    p. 
1731;  §  2993,  p.   1736;  §  2996,   p.  1737. 
Drumgoole,  In  re,  §  616,  p.  366;  §  791.  o. 
464 


P- 


D 


Ty   Dock  Co.,   In  re 
1147,  p.  677; 


e,  §  1140,  p.  668;  § 
1147,  p.  677;  §  1199,  p.  697;  §  1209,  p. 
708;  §  1258,  p.  741;  §  1259,  p.  743;  § 
1262.  o.  744. 


1262,  p.  744. 
Dry  Goods  Co.,  Hussey  v. 
Dubant,  In  re,  §  1412,  p.  838. 
Duble,   In  re,  §   1160,  p.   683;  §   1799,  p. 

1099;  §  1807,  p.   1102;   §   1807,  p.  1104; 

§  2204,  p.  1356. 

Ducker,  In  re, 

707;   §   1212,  p.  711;   §   1230,  p.  732;   § 
;34, 
16. 


:er.  In  re,  §  896,  p.  512;  §  1209,  p. 
■;  §  1212,  p.  711;  §  1230,  p.  732;  § 
:4,  p.  734;  §  1236,  p.  734;  §  1241,  p. 

Dudley  &  Co.,   Morrow  v. 


12c 


-1976 


TABLE  OF  CASES. 


iDuffy,  In  re,  §  113,  p.  xuo,  ^  x±o,  p 
§  1022,  p.  570;  §  1041,  p.  592;  § 
p.  601;  §  1052,  p.  604;  §  1055.  n 
§   1066,  p.   608;   §  1098 


p.  108;  §  118,  p.  110; 

.^..     -     -""-    '^   1048, 

,   P-   604; 

;,  p.  623;  §   1099, 

-   "   1397,  p.   825; 


•p.   624;   §   1134,  p.   646 

§   1497,  p.   895. 
Duggett  v.  Emerson,  §  636,  p.  377 
Duguid,    In    re,   §    51,   p.*6''-    '^    ""^ ' 


§  1047,  p. 


595. 
Dunavant,  In  re,  §  788,  p.  463;  §  998, 
556;  §  1140,  p.  671;  §  1368,  p.  ""- 
1885,  p.  1178;  §  1885,  p.  1179; 
p.  1185. 


795; 


;  §  1896, 


P- 


p.    ±±oo. 

Dunbar  z\  Dunbar,  §  641,  p.  382;  §  65 

p.   391;  §   670,  p.  406;   §  683,  p.  414; 

705,  p.  424;  §  2731,  p.  1611;  §  2736, 

1613. 
Duncan,  In  re,  §  1117,  p.  639;  §  1372,  p. 

801;  §  1377,  p.  803;  §  1807,  p.  1101;  § 

1807,  p.   1105;  §   1807,  p.  1106;   §  1898, 

p.  1187;  §  1996,  p.  1235. 
Duncan   v.    Ferguson-McKinney   Co.,   § 

1038,  p.  592;  §   1041,  p.  592;  §  1047,  p. 

598;  §   1110,  p.   634.    ' 
Duncan  v.  Landis,  §  135,  p.  119;  §  410, 

p.   266;   §  559,  p.  339;   §  857,  p.  491;  § 

1351,  p.  790;  §  1360,  p.  793;  §  2864,  p. 

1679;  §  2881,  p.   1690;   §   2894,  p.   1699. 
Dundas,  In  re,  §  1303,  p.  765. 
Dunkerson,  In  re,  §  758,  p.  450. 
Dunn  v.  Cans,  §  1421,  p.  843. 
Dunn    Hardware    Co.,    In   re,   §    595,    p. 

356;    §    715,    p.    429;    §    1228,    p.    727;    § 

1241,  p.  736. 
Dunnigan  Bros.,  In  re,  §  51,  p.  63. 
Dunnigan  v.  Stevens,  §  611,  p.  363. 
Duplan  Silk  Co.  v.   Spencer,  §  1144,  p. 

675;  §  1150,  p.  678;  §  1251,  p.  740. 
Duplan  Silk  Co.,  Spencers  v. 
Duplex  Radiator  Co.,  In  re,  §  35,  p.  54; 

§  35,  p.  55;  §  168,  p.  142;  §  170,  p.  143; 

§  216,  p.  174. 
Dupree,   In   re,   §   188,   p.   154;   §   284, 

205;   §   1375,   p.   803;   §   1454,   p. 

28n,    p.    1645 


P- 


86c 


ZSll,     p.      lO'iO. 

Durack  v.  Wilson,  §  1216,  p.  719. 

r^urham,  In  re,  §  1022,  p.  570;  §  1024,  p. 
572;  §  1032,  p.  580;  §  1035.  p.  587;  § 
1035,  p.  589;  §  1041,  p.  592;  §  1100,  p. 
624;  §  1107,  p.  633;  §  1199,  p.  697;  § 
1223,  p.  725;  §  1314,  p.  771;  §  1319,  p. 


774;  §  1447,  p.  855;  §  1494,  p.  892;  § 
1504,  p.  900;  §  1698,  p.  1048;  §  1704,  p. 
1051. 

Durham  Paper  Co.  v.  Seaboard  Knit- 
ting Mills,  §  222,  p.  176;  §  224,  p.  178. 

Durham  v.   Wick,   §   1206,  p.   699. 

T^.,^,ro.^     ^.      f^ ■,-^U^',a      S     1COO      ^      -I  nnc 


Duryea 
Dusar 


,  P.   699 
Guthrie,   §    1632,   p. 


1006. 


V.  Alurgatroyd,  §  636,  p.  377 

Dushane  v.  Beal,  §  935,  p.  524 


Dutcher    v.    Wright,    §    188,    p.    154;    § 

1375,  p.  803;  §  1399,  p.  826;  §  1454,  p. 

863. 
Du   Vivier   v.    Gallice,   §    796,    p.    465;    § 

810,  p.  471. 
Dvorak,   In  re,  §  489,  p.  312;   §  2431,  p. 

1469;  §  2776,  p.  1627. 
Dwyer,   In   re,   §   300,   p.   216;    §   301,   p. 

216;  §  442,  p.'283. 
Dyer  v.  Isham,  §  2716,  p.  1606. 
Dyer,    Muhlenberg   County  v. 
Dyke  Bros.,  Chauncey  r. 
Eades,  In  re,  §  2469,  p.  1493;  §  2549,  p. 

1536;  §  2550,  p.   1537;  §-2635,  p.   1571. 
Eagles  &  Crisp,  In  re,  §  455,  p.   302;  § 

572,  p.  347;  §  575,  p.  348;  §  576,  p.  349; 

§   584,  p.   351;   §  590,  p.  353;  §  632,   p. 

375;  §  767,  p.  455;  §  768,  p.  456;  §  862, 

p.  496;  §  864,  p.   496;   §   866,  p.   497;  § 

871,  p.  498;   §  2233,  p.  1366. 
Eames,  Ex  parte,  §  1626,  p.  994;  §  1630, 

p.  998;  §  1631,  p.  1003. 
Earle    Ore   Sampling   Co.,    Chisholm  v. 
Easley,  In  re,  §  1464,  p.  871;  §  1479,  p. 

882. 
Eason,  Claflin  Dry  Goods  Co.  v. 
Eason,    First    Xat'l    Bk.    r. 
Easterbrook,    Delta    Nat'l    Bk.    v. 
Eastern  Commission  &  Importing  Co., 

In  re,  §   359,  p.   240;  §  1450,  p.  860;  § 

1514,  p.  903;  §  1524,  p.  906;  §  1524,  p. 

907;  §  1524,  p.  908;  §  1901,  p.  1188;  § 

1909,  p.  1191;  §  1913,  p.  1193. 

"""'"-'-    In  re,  §  878,  p.  502;  §   882,  p. 
?7,  p.  507;  §  887,  p.  508. 
re,  §  2520,  p.  1518;  §  253c 


Eas 


to 


Ea 
1 

Eau 
76 
10 

Ebe 


tlack.  In  re, 
'04;  §  887 


u,   s  ^^-tx,  p.  1529;  §   2543,  p.   1532. 
Claire    Nat'l    Bk.    v.    Jackman,    § 


p.  456 
76;  §  3026, 


1769, 


rt. 


770,  p.  456; 
p.  1749. 
In  re,  §  1405,  p.  832;  §  1413,  p. 


TABLE  OF  CASES. 


Economical  Printing  Co.,  In  re,  §  1209, 
p.  706;  §  1209,  p.  707;  §  1212,  p.  710; 
§  1230,  p.  732. 

Edelman,  In  re,  §  124,  p.  112;  §  130,  p. 
114;    §   132,   p.    117;   §   179,   p.    150. 

Edelstein  v.  U.  S.,  §  29,  p.  45;  §  29,  p. 
46;  §  46,  p.  59;  §  243,  p.  187;  §  244,  p. 
187;  §  245,  p.  188;  §  437,  p.  279;  §  450, 
p.  296;  §  450,  p.  297;  §  1556,  p.  931;  § 
1558,   p.   933;   §   2527,   p.    1524;    §  -2864^ 


1977 


p.  1679. 
Edes,  In  re,  §  17,  p.  32;  §  20,  p.  37;  §  22, 

p.   38;   §  26,  p.   40;   §   1932,   p.   1208;    § 

1942,  p.   1212;  §  1948,  p.  1214;   §   1948, 

p.  1215. 
Edinburg    Coal    Co.    v.    Humphreys,    § 

397,  p.  259. 
Edmondson  v.   Hyde,   §   1061,  p.   606;   § 

1061,  p.  607. 
Edmunds,  Page  v. 
Edson,    In   re,   §   783,   p.   462;    §    794,   p. 

465. 
Edw.   G.    Milbury   Co.,    In   re,   §    150,   p. 

132;  §  151,  p.   132.    . 
Edwards,  Plate  Glass  Co.  z'. 
Egan  State  Bk.  v.   Rice,  §.  1258,  p.  742; 

§   1494,  p.   891;  §   1494,  p.  892. 
Eggert,  In  re,  §  1395,  p.  822;  §  1395,  p. 

823;   §   1396,   p.   825;   §   1398,   p.   826;   § 

1399,  p.  827;  §  1402,  p.  830;  §  1403 

831;  §  1407,  p.  834;  §  1409,  p 

1410.  p.   836. 
Ehle,    In   re,   §   970,    p.   543. 
Eidemiller,  In  re,  §  51,  p.  63. 
Eisenberg,   In   re,   §   54,   p.   64;   §   96,   p. 

93;   §  2354,  p.   1428;  §  2401,  p.   1452. 
Elder,  In  re,   §  603,  p.  359;  §  603,  p.  360. 
Electric    Corp'n   v.    Worden,   §    1421,   p. 

843. 
Eliowich,  In  re,  §  1817,  p.  1114;  §  1879, 

p.  .1167. 
Elk  Park  Min.  &  Mill   Co.,  In  re,  §  82, 

p.    81;   §   93,   p.    87. 
Elliott,  Bank  of  Commerce  v. 
Elliott,  Bush  V. 
Elliott,  In  re,  §  2663,  p.  1585. 
Elliott    V.    Toeppner,    §    176,    p.    148;    § 


830;  §  1403,  p. 
.  836; 


ioeppner,  §  its,  p.  148;  § 
;65;  §  410,  p.  266;  §  2864,  p. 
2881,  p.  1690;  §  2894,  p.  1699; 
D.  1700;  §  2942,  p. 
lys  Saddlery  &  Lea 
§  360,  p.  242;  §  1917,  p.  1194. 


406,    p.    265;    §    410,   p.    '^ 

1679;   §  2881,  p.  1690;  §  ^oa^t,  p.  i 

s    9SQ.1     r^     1700;    §    2942,    p.    1719. 


§    2894,    p.    itvv;    §    ^i,  ^.«,    ^.    ^.^„. 
Ellis  V.  Hays  Saddlery  &  Leather  Co 


Ellis,  In  re,  §  235,  p.  183;  §  651,  p.  393; 

§  672,  p.  409;  §  1079,  p.  612;  §  1081,  p. 

613;   §   1082,   p.   613;    §   2888,   p.   1696. 
Ellis   V.   Krulewitch,   §   1855,   p.    1'154;   § 

2839,  p.   1659;  §   2859,  p.   1669;   §  2886, 

p.  1695;  §  2938,  p.  1716. 
Ellison,   Gans  v. 
Ellithorpe,  In  re,  §  1022,  p.  570;  §  1041, 

p.   592;   §   1047,  p.   597. 
Ells,  In  re,  §   640,  p.  381;  §«652,  p.   393; 

§   653,  p.   396;   §   656,  p.   399;   §   659,   p. 

402;  §  665,  p.  405;  §  982,  p.  548;  §  983, 

p.  549;   §  989,  p.  552;   §  990,  p.   552;   § 

991,  p.   552. 
Elm  Brew.  Co.,  In  re,  §  1325,  p.  776. 
Elmira   Steel   Co.,   In   re,   §   18,   p.  34;   § 

29,    p.    45;    §    30,   p.    46;   §   31,   p.    52;    ^ 

33,  p.  54;  §  35,  p.  55;  §  85,  p.  84;  §  141, 

p.   123;   §  294,  p.  213;  §   330,  p.   226;   § 

427,  p.  275;  §  437,  p.  279;  §  437,  p.  281; 

S     IflPf^      n      '^'7'^-     S     lllfi      r.      fi-^Q-     S     1117 


427,  p.  275;  §  437,  p.  279;  §  437,  p.  281; 

§  1025,  p.  575;  §  1116,  p.  639;  §  1117, 

p.  639;  §  1144,  p.  673;  §  1212,  p.  710; 

§   1363,  p.  793. 
Elmore  v.  Symonds,  §  993,  p 
Elred,  In  re,  §  2628,  p.   1567. 
Elsasser,  In  re,  §  1179,  p.  69C 


p.  553. 
1179,  p.  690;  §  11 


691. 
Elsbree  v.  Burt,  §  1510,  p.  902;  §  2742,  p. 

1616. 
Emerson,  Duggett  v. 


merson,  Duggett  v. 

mery  v.  Canal  National  Bank,  §  2258, 

p.   1383. 
Empire  Metallic  Bedstead  Co.,  In  re,  § 

150,  p.  130;  §  150,  p.  131;  §  150,  p.  132; 

§   166,  p.   140. 
Empire    Rubber    Mfg.    Co.,    Blooming- 
dale  Z'. 
Emrich,    In    re,   §   967,   p.    542;   §   968,    p. 

542;    §    960,    p.    542;    §    1115.    p.    637;    § 

1696,  p.  1046;  §  1698,  p.  1048;  §  1698,  p. 

1049;  §  1807,  p.  1107;  §  1820,  p.  1118; 

§  1885,  p.  1179. 
Emslie,  In  re,  §  1144,  p.  673;  §  1154,  p. 

680;  §  1155,  p.  681;  §  1212,  p.  710;  § 

1437,  p.  850;  §  1797,  p.  1092;  §  1798,  p. 

1098;  §  1805,  p.  1100;  §  1807,  p.  1105; 

§  1810,  p.  1109;  §  1813,  p.  1112;  §  1885, 

p.  1177;  §  1885,  p.  1178;  §  1901,  p. 

1189;  §  1907,  p.  1191. 
Endelman,  Skillen  v. 
Endl,  In  re,  §  1800,  p.  1099. 


1978 


TABLE  OF  CASES. 


En 


igineering  &  Construction  Co.,  In  re, 
§  500,  p.   320;   §   522,  p.  324. 

5,  p. 


X!<iigiiieeriiig   csl  x^uiisuruuLiuii   v^u., 

§  500,  p.   320;   §   522,  p.  324. 
Engle,   In  re,  §   1120,  p.   640;   §   11 

642;   §   1126,  p,   642;   §    1134,   p.   646;   § 

1373,  p.  802;  §  1451,  p.  860;  §  1452,  p. 

861;  §  1453,  p.  862;  §  1459,  p.  865,  § 

1459,  p.  866;  §  1466,  p.  872;  §  1914,  p. 

1193;  §  2695,  p.  1598;  §  2712,  p.  1605. 
English,  In  re,  §  1335,  p.  782;  §  1451,  p. 

860;  §  1453,  p.  863;  §  1456,  p.  864;  § 

1582,  p.  950;  §  1586,  p.  961;  §  1590,  p. 

963;  §  2276,  p.  1392. 
English  V.   Key,  §  655,  p.  399. 
English  V.   Ross,  §  1212,  p.  710;  §  1379, 

p.  804;  §  1381,  p.  808;  §  1395,  p.  823; 

§  1396,  p.  824;  §  1398,  p.   826;   §   1401, 

p.   829;   §   1401,  p.   830. 
Eppstein   7'.    Wilson,    §    1214,    p.    715;    § 

1230,  p.  732. 
Epstein,  In  re,  §  1169,  p.  687;  §  1843,  p. 

1141;   §    1S50,  p.  1148;  §  1851,  p.   1151; 

§  1879,  p.  1166;  §  2115,  p.  1303;  §  2117, 

p.  1305. 
Equitable  Life  Assurance  Soc,  Clark  v. 
Equitable  Loan  &  Security  Co.  v.  Moss, 

§  932,  p.  524. 
Equitable  Trust   Co.,   Reed  v. 
Erie   Lumber  Co.,  In  re,  §   382,  p.  251; 

§  385,  p.  254; §  388,  p.  255; §  389,  p.  255; 

§  1993,  p.  1234;  §  1996,  p.  1235;  §  2054, 

p.    1276;    §    2054,    p.    1277;    §    2064,    p. 

1282;  §     2070,  p.  1284;  §  2075,  p.  1286; 

§  2104,  p.  1300;  §  2109,  p.  1302;  §  2186, 

p.   1344;   §   2202,  p.   1353. 
Erie   R.   R.  Co.  v.  Dial,  §  1882,  p.  1168; 

§  1883,  p.  1169;  §  1883,  p.  1171;  §  1883, 

p.    1172;    §    1884,    p.    1174;    §    1884,    p. 

1177. 
Erlanger,   People   v. 
Erlanger,  Tarante,  ex  rel.  z'. 
Ervin,  In  re,  §  2243,  p.   1371. 
Ervin,    Wallerstein   v. 
Ervin,  Wollerstein  v. 
Eschwege  &  Cohn,  In  re,  §  2065,  p.  1283; 

§   2093,   p.    1295. 
Estes,   Buckingham  v. 
Ethridge    Furn.    Co.,    In    re,    §    384,    p. 

253;    §    571,    p.    346;    §    571,    p.    347;    § 

1602,  p.  967;  §  1603,  p.  972;  §  1604,  p. 

975;  §  1625,  p.  989;  §  1626,  p.  990;  § 

1628,  p.  994. 


Ethier,  In  re,  §  1950,  p.  1215;  §  1952,  p. 

1216;  §  1953,  p.  1217;  §  1954,  p.  1217. 
Euclid  National  Bank  z\    Union  Trust 

Co.,  §  2255,  p.  1375;  §  2256,  p.  1376;  § 

2257,  p.  1377;  §  2936,  p.  1716. 
Evans,  In  re,  §  1095,  p.  619;  §  2014,  p. 

1251;  §  2045,  p.  1267;  §  2059,  p.  1280; 

^  2073,  p.  1285. 

vans  v.   Rounsaville,  §   1086,  p.   615;   § 

1586,  p.  961;  §  2668,  p.  1588;  §  2673,  p. 

1590. 
Evans,   Smith  z'. 
Evans     v.     Staalle,     §     973,     p.     546;     § 

1125,  p.  642;  §  1216,  p.  719;   §  1216,  p. 

720;   §   1216,   p.   722;    §    1466,   p.    872;   § 

1718,  p.  1060;  §  1790,  p.  1083;  §  1814, 


Ev 


1590. 


p.    iLi~,    8    ^oi,i,    p.    loyu. 
Everleth,   In  re,   §   1047,  p.   597. 
Ewald    &    Brainard,    In    re,    §    1222,    p. 

724;    §    1222,    p.    725;    §    2220,    p.    1362. 
Ewing,  In  re,  §  257,  p.  192. 
Exchange,   Clayton  z\ 
Exch.   Bk.,  Lockwood  z\ 
Export   &   Commi'ssion    Co.,   Kahn   z'. 
Export  Storage  Co.,  Bush  v. 
Export  Storage  Co.,  Lov( 
Eyster  z\  Gaff,  §  1582,  p. 

960;  §  1832,  p.  1126. 
Fabel-,  Dravo  z'. 
Fagan,  In  re,  §  716,  p.  429;  §  723,  p. 

§  726,  p.  437. 
Fahy,    In    re,    §    435,    p.    278;    §    2424,    p. 

1465;  §  2427,  p.  1466;  §  2427.  p.  1467; 

S  2442.  n.  1477:  8  2479.  n.  1496. 


Export  Storage  Co.,  Love 

""        ^    "'    "   --so  r,  949;  §  1586,  p. 


436; 


Fairbanks,  Thompson  v. 

Falconer,  In  re,  §   1022,  p.   570;   §   1053, 

p.   604;   §   1057,  p.   605;  §   1066,  p.  608; 

§   1069,   p.  609;  §  1095,   p.  619;   §   109." 

n     fi?>1  •    S    1007     r.      ROo 


§   1069,   p.  V....,,   s   .„. 
p.  621;  §  1097,  p.  62^ 


Fallon,  In  re,  §  450,  p.  296. 
Falls    City    Shirt    M'fg    Co..    In    re.    § 
1154,    p.    680;    §    1159,    p.    683;    §    1160, 


1154,    p.    oou;    §    ij..3y,    p.    ooa;    g    j.iou, 
p.   683;   §   1163,  p.   685;   §   1208,  p.   705; 
6,    p.    1344;    §    2195,    p.    1347;    § 


705; 
,    ..  7;    § 

1353;   §  2204, 


§    2186,    p  ,    ^ 

2202,  p.   1353;  §   2200,  p 

p.  1356;  §  2205,  p.  1357. 
Falter  z\  Reinhard,  §   887,  p.   505. 
Farjicon,   Bloch  z'. 
Farley,   Cox  z'. 
Farley  &  Co.,  In  re,  §  59,  p.  65;  §  64,  p 

69;  §  65,  p.  71;  §  289,  p.  209. 


table;  oe"  cases. 


1979 


Farmers'   Bank  v.   Carr,  §   17,  p.   32;   § 

1273,  p.  751;  §  1314,  p.  771;  §  1326,  p. 

777;    §   1503,   p.   899;   §  1504,  p.   899. 
Farmers'    Bank  of   Edgfield  v.   Carr,   § 

1500,  p.  896. 
Farmers'  Bk.,  Long  v. 
Farmer,   In  re,  §   630,   p.   374;   §   788,  p. 

463;  §   1193,  p.  696. 
Farmers'    &    Merchants'    Bk.    v.    Akron 

Mach.    Co.,    §    794,    p.    464;    §    802,    p. 

468. 
Farnum,  In  re,  §  2258,  p.  1383. 
Farrell,  T.  &  J.,  In  re,  §  104,  p.  104. 
Farrin  v.   Crawford,  §  132,  p.  115. 
Farwell,  Donaldson  v. 
Fechter  v.   Postel,  §  2785,  p.  1630. 
Fehling  v.    Goings,  §  1156,  p.  682;  § 

1161,  p.  684. 
Feigenbaum,  In  re,  §  2437,  p.  1472;  § 

2437,  p.  1474;  §  2476,  p.  1495;  §  2531, 

p.  1525;  §  2597,  p.  1554;  §  2665,  p. 

1586;  §  2680,  p.  1594. 
Feist,  Bauman  v. 
Feldser,  In  re,  §  1822,  p.  1119;  §  1836, 

p.  1129;  §  1842,  p.  1138;  §  1849,  p. 

1146;  §  1850,  p.  1147. 
Feldstein,  In  re,  §  1558,  p.  933;  §  1558, 

p.  934;  §  2482,  p.  1501;  §  2544,  p. 
.  1532;  §  2544,  p.  1533;  §  2546,  p.  1534; 

§  2548,  p.  1534;  §  2549,  p.  1535. 
Fellerath,  In  re,  §  1429,  p.  847;  §  1459, 

p.  866;  §  1464,  p.  871;  §  1474,  p.  877; 

§  1602,  p.  967;  §  1603,  p.  972;  §  1604, 

p.  975;  §  1611,  p.  978. 


Fell 


ellerman.  In  re,  §  1527,  p.  914;  §  1568, 

p.  942;  §  1859,  p.  1157;  §  2330,  p.  1414; 

§  2331,  p.  1416. 
Fellows  V.    Freudenthal,  §  24,  p.  39;  § 

2011,  p.  1249;  §  2469,  p.  1492;  §  2511, 

p.  1511;  §  2511,  p.  1512;  §  2541,  p. 

1530;  §  2625,  p.  1566;  §  2626,  p.  1566; 

§  2637,  p.  1571;  §  2639,  p.  1572;  § 

2660.  p.  1579. 
Felson,  In  re,  §  1819,  p.  1115;  §  1849, 

p.  1146;  §  1850,  p.  1146;  §  2016,  p. 

19^q-  S  9017  T^   19e;Q-  S  9ni  S   r.  -\OKA- 


1146;  §  1850,  p.  1146;  §  2016,  p. 
1253;  §  2017,  p.  1253;  §  2018,  p.  1254; 
§  2045,  p.  1266;  §  ^n^*;  r,  19K7.  s 
onso  «->  i9en-  S  9nR 


§  2045,  p.  1266;  §  2045,  p.  1267;  § 
2059,  p.  1280;  §  2060,  p.  1281;  §  2074, 
p.  1285;  §  2085,  p.  1289. 

Felter,  In  re,  §  844,  p.  484. 

Fender,  Osborn  v. 

Fenigold,  McNulty  v. 


Ferguson,  In  re,  §  135,  p.  118;  §  143,  p. 

125;  §  235,  p.  183;  §  *333,  p.  227. 
Ferguson-McKinney    Co.,    Davidson   v. 
Ferguson-McKinney    Co.,    Duncan   v. 
Ferris,   In   re,   §   2635,   p.   1570;   §   2639, 

p.  1572;  §  2651,  p.  1576. 
Fetterman,  In  re,  §  477,  p.  309. 
Feuerlicht,  In  re,  §  1387,  p.  819. 
Fidelity  &  Deposit  Co.,  Nixon  v. 
Fielding,  In  re,  §  2103,  p.  1299. 
Fields    V.    Karter,    §    2509,    p.    1510;    § 

2522,  p.  1520. 
Field  V.  U.  S.,  §  2317,  p.  1410;  §  2316,  p. 

1410;  §  2326,  p.  1412. 
Fife,  In  re,  §  464,  p.  304;  §  472,  p.  306; 

§  704,  p.  424;  §  2760,  p.  1622. 
Filer,   In   re,  §   33,  p.  54;   §  104,  p.   104; 

§  636,  p.  377;  §  710,  p.  427. 
Findlay  Bros.,   In  re,  §  1613,  p.  980;   § 

1665,  p.  1031. 
Finkelstein,    In    re,    §    1850,-  p.    1146;    § 

2480,  p.   1497;   §  2o01,  p.   1507;  §   2636, 

p.  1571. 
Findlay,   In  re,  §   584,  p.   351;   §   587,   p. 

353;  §  590,  p.  353. 
Finley  v.    Poor,   §    755,   p.    447;    §    1024, 

p.  574;  §  1024,  p.  575;  §  1095,  p.  620. 
Finnegan  v.  Hall,  §  704,  p.  424;  §  2739, 

p.   1614;   §   2760,  p.   1622. 
Fire  Lloyds  Underwriters,  In  re,  §  94, 

p.   89. 
First  National  Bank,  Buckingham  v. 
First    National     Bk.     of    Holdredge    v. 

Johnson,    §    1238,    p.    735;    §    1370,    p. 

798. 
First    National    Bank    v.    Penna.    Trust 

Co.,   §    1314,   p.    770;    §   1370,   p.    797. 
First  National  Bk.  v.   Staake,  §  401,  p. 

262;    §    1207,    p.    700;    §    1447,    p.    856; 

§  1462,  p.   868;  §  1463,  p.   871;   §   1489, 

p.  886;  §  1618,  p.  984;  §  1714,  p.  1057; 

§  1896,  p.  1185;   §  2018,  p.  1256. 
First    Nat'l    Bk.   v.   Aultman,    Miller    & 

Co.,    §    780,    p.    461;    §    2154,    p.    1330; 

§  2156,  p.   1332. 
First   Nat'l   Bk.   v.    Connett,   §    1232,    p. 

733;  §  1383,  p.  811. 
First  Nat'l  Bk.  v.  Eason,  §  753,  p.  447; 

§   1520,   p.   904. 
First  Nat'l  Bk.  v.  Ice  Co.,  §  83,  p.  82; 

§  91,  p.  87;  §  94,  p.  90;  §  215,  p.  174; 

§  234,  p.  183;  §  1353,  p.  791. 


1980 


TABLE  OF  CASES. 


First  Nat'l  Bk.  v.  Johnson,  §  1379,  p. 
804. 

First  Nat'l  Bk.  v.  Klug,  §  30,  p.  48; 
§  3016,  p.  1745;  §  3017,  p.  1745;  § 
3018,  p.   1746;  §  3020,  p.  1747: 


764, 


3021, 


p.  1747;  §  3025,  p.  1749 
First  Nat'l  Bk.  v.  Lasater,  §  935,  p.  524; 

§  1019,  p.  568. 
First  Nat'l  Bk.  of  Belle  Fourche,  In  re, 

§   29,   p.   45;   §   29,   p.   46;   §   30,   p.   49; 

§   30,   p.    51;    §   84,   p.    84;    §   90,   p.    86; 

§    94,    p.    91;    §    261,   p.    195;    §    268,    p. 

198;    §    269,    p.    200;    §    324,    p.    225;    § 

325,    p.    225;    §    437,    p.    279;    §    437,    p. 

280;   §  437,  p.   281;   §   858,   p.   491. 
First    Nat'l    Bk.    of    Canton,    In    re,    § 

1140,  p.  669;  §  2874,  p.  1686;  §  2902,  p. 

1703;   §   2912,   p.   1707. 
First  National  Bk.  of  Denver  v.  Klug, 

§  2864,  p.  1680;  §  2865,  p.   1682. 
First    National    Bank   of    ]\Iiles    City   v. 

State  National  Bank,  §  2241,  p.  1371. 
Wet  M^t'i  Bk.  V.  State  Bk.,  §   .'^63.  n 
858,    p.    492;    §    2245,    p. 
p.  1696;  §   2979,  p.   1732, 


Diate   i\a[iuiiai    DaiiK., 
First  Nat'l  Bk.  v.   State   Bk.,   §   563,  p. 
340;    §    858,    p.    492;    §    2245,    p.    1372; 
§  2887,  p.  1696;  §   2979,  p.   1732. 


Fishblate    Clothing    Co.,    In    re,    §    233, 

p.  182. 
Fisher,   Allgair  z'. 
Fisher   &   Co.,    In    re,   §   532,   p.   331;    § 

5 


isher   &   Co.,    In    re,    §    532,   p. 

870,    p.    498;    §    874,    p.    500;    § 

542;   §    1041,   p.    593;   §   1047,  p. 

1048,  p.  600;  §  1066,  p.  608;  §  1069, 

609;  §   1115,  p.  637;  §  1941,  p.   1211 

1945,  p.   1214;   §   1961,  p.  1221;  §  2141, 

p.    1319;    §    2142,    p.    1321;    §    2144,    p. 

1321;  §  2152,  p.  1329;  §  2160,  p.   1334; 

§  2161,  p.  1334;  §  2162,  p.  1334;  §  2348, 

p.  1425. 
Fisher  v.  Cushman,  §  961,  p.  537;  §  967, 

p.  542;  §   1115,  p.  636;   §  1115,  p.   637; 

§  2873,  p.  1686;  §  2879,  p.  1689;  §  2911, 

p.  1705;  §  2916,  p.  1709;  §  2918,  p. 

1709;  §  2928,  p.  1715;  §  2938,  p.  1717. 
Fisher,  Turner  v. 
Fisher  v.    Zollinger,  §  1371,  p.  800;  § 

1373,  p.  802;  §  1384,  p.  813. 
Fitchard,  In  re,  §  1280,  p.  757;  §  2508, 

p.  1510;  §  2511,  p.  1511;  §  2511,  p. 

1512;  §  2516,  p.  1515;  §  2522,  p.  1523; 

§  2639,  p.  1572. 
Fitch  V.    Richardson,  §  756,  p.  449;  § 


iu-±,  p.   454;  §    1188,  p.   694;   §   1679, 

1034;   §  1698,  p.   1049. 
Fite    V.    Fite,    §    683,    p.    415;    §    2756, 

1620. 
Fithian,  Hastings  v. 
Fixen    &    Co.,    In    re,    §    385,    p.    254 

"93,  p.  257;  §  1277, 


P- 


§ 


393,  p.  257;  §  1277,  p.  755;  §  1527,  p. 
914;  §  1529,  p.  914;  §  1533, , p.  916; 
§  1537,  p.  918;  §  1543,  p.  919;  §  1545, 
p.  922;  §  1546,  p.  922;  §  1547,  p.  925; 
§  1548,  p.  926;  §  1550,  p.  926;  §  1551, 
p.  927;  §  1565,  p.  940;  §  1573,  p.  943; 
§  1717,  p.  1059. 


Fl 


^  anagan,  In  re,  §  303,  p.  217;  §  1047, 

*  p.  598. 

Flanders,  In  re,  §  1228,  p.  727;  §  1228, 

p.  730;  §  2703,  p.  1602;  §  2710,  p.  1604. 
Fleischer,  In  re,  §  1529,  p.  914;  §  1543, 

p.  919. 
Fleishman,  In  re,  §  2469,  p.  1492;  § 

2582,  p.  1549. 
Fletcher,  In  re,  §  823,  p.  477;  §  1025,  p. 

575;  §  1025,  p.  576;  §  2008,  ] 

§  2045,  p.  1267;  §  2C 

p.  1279;  §  2071,  p. 

ick.  In  re,  §  1387, 


Fl 


re,  8  0.40,  p.  tr<,  s  •'-"'^"J)  P- 
^,^,  5  .^~5,  p.  576;  §  2008,  p.  1246; 
§  2045,  p.  1267;  §  2056,  p;  1279;  §  2057, 
p.  1279;  §  2071,  p.  1285. 


p.  819;  §  1388,  p. 
819;  §  2169,  p.  1337;  §  2178,  p.  1341. 
Flick,  Stearns  v. 
Flicklinger  v.   Nat'l  Bk.,  §  82,  p. 

95      p      ^'''     ^     '>Qfi1       '^      17'>fi-     S     9C 


81;   § 


Fl 


lickhnger  v.  Nat'l   Bk.,  §   82,  p.   81;  ^ 

95,   p.   92;    §    2961,   p.   1726;    §    2961,   p. 

1726;  §  2968,  p.  1729;  §  2977,  p.  1731. 

lint   Hill   Stone   &   Cont'n   Co.,   In   re, 

§  123,  p.   Ill;   §   129,  p.  113;   §  248,  p. 

189;-§  257,  p.  192;  §  257,  p.  193. 
Florcken,  In  re,  §  377,  p.  248;  §  380,  p. 

251;  §  529,  p.  330. 
Floyd,  In  re,  §  2691,  p.  1597. 
Floyd,  Crawford  &  Co.,  In  re,  §  804,  p. 

470;  §  2783,  p.  1628;  §  2785,  p.  1630; 

§  2787,  p.  1631;  §  2788,  p.  1632. 
Fly,  In  re,  §  1025.  p.  575. 
Flynn  &  Co.,  In  re,  §  1652,  p.  1020;  § 

1676,  p.  1034;  §  1692,  p.  1043;  §  2141, 

p.  1319;  §  2142,  p.  1321;  §  2365,  p. 

1434. 
Foerst,  In  re,  §  1547,  p.  922. 
Folb,  In  re,  §  223,  p.  177;  §  1378,  p.  803. 
Foley,  In  re,  §  1353,  p.  791. 
Foote,  In  re,  §  2261,  p.  "'^«': 
Forbes  v.   Howe,  §  1370 


p.  798. 


p.  1385. 

p.  796;  §  1370, 


TABLE  OF  CASES. 


1981 


Forbes,  In  re,  §  17,  p.  33;  §  59,  p.  66: 
§  60,  p.  67;  §  61,  p.  67;  §  64,  p.  69 
§  64,  p.  70;  §  66,  p.  71;  §  73,  p.  77: 
§  74,  p.  78;  §  102,  p.  103;  §  164,  p.  139, 
§  171,  p.  145;  §  408,  p.  265;  §  1896,  p. 
1185;   §   1974,  p.  1228;  §   1992,  p.   1233. 

Force,  In  re,  §  972,  p.  545;  §  993,  p.  553; 
§  2141,  p.  1319;  §  2147,  p.  1324;  § 
2147,  p.  1325;  §  2149,  p.  1327;  §  2281, 
p.  1396. 

Foreman,  Burleigh  v. 

Foreman  v.  Burleigh,  §  2827,  p.  1653; 
§  2827,  p.   1654;  §  2857,  p.  1G68. 

Agency,  Johnston  z 


Forsyth  Mercantile  .^^^.,^j,  j^,,..^ 
Forsyth  v.  Wehmeyer,  §   2747,  p.   1617. 
Forth,  In  re,  §  2634,  p.  1570;  §  2861,  p. 

1670. 
Forth  Nat'l  Bk.,  Swarts  v. 
Fortunate,    In    re,    §    2330,    p.    1414;    § 

2696,  p.  1599;   §  2700,  p.   1601;   §   2702, 

p.    1601;    §    2702,   p.    1602. 
Fortune,   In   re,   §   1485,   p.   884;   §    1486, 

p.  885. 
Fort   Wayne    EL    Corp.,    In   re,    §    1331, 

p.   780. 
Foss,  In  re,  §  798,  p.  467;  §  973,  p.  543; 

§    1751,   p.   1072;   §   2851,   p.    1664. 
Foster,   In   re,   §   104,   p.    104;    §    114,   p. 

109;    §    1485,    p.    884;    §    1486,    p.    885; 

§  1749,  p.   1071. 
Foster  r.  Ingles,  §  2147,  p.  1324. 
Foster  z>.  Rhodes,  §  993,  p.  553. 
Foundry  Co.  z'.  Foundry  Co.,  §  1705,  p. 

1051. 
Foundry  &  Machine  Co.,  In  re,  §  1144, 

p.  675;   §  1147,  p.   677;   §   1214,  p.   715; 

§  1698,  p.  1048;  §  1780,  p.  1079;  §  1813, 

p.  1111;  §  1814,  p.  1113;  §  1964,  p. 

1223;  §  1965,  p.  1223;  §  1969,  p.  1225; 

§  1975,  p.  1228;  §  1980,  p.  1229. 
Fowle,  Blasdel  v 


JIasdel  V. 

In  re,  §  102,  p.  102;  §  1047, 

1565.  o.  940:  S  1696.  o.  1045: 


Fowler,  m  re,  §  lu-^,   p.  lu:^;  § 

596;  §  1565,  p.  940;  §  1696,  p.  1045: 
9,  p.  1050;  §  1701,  p.  1051. 


P- 


1699,  p.  1050;  §  1701,  p.  1051. 
Fowler  z:   Jenks,  §  870,  p.  498;  §  949 
26;  §  996,  p.  555;  §  1113,  p.  636 


526;  §  996,  p 
1127,  p 
1507. 


,  P- 


642;  §  1216,  p.  720;  §  2500,  p. 


Fox,  In  re,  §  2345,  p.  1424;  §  2365.  p. 

■  "  1434;  §  2391,  p.  1445 

J393,    p.    14"^ 

2397, 


1434;  §  2366,  p.  1434;  §  2391,  p.  14- 
§  2391,  p.  1446;  §  2393,  p.  1446; 
2394,  p.  1446;  §  2396,  p.  1449;  8  "?■' 
p.  1449. 


Fox,  Roche 
Foxhever  v 
§  1007 


V. 

V.    Order 

„ ,   p.   560. 

Fraizer,    In 


-i^rancis 
251 


of   the   Red   Cross, 

§    19,    p.    36;    §    1212, 
i-ziz,  p.  713;   §   1241, 
In  re,   §   346,   p.   234; 


re, 


712;   §  1212,  p.  713;   §   1241,  p.  736 


381,   p. 


Franciscus,  Wetstein  v. 
Francis- Valentine   Co.,   In  re,   §  400,  p. 
262;    §    693,   p.    420;    §    1429, 
451,  p.  860;  §  1474,  p.  877;  i 


p.    847;    § 
1485,  p. 


1401,  p.  »ou;  s  i4V-i,  p.  »r/;  §   i-tso,  p. 

884;  §   1486,  p.  885;  §   1714,  p.  1057;  § 

1816,   p.    1113;   §    1827,   p.    1123. 
Frank  v.  Dickey,  §  2049,  p.  1273;  §  2051, 

p.    1274;    §    2066,    p.    1283;    §    2067,    p. 

1283;   §  2068,  p.   1283;   §  2068,  p.  1284. 
Frank,    In'  re,   §    574,    p.    348;    §   2472,   p. 

1494;   §   2663,   p.   1585. 
Frank  v.   Mercantile   Xat'l    Bk.,   §   1173, 

824;    § 


P 
Frank   v. 


usliner,    §    1396, 
1738,  p.  1069. 


Ml 


P- 


3001, 


1115;     § 
§   2650, 


Frank  v.  Vollkommer,   §   1684,  p.   1036; 

§  1687,  p.  1038;  §  1813,  "p.  1111;  § 
_    p.  1738. 

Frank,  Vollkommer  v. 
Frankfort,    In    re,    §    1819,    p. 
1850,  p.   1147;   §  1851,  p.   1149 
p.    1575. 
Franklin,  Barker  v. 
Franklin  Coal   Co.,  Morss  v. 
Franklin,  In  re,  §  773,  p.  459;  §  1154,  p. 
680;    §    1162,    p.    685;    §    1241,    p.    736; 
§   1428,  p.   846;   §  1507,  p.  901;   §  1514, 
p.  903;  §  1524,  p.  907;  §  1797,  p.  1093; 
§    1798,    p.    1098;    §    1899,    p.    1187;    § 
1913,  p.  1193. 

'ranklin    Lumber    Co.,    In    re,    §    1241, 
p.  736. 

'ranklin    Syndicate,    In    re,    §    1545,    p. 
fi22;  §   1558,  p.  933;  §   1559,  p.   936. 
nks.  In  re,  §  1476,  p.  878;  §  1479,  p. 
=  ■■  •    §    1481,    p.    883. 
ner  V.  McDonald.  §  98,  p.  95. 
zier  v.  Southern  Loan  &  Trust  Co., 
1224,  p.  725;   §  1455,  p.  863;   §  1582, 
951;  §  1582,  p.  955;  §  1593,  p.  963;  § 
■52,  p.  1072;   §  1807,  p.  1104;   §  1885, 
1178. 

r.  In  re,  §  2356,  p.  1430;   §  2358,  p. 
l;  §  2364,  p.  1434;  §  2369,  p.  1435; 
796,  p.  1637. 


F 


Fra 


881; 


raziei 


F 
Frji 

§ 

P- 

17 

P- 
Frea 
143 
§2^ 


1982 


TABLE  OF  CASES. 


Freche,   In   re,   §   2760,  p.   1621. 
Fredenburg,   In  re,  §   1573,  p.  943. 
Freel,  Hoyt  v. 

Freeman  v.  Howe,  §  1797,  p.  1092. 
Freeman,  In  re,  §  930,  p.  523;   §  970,  p. 

543;  §  1780,  p.  1079;  §  1798,  p.  1098;  § 

1875,  p.  1164;  §  2608,  p.   1559. 
French  v.  Smith,  §  1687,  p.  1039;  §1741, 

p.  1070. 
Freudenthal,  Tellows  v. 
Freund,  In  re,  §  2488,  p.   1503;   §  2489, 

p.    1504;    §    2511,    p.    1511;    §    2522,    p. 

1521;   §  2522,  p.  1522;   §  2522,  p.   1523; 

§    2535,    p.    1526;    §    2541,    p.    1531;    § 

2794,  p.  1634;  §  2794,  p.  1635. 
Frey,  In  re,  §  2608,  p.  1559. 
Frey  v.  Torrey,  §  2784,  p.  1629. 
Frice,    In    re,    §   2454,   p.    1486;    §   2460, 

p.  1488;  §  2461,  p.  1488;  §  2595,  p. 1553; 

§  2596,  p.  1553;  §  2603,  p.  1556;  §  2603, 

p.  1557;  §  2606,  p.  1558. 
Friche,  In  re,  §  2754,  p.  1620. 
Frick,   In  re,  §  1993,  p.  1234;  §  1996,  p. 

1235;  §  2045,  p.  1267;  §  2049,  p.  1273; 

§  2186,  p.  1344. 
Friedman,   Davidson  v. 
Friedman,  In  re,  §  620,  p.  367;  §  623,  p. 

368;  §  765,  p.  454;  §  766,  p.  455;  §  1429, 

p.  847;   §  1457,  p.  865;   §   1460,  p.   867; 

§  1463,  p.  869;  §   1464,  p.   871;  §   1819, 

p.    1115;    §    1842,    p.    1138;    §    1844,    p. 

1141;  §  1848,  p.  1145;  §  1850,  p.  1147. 
Friedman  v.  Vorchofsky,  §  1494,  p.  891. 
PViedrich,  In  re,  §  1024,  p.  572;  §  1047, 

p.    595;    §    1048,    p.    599;    §    1072^,    P- 

611;   §   1073,   p.   611;    §   1079,   p.   612;    § 

1112,  p.  635. 
Friend,    In   re,    §    2349,    p.    1426;    §    2410, 

p.    1454;    §    2411,    p.    1454;    §    2864,    p. 

1681;  §  2887,  p.  1696;  §  2896,  p.   1701; 

§  2998,  p.  1737;  §  2999,  p.  1737. 
Friend,  Moss  &  Morris,  In  re,  §   2898, 

p.   1701. 
Frischberg,  In  re,  §  30,  p.  49;  §  311.  p. 

220;  §  314,  p.  221;  §  419,  p.  269;  §  419, 

p.   270;   §  423,  p.   273. 
Fritz,  In  re,  §  469,  p.  305. 
Froeder,  In  re,  §  2488,  p.  1503. 
Fry  V.  Pennsylvania  Trust  Co.,  §  1303, 

p.  765;  §  1309,  p.  767;  §  1397,  p.  825. 
Ft.    Wayne    Electric    Corp.,    In    re,    § 

2103,  p.  1299. 


Fuller  V.  Jameson,  §  1122,  p.   641. 
Fuller  V.   N.   Y.   Fire   Ins.    Co.,   §    1122, 

p.  641. 
Fulton  Club,  In  re,  §  94.  p.  88. 
Funk,   In  re,  §  54,  p.  64;   §  96,  p.  93. 
Funkenstein,  In  re,  §  882,  p.  504. 
Furniture   Co.,   In  re,   §    1212,   p.   712;   § 

1222,  p.   724;  §  1222.  p.  725. 
Furth   V.   Stahl,   §   1314,   p.   772;   §    1319, 

p.   774;   §  1504,  p.   900;   §  1582,  p.  953; 

§   1582,  p.  956;  §  1586,  p.  961;   §   1809, 

p.    1109;    §    1813,    p.    1112;    §    2096,    p. 

1296. 
Gaff,  Eyster  v. 
Gage  V.  Bell,  §  26,  p.  40;  §  26,  p.  42;  § 

202,  p;  165;  §  208,  p.  171;  §  235,  p.  184; 

§   259,  p.  194;  §  259,  p.   195;   §   333,  p. 

227. 
Gailey,  In  re,  §  2541,  p.  1528. 
Gainsburg,  In  re,  §  2449,  p.  1486. 
Galbraith  Admr.,  Osman  z\ 
Gallagher,  In  re,  §  1337,  p.  783;  §  1369, 

p.   795. 
Gallice,  Du  Vivier  v. 
Gait,    In   re,   §    1140,   p.    668;    §   1140,   p. 

669;   §    1228,   p.   727;   §   1228,   p.   730;   § 

1241,   p.   736. 
Gammon,  In  re,  §  2511,  p.  1511;  §  2511, 

p.    1512;    §    2521,    p.    1519;    §    2541,    p. 

1529. 
Gans,  Dunn  v. 
Gans  V.  Ellison,  §  1296,  p.  761;  §  1416, 

p.   839;  §   1418,  p.   840;   §  1421,  p.   844j 

§  1427,  p.  846. 
Gansevoort  Bk.,  Wright  v. 
Gansevoort,    Wright    v. 
Gany,  Marco,  In  re,  §   1879,  p.  1165. 
Garcewich,  In  re,  §  1138,  p.  664;  §  1144, 

p.  674;   §   1209,   p.   707;   §   1238,  p.  727; 

§   1242,  p.  737;   §   1245,  p.  738;   §  1263, 

p.  744. 
Garden,    In   re,   §    1032,   p.    579;    §    1034, 

p.   585. 
Gardner  v.  Cook,  §  1485,  p.  884;  §  I486,' 

p.    885. 
Gardner,    In    re,    §   970.    p.    543;    §    1047, 

p.  595;  §  2103,  p.   1299. 
Garlington.   Blease   v. 
Garlington,  In  re,  §  671.  p.  407;  §  672,  p. 

407. 
Garman,   In  re,  §  239,  p.  185. 


table;  of  cases. 


1983 


Garneau,  In  re,  §  30,  p.  47;  §  31,  p.  52; 

§  33,  p.  53;  §  196,  p.  160;  §  414,  p.  268; 

§    432,    p.    277;    §    435,    p.    278;    §    436, 

p.  279. 
Garner,    In   re,    §    1034,   p.    586;    §    1216, 

p.   721. 
Garrett,  American  File  Co.  v. 
Garrett,  Aleriwether  v. 
Garrison,  In  re,  §  2485,  p.  1503;  §  2549, 

p.    1536;    §    2635,    p.    1571;    §    2637,    p. 

1571;   §  2640,  p.   1572. 
Garside,   Insley  v. 
Gaskill,   In  re,   '^ 

p.    1172; 

1246. 
Gasser,   In   re,   §   584,  p.   351 

1486. 


,  „  1882,  p.  1170;  §  1883, 
1884,  p.  1177;  §  2010,  p. 


2450,  p. 


1486. 

Gay,  In  re,  §  289,  p.  208. 

Gaylord,  In  re,  §  636,  p.  378;  §  804,  p. 
470;  §  967,  p.  540;  §  968,  p.  542;  § 
1218,  p.  722;  §  1313,  p.  769;  §  1555,  p. 
930;  §  1557,  p.  933;  §  1839,  p.  1133; 
§  2464,  p.  1489;  §  2469,  p.  1493;  §  2c 
p.  1509;  §  2635,  p.  1570;  §  2639, 
1572;  §  2641,  p.  1573;  §  2642,  p.  157 
§  2652,  p.  1576;  §  27""  -  """"  "  """ 


p.  1629. 


P- 

O  . 

83,  p.  1628;  §  2785, 


azley  v.   Williams,  § 
p.  551-  s  ie«=c  -  11 


Gazl 


987,  p.  550;  §  988, 
p.  551;  §  1885,  p.  1181. 
Gebhard,  In  re,  §  671,  p. 


p.  407. 


Gee  V.   Gee,  §  2785,  p.   1629. 

Geiser,   In  re,  §   1479,  p.   881;   §  1827,  p. 

1122;  §  1836,  p.  1129;  §  1856,  p.  1155; 

§  2330,  p.  1414;  §  2334,  p.   1417. 
Geister,   In   re,   §   2689,   p.   1596;   §   2699, 

p.    1600. 
General  Metals  Co.,  In  re,  §  297,  p.  214. 
George,   In   re,  §  2659,  p.   1578. 
Georgia   Handle   Co.,   In   re,   §   1154,   p. 

680;  §  1161,  p.  684. 
Gerdes,  In  re,  §  1582,  p.  953;  §  1965,  p. 

1223;  §  1980,  p.  1229. 


Germ.  Am.  Bk.,  Burkhardt  v. 

Germ.   Ins.   Bk.,   Cunningham  v. 

Gerry,  In  re,  §  1963,  p.  1223;  §  1986, 
p.  1230;  §  1987,  p.  1232;  §  2148,  p. 
1327. 

Gerson.  In  re,  §  627,  p.  372;  §  627,  p. 
373;  §  643,  p.  383;  §  645,  p.  387;  §  672, 
p.  409;  §  672,  p.  410;  §  1160,  p.  683; 
§  2014,  p.  1250;  §  2035,  p.  1262;  §  2103, 
p.  1299;  §  2]04,  p.  1300;  §  2179,  p. 1341; 


§  2203,  p.  1354;  §  2204,  p.  1356;  §  2206, 

p.  1358;  §  2257,  p.  1377;  §  2262,  p.  1386; 

§    2273,    p.    1391;    §    2731,    p.    1611;    § 

2741,   p.   1615. 
Gerstel.   In   re.   §   1819,   p.   1115;   §   1843, 

p.    1141;    §    1850,    p.    1148;    §    1856,    p. 

1154. 
Gesas,   In  re,  §   1314,  p.   771;   §   1506,   p. 

901. 
Gettinger,    National    Bank   v. 
Gettysburg  Nat'l   Bank,   Keith  v. 
Ghiglione,    In    re,    §    348,    p.    235;    §    352, 

p.  236;  §  417,  p.  269;  §  418,  p.  269. 
Gibbs,  In  re,,  §  1971,  p.  1226. 
Gibson,   In   re,   §   787,   p.   463. 
Giddings  v.  Dodd,  §  131,  p.  115. 
Gift,    In   re,   §    2553,   p.    1539;    §    2583,   p. 

1549;  §   2584,  p.   1550;  §   2586,  p.   1551; 

§    2596,    p.    1554;    §    2613,    p.    1563;    § 

2614,  p.   1563;   §   2615,   p.   1564. 
Gilbert,    In   re,   §.129,   p.   113;   §   132,   p. 

115;    §    132,    p.    116;    §    132,    p.    117;    § 

150,  p.   130;  §  1543,  p.  919. 
Gilblom  &  King,  In  re,  §  1614,  p.  981. 
Gillette,   In   re,   §    104,   p.   104;   §   114,   p. 

109;    §    171,    p.    146;    §    198,    p.    163;    § 

198,    p.    164;    §    200,    p.    164;    §    233,    p. 

182;    §    237,    p.    185;    §    321,    p.    223;    § 

1219,   p.   723;   §    2269,   p.    1387;    §   2271, 

p.  1390. 
Gillette  &  Prentice,  In  re,  §  233,  p.  182. 
Gilroy   &   Bloomfield,   In   re,   §   1842,   p. 

1137;    §    1844,   p.    1141. 
Ginsburg,  In  re,  §  2603,  p.  1557;  §  2608, 

p.  1558;  §  2608,  p.  1560. 
Girard    Glazed    Kid    Co.,    In    re,    §    185, 

p.    153;    §    233,    p.    183;    §    859,    p.    492; 

§  1368,  p.  794;  §  2.220,  p.  1361;  §  2226, 

p.  1363;  §  2990,  p.  1735. 
Githens  v.  Shiffler,  §  106,  p.  105;  §  109, 

p.    106;    §    113,    p.    108;    §    118,    p.    110; 

§  1134,  p.  646;  §  1397,  p.  825;  §  1497, 

p.  895. 
Gladding,  Co.  B.  H.,  In  re,  §  1614,  p. 

981;  §  2166,  p.  1335;  §  2168,    '""" 


p.  1336. 

Glass,  In  re,  §  2415,  p.  1459;  §  2430,  p. 
1468;  §  2430,  p.  1469;  §  2467,  p.  1490; 


§  2583,  p.  1549;  §  2584,  p.  1550;  § 

2586,  p.  1551;  §  2588,  p.  1551;  § 

p.  1551;  §  2591,  p.  1552;  §  26] 


590, 


1563;  §  2616,  p.  1564 


1984 


TABLE  OF  CASES. 


Glassner,  Snyder  &  Co.,  In  re,  §  1558, 
p.  933;  §  1558,  p.  934;  §  1852,  p.  1152. 


p.  933;  §  1558,  p.  934;  §  iHdZ,  p.  115:^. 

Gleason  v.  Smith  Perkins  Co.,  §  261,  p. 

261,  p.  196;  §  266,  p.  197;  §  270, 


ledbun  V.  omun  jrerKins  ^o.,  §  Zbl, 
195;  §  261,  p.  196;  §  266,  p.  197;  §  2' 
p.  200;   §   302,  p.   217;   §   311,  p.   220. 

Glenn,   Hawkins  v. 

Glenny  v.   Langdon,  §   1718,  p.   1060. 

Globe  Cycle  Works,  In  re,  §  359,  p. 
240;  §  361,  p.  243;  §  366,  p.  244;  §  528, 
p.  330;  §  1473,  p.  877;  8  loni  ^  iisq- 
§  igno    r.    lion 

Globe 


1901,  p.  1188; 


§  1902,  p.  1190. 
rlobe    Ins.    Co.   z'.    Cleveland    Ins.    Co. 
§   149,  p.   129;  §  149,  p.  130. 

Glover  Grocery  Co.  v.  Dorn,  §  2351,  p. 
1427. 

Glucklich,   Boyd  v. 

Godfrey,   Morse  'v. 

Coding  v.  Rosenthal,  §  643,  p.  383;  § 
644,  p.  386;  §   645,  p.  387. 

Godshalk  v.  Sterling,  §  2544,  p.  1532; 
§  2585,  p.  1551;  §  2603,  p.  1557;  § 
2608,  p.  1558;  §  2608.  p.  1560;  §  2608, 
p.  1561;  §  2612,  p.  1562. 

Godwin,  In  re,  §  2387,  p.  1443. 

Goembel,  Paper  Co.  v. 

Goerlitz,   Mueller  v. 

Goings,  Tehling  z'. 

Goldberg  Bros.,  In  re,  §  359,  "p.  241 
§  366,  p.  244;  §  369,  p.  245;  §  545 
p.  333;  §  693,  p.  420;  §  1485,  p.  884 
§  1490,  p.  888;  §  1481,  p.  883;  §  1482, 
p.  883;  §  1619,  p.  984;  §  1695,  p.  1045; 
§  1901,  p.  1188;  §  1902,  p.  1189;  § 
1919,  p.  1196;  §  1920,  p.  1196;  §  2016, 
p.  1253;  §  2197,  p.  1349;  §  2197,  p. 
1350. 

Goldfarb,  In  re,  §  1819,  p.  1115;  §  1842, 
p.  1139;  §  1843,  p.  1140;  §  1845,  p. 
1144;  §  1850,  p.  1147;  §  1859,  p.  1157. 

Goldman,  In  re,  §  1140,  p.  671;  §  1197, 
p.  697;  §  2303,  p.  1402. 

Goldman  v.  Smith,  §  121,  p.  Ill;  §  3 
222;  §  332,  p.  226;  §  896,  p.  5: 
96,  p.  512;  §  992,  p.  553;  S  11 


S  66}i,   p.  -d-db;   §  sue,  p. 
§  896,  p.  512;  §  992,  p.  553;  § 
p.  683;  §  1266,  p.  747;  §  1268,  p. 
00.  o.  763:  S  1303.  o.  765. 


17, 
11; 
60, 

748; 


p.  ooo,  s  i^oo,  p.  fii,  8  izoo,  p 
§  1300,  p.  763;  §  1303,  p.  765. 
Goldsmith.  In  re,  §  1893,  p.  11 
1894,  p.  1184:  §  1970,  p.  1226;  § 
p.  1226;  §  1975,  p.  1228;  §  19bo,  p. 
1230;  §  1995,  p.  1234;  §  2206,  p.  1358; 
§  2530,  p.  1525;  §  2540,  p.  1528;  §2644, 
p.  1574. 


84;    § 
§   1971, 
1985,    p. 


Goldstein,  In  re,  §  659,  p.  401;  §  663,  p. 

404;  §   1160,  p.  683;   §   2204,  p.   1356. 
Goldstein,  U.   S.  v. 
Goldville    M'f'g    Co.,    In    re,    §    1993,    p. 

1234;   §  1996,  p.  1235;  §   2011,  p.  1248; 

§  2014,  p.  1251;  §  2045,  p.  1266;  §  2047, 

p.    1268;    §    2048,    p.    1271;    §    2049,    p. 

1273;  §  2069,  p.  1284;  §  2075,  p.   1286; 

§  2078,  p.  1287;  §  2083,  p.  1289;  §  2084, 

p.   1289;    §    2103,   p.    1299. 
Gomila    V.    Wilcombe,    §    1387,    p.    818; 

§    2205,    p.    1357. 
Good,    In    re,    §    2881,    p.    1690;    §    2887, 

p.    1696;    §    2893,    p.    1699;    §    2981,    p. 

1733;  §  2997,  p.  1737;  §  2999,  p.  1737. 
Goodale,    In    re,    §    435,    p.    278;    §    450, 


p.  296;   § 


ale.    In    re,    §    435,    p.    278;    §    450, 
J96;   §  450,  p.   297;  §  2477,  p.   1495; 
„      !508,    p.    1510;    §    2522,    p.    1521;    § 
2603,  p.  1557. 
Goodall  v.  Tuttle,  §  1041. 
Goodbehere  "'    t^^'-"    ■«   r 


p.   593. 


988,  p.   551, 


Goodfellow,    In   re,   §    2482,   p.    1500. 

Goodhart,   McCullough  v. 

Goodhile,  In   re,  §   1395,  p.   823;   §  14 

r\0.      n      .9^1  •     S     1107      r,      8 


>oodhile.  In  re,  §  1395,  p.  823;  §  1402, 
p.  830;  §  1403,  p.  831;  §  1407,  p.  835; 
§  1409,  p.  836;  §  2556,  p.  1540;  §  2558, 
p.  1540:  §  2563.  p.  1542;  2625,  p.  1566; 
2642,    p.    1573;    § 


p.    1024;    § 


§    6241,    p.    1573; 

2643,    p.    1574. 
Goodier   z'.    Barnes,    §    1653, 

1686,  p.    1037. 
Goodman    z'.    Brenner,    §    1560,    p.    938; 

§    2890,    p.    1698;    §    2911,    p.    1705;    § 

2922,    p.    1712. 
Goodman    Shoe    Co.,    In    re,    §    795,    p. 

465;  §  976,  p.  547;  §  1185,  p.  693. 
Goodridge,    In    re,    §    1849,    p.    1146;    § 

1851,   p.    1150;   §   2505,   p.   1508. 
Goodykoontz,  Carter  z'. 
Gordon,  In  re,  §  1032,  p.  581;  §  1035,  p. 

587. 
Gordon    z'.    Jennings,    §    2169,    p.    1337; 

§  2176,  p.  1340. 
Gordon,    Schefield   v. 
Gordon   Supply   &   M'f'g   Co.,   In   re,   § 

882,    p.    504;    §    887,    p.    505;    §    887,    p. 

507;   §   1924.   p.    1203;   §   1930,   p.    1206; 

§  2121,  p.  1308. 
Goreley,  Butter  v. 
^    rman.   In  re,  §  426,  p.   274;   §   444,   p. 


Go 


287. 
Gorman  t'.  Wright,  §  758, 


p.  450. 


TABLE  OF  CASES. 


198; 


Gorwood,  In  re,  §  1959,  p.  1220. 
Gosch,  In  re,  §  1140,   p.  667;   §   1140,  p. 

671;    §    1154,    p.    681;    §  'l241,    p.    736; 

§  1876,  p.  1165;  §  1896,  p.  1185. 
Gose,  In  re,  §  987,  p.  550. 
Gottman  z:  Konea,  §  131,  p.  114. 
Gould  c'.   X.   Y.   Life  Ins.   Co.,   §  963.  p. 

538;    §   966,   p.    540;    §    1008,    p.    560;    § 

1108,  p.  561;  §  1012,  p.  562;  §  1012, 

p.  563;  §  1013,  p.  563;  §  1015,  p.  565; 

§   1016,   p.    567. 
Gourdin.    Strain   t'. 
Gove   r.    Morton    Trust    Co.,   §    1140,   p. 

671;    §    1144,    p.    675;    §    1207,    p.    702; 

§  1209,  p.  708;  §  1222,  p.  723;  §  1222, 

p.  724;  §  1230,  p.  732;  §*1239,  p.  735; 

§   1265,  p.   745;  §   1508.   p.   901;   §   1760, 

p.    1074. 
Goyer  z\  Jones,  §  1511,  p.  903. 
Grady.   In  re,   §   1047,  p.   597;   §   2796,   p. 

1637. 
Graff,  In  re,  §  629.  p.  374;  §  804.  p.  470; 

§  .1314,  p.  771;  §  1883,  p.  1169;  §  1883, 

p.    1172;    §    1884,    p.    1173. 
Graff,   Keine  v. 

Graffam   v.   Burgess,   §   1953,   p.    1216. 
Graham,  In  re,  §  1396,  p.  824. 
Graham,  Loan  &  Trust  Co.  v. 
Graham,  Norfolk  &  W.  Ry.  Co.  v. 
Graham  v.   Richardson,  §   1035,  p.   589; 

§    1102,    p.    628;    §    1104,    p.    628. 
Grahs,    In    re,    §    1653,    p.    1024;    §    1676, 

p.  1034;  §  1695,  p.  1044. 
Grand  Lodge,  Burrow  v. 
Grandy    &    Son,    In    re,    §    800,    p.    467; 

§   1150,  p.  679;  §   1370,  p.   798;  §   1372, 

p.   801. 
Granite  City  Bank,  In  re,  §  533,  p.  331; 

§  1215.  p.  718;  §  1705,  p.  1053;  §  1706, 

p.    1054;    §    1797,    p.    1092;    §    1798,    p. 

1098;  §  1807,  p.  1105;  §  1808,  p.  1108; 

§    1809,    p.    1109;    §    1835,    p.    1128;    § 

1885,  p.  1178;  §   1885,  p.  1180;  §   1888, 

p.    1181;    §    1889,    p.    1182;    §    1889,    p. 

1183;  §  1891,  p.  1183;  §  1894,  p.  1184; 

§    1931,    p.    1207;    §    1965,    p.    1223;    § 

1967,  p.  1225;   §   1975,  p.   1228;   §  1977, 

p.    1228;    §    1978,    p.    1228;    §    1979,    p. 

1228;    §    1981,   p.    1229. 
Granite    Quarries   Co.,   In    re,   §   236,   p. 

184. 
Grant,  Allen  v. 


Grant,     In     re,     §     64,     p.     69;     §     132, 

p.  115;   §   882,   p.  504;  §  2449,  p.   1486; 

§  2851,  p.  1663;  §  2851,  p.  1664;  §  2861, 

p.    1672. 
Grant,   Manufacturing   Co.  v. 
Grant,    ]\Iarble    Co.    z\ 
Grant  z:  National  Bank,  §   1407,  p.   834. 
Grant  Shoe  Co.,   In  re,  §  230,  p.   179;  § 

232,    p.    180;    §    630,    p.    374;    §    689,    p. 

417;  §  704,  p.  423;  §  705,  p.  425. 
Grant  Shoe  Co.  v.  Laird  Co.,  §  2894,  p. 

1699. 
Graves,   In  re,   §  2608,  p.  1559. 
Gray,    In   re,   §   1207,   p.   702;   §   1440,   p. 

851;    §    1493,    p.    890;    §    1602,    p.    967; 

§    1603,   p.   971;   §   1604,   p.  975. 
Gray,   James   z'. 
Gray,   Littlefield  z\ 
Gray  v.    Alercantile   Co.,   §   896,   p.   512; 

§    2054,    p.    1277;    §    2103,    p.    1300;    § 

2827,  p.  1654;  §  2828,  p.  1655;  §   2837, 

p.    1657;    §    2899,    p.    1701;    §    2899,    p. 

1702;   §   2907,   p.   1704. 
Gray   v.   Rollo,   §    1175,   p.   689. 
Greater    American    Exposition,    In    re, 

§   1165,  p.  685;   §  1582,  p.  954;   §   1583, 

p.    958;    §    1586,    p.    960;    §    1653,    p. 

1024;  §  1682,  p.  1035;  §  1692,  p.  1043. 
Great  Western  Mfg.  Co.,  In  re,  §  1144, 

p.   674;  §   1209,  p.   707;   §   1214,   p.   717; 

§   1242,  p.  737;   §   1314,   p.   772;  §   1370, 

p.  796;  §  1878,  p.  1165;  §  1987,  p.  1232; 

§    2886,    p.    1695. 
Great  Western  Mineral   &  Mfg.   Co.  v. 

Harris,  §  1709,  p.  1056. 
Greeman.  In  re,  §  928.  p.  523. 
Green,    In   re,    §    1664,    p.    1031;    §    1845, 

p.    1145;    §    1852,    p.    1151;    §    2151,    p. 

1329;  §  2256,  p.  1376;  §  2257,  p.  1381. 
Green,   ]\Ioore  z'. 
Green,    Orcutt    Co.    v. 
Greenberg,    In    re,    §    1848,    p.    1145;    § 

1850,  p.  1146;  §  2521,  p.  1519;   §   2549, 

p.   1535. 
Greene,  In  re.  §  1140,  p.  668;  §   1140,  p. 

670;   §   1247.  p.   739. 
Greenewald,    In    re.    §    2169,    p.    1336;    § 

2159,  p.  1337;   §  2170,  p.   1338;  §  2176, 

p.    1340. 
Greensberg.   In   re.   §   2638.  p.   1571. 
Green  &  Rogers,  In  re,  §  146,  p.  128. 
Gregory  v.  Atkinson,  §  1689,  p.  1040. 


2  Rem  B— 50 


1986 


TAELE  OF  CASES. 


627, 


820, 


Grell,  Baer  v. 

Grensfeld    Bros.    v.    Brownell,    §    1 

p.  993. 
Griffin   V.   Mutual   Life   Ins.    Co.,   § 

p.   476;  §  826,  p.  "479;   §   1640,  p.   1011; 

§    1644,   p.    1012;    §    1649,    p.    1015. 
Grill  V.  Solomon,   §   2716,   p.   1606. 
Grimes  Co.  v.  Malcolm,  §  114,  p.  109. 
Grimes,    In   re,    §   33,   p.    53;    §    1022,   p. 

570;   §   1024,  p.   572;   §   1032,   p.   579;   § 

1038,    p.    592;    §    1044,    p.    594;    §    1047, 

r,      e;Q?;-    S    in4.8     n     .eiQC)  •    8    1079,     n      filO" 


p.  595;  §  1048,  p.  599;  §  1072,  p.  610; 
§  1073,  p.  611;  §  1076,  p.  612;  §  1089, 
p.  616;  §  1093,  p.  618;  §  2025,  p.  1258. 
Grissler,  In  re,  §  1154,  p.  680;  §  1156,  p. 
682;  §  1156,  p.  683;  §  1156,  p.  """•  '^ 


683;  § 


682;  §  1156,  p.  683;  §  1156,  p.  683;  § 

1161,  p.  684;  §  1165,  p.  685;  §  1682,  p. 

1035;  §  1696,  p.  1046;  §  1813,  p.  1111. 

rist.  In  re,  §  465,  p.  305;  §  470,  p.  306; 

§  472,  p.  306;  §  528,  p.  330. 
Griswold  V.  Pratt,  §  1629,  p.  997. 
Grive,   In  re,   §   1150,   p.   680;   §   1681,   p. 


1161 
Gri 


1035. 
Groetzinger,  In 


-..^-,    --  re,  §  1885,  p.  117e 
1885,  p.  1179;  §  2236,  p.  ^"'■"-  '^  """' 


^  ^-ooo,   jj.  x±ii>,   X  /ji^o\j,   p.  136<;  §  .i~3o, 
p.  1369;  §  2937,  p.  1716;  §  2993,  p. 
1736;  §  2996,  p.  1737. 
Grohs,  In  re,  <^  - '  '  --  """'^-  ^^  '-'-  - 


545,    p. 


33J 


-,    ^-    --,    „    544,    p.    332;    »    ^,^, 
„„3;   §   1212,   p.   710;   §   1216,   p.   719; 
1217,  p.  722;   §  1493,  p.  890, 

Gross,  In  re,  §   ^ — ,  ^.  — ,  ^  

2521,  p.  1519;  §  2542,  p.  1531; 
§  2543,  p.  1532;  §  2638,  p.  1571;  §  265' 
p.  1578. 


i:ii7,  p.  i-;i4\   s  i4yd,  p.  »yu. 
iross.  In  re,  §  1070,  p.  609;  §  2520, 

1518;  §  2521,  p.  1519;  §  2542,  p.  15 

§  2543,  p.  1532;  §  2638  -  -"  "^^  •  ^  or 

p.  1578. 
Grossman,  In  re,  §  2521,  p.  1519;  §2541, 

p.,  1529;  §  2660,  p.  1578. 
Groves,  In  re,  §  1022,  p.  570;  §  1041, 

p.  592;  §  1048,  p.  599;  §  1048,  p.  601; 

§  1051,  p.   603;  §   1052,  p.   603;   §  1054, 

p.   604;   §  1092,  p.  617;  §  1578,  p.  945; 
,    §    1950,    p.    1215;    §    1952,    p.    1216;    § 

1954,  p.  1217;  §  1954,  p.  1218;  §  1957, 

p.    1219;    §    2014,    p.    1251;    §    2018,    p. 

1254;  §  2025,  p.  1258;  §  2125,  p.   1309. 
Grubbs-Wiley    Grocery    Co.,    In    re,    § 

801,    p.    468;    §    2169,    p.    1336;    §    2176, 

p.  1340. 
Gruenberg  v.   Trainor,   §   27]  4,   p.   1606; 

§    2715,    p.    1606;    §    2717.    p.    1606;    § 

2722,  p.  1607;   §  2726,  p.  .1608;  §  2727, 

p.  1608;  §  2728,  p.  1608. 
Grunsfeld    Bros.    v.    Brownell,    §    16,    p. 


31;    §   1265,    p.    745;    §    1343, 

1606,   p.   976;    §    1630,   p.   IOOjl,   s    -^"^~. 

p.    1004;    §    1632,    p.    1007;    §    1634,    p. 

1009;  §  1760,  p.  1074;  §  1790,  p.  1083. 
Guarantee  Title  &  Trust  Co.,  Burke  v. 
Guarantj^  Co.,  Boyce  f. 


787;  § 
1632, 
4,  p. 
1083. 

V. 


Gueras  v.  Porter,  §  123 
uichard.  Brown  v. 


iO,  p.  732. 
659,  p.  1578. 


G 

Guild,  In  re,  § 

Gump,  Long  V. 

Gurewitz,  In  re.  §  2171,  p.  1338;  §  2175, 

p.  1340;   §  2176,  p.  1340. 
Guthrie,  Duryea  v. 
Guthrie,   Snj^der  v. 
Gutman  &  Wenk,  In  re,  §  1780,  p.  1079; 

§  1781.,  p.  1080;  §  1782,  p.  1080;  §  1784, 

p.    1081;    §    1807,    p.    1105;    §    1916,    p. 

1194. 
Gutterson,  In  re,  §  1011,  p.  562;  §  1925, 

p.    1203;    §    1959,    p.    1221;    §    3001,    p. 

1738;  §  3002,  p.  1738. 
Gutwillig.   In   re,   §   571,   p.   346;   §   1463, 

p.   871;   §   1602,   p.  967;   §   1603,  p.  973; 

§   1604,  p.  975;   §  1610,  p.  978;   §   1532, 

p.  1006. 
Haack  v.  Theise,  §  477,   p.   309;   §   2761, 

p.    1623;    §    2764,    p.    1624;    §    2765,    p. 

1624;   §  2777,  p.  1627. 
Haas-Barnick  Co.  v.  Poruondo,  §   2278, 


H 


p.    139^. 

aas.  In  re,  §  ,885, 
Haase,   In   re,   §   " 

p.   1548 
Hab 

p.    1296 

129 


p.  504. 
!571,    p.    1544; 


§    2577, 


•egger,  In  re,  §  1134, 


§    2096, 


...„.,  p.  646;  §  2095, 
p.    1296;    §    2097,    p. 

Hackney   v.    First    Nat'l    Bank,    §    1216, 


H 


p.  720. 
ackney 


19,  p. 


Ha 


ackney  v.  Hargreaves  Co.,  § 
36;  §  444,  p.  287;  §  1181,  p.  692;  § 
1182.  p.  692;  §  1284,  p.  758;  §  1303, 
p.  765;  §  1316,  p.  773;  §  1332,  p.  781; 
§  1355,  p.  791;  §  1356,  p.  791;  §  1357, 

).  791;  §  1.395,  p.  822;  §  1401,  p.  829. 

,ckney  v.  Raymond  Bros.  Clarke  Co., 
§  1356,  p.  791;  §  1357,  p.  791;  §  1396, 
p.  823;  §  1396,  p.  824;  §  1398,  p.  826; 
§  1399,  p.  826;  §  1403,  p.  831;  §  1407, 
p.  834;  §  1504,  p.  900;  §  1747,  p.  1071. 
Hadden-Rodee  Co.,  In  re,  §  1696,  p. 
1045;  §  1698,  p.  1048;  §  1701,  p.  1051; 
I       §    1796,    p.    1092;    §    1873,    p.    1163. 


TABLE  OF  CASES. 


1987 


Haensell,   In  re,  §   1020,  p.  569;   §   1643, 

p.    1011;    §    1644,    p.    1012. 
Haesler-Kohloff   Carbon    Co.,    In    re,   § 

417,    p.    269. 
Haff,  In  re,  §  207,  p.  171;  §  208,  p.  171; 

§   210,  p.   172;  §  211,  p.  172;  §   264,   p. 

197;    §    265,    p.    197;,  §    268,    p.    199;    § 

341,    p.    233;    §    346,    p.    234;    §    354,    p. 

237. 
Hahlo  V.  Cohn,  §  899,  p.  516;  §  1641,  p. 

1011;  §   1644,  p.  1012;  §   1722,  p.   1061. 
Hakes,  Off  v. 
Halbert,  In  re,  §  2059,  p.   1280;   §   2117, 

p.    1305. 
Halbert    v.    Pranke,    §    1356,    p.    791;    § 

1744,  p.   1071;  §  1746,  p.   1071;  §   1747, 

p.    1071;    §   1759,   p.    1074. 
Hale   T'. 'Allison,   §   1709,   p.   1056. 
Hale,    Baldwin    v. 
Hale,    Coxe    v. 
Hale,   In   re,   §  59,  p.   65;   §   64,   p.   70;   § 

2422,  p.   1465;  §  2792,  p.   1633;  §   2804, 

p.    1643. 
Hall   Co.,   F.   A.,   In   re,   §   1625,   p.   989; 

§  1628,  p.  995;  §   1629,  p.  996;   §   1630, 

p.  1002;  §  1632,  p.  1007. 
Hall  V.   Cooley,  §   94,   p.   88. 
Hall,    Finnegan   v. 
Hall,    Oil    Well    Supply  'Co.    v. 
Hall,  Wager  v. 

Hall,    Watertown    Carriage    Co.    v. 
Halsell,  In  re,  §  2611,  p.  1562. 
Hamilton,    Carr    v. 
Hamilton   Furniture   &   Carpet   Co.,    In 

re,    §    842,    p.    484;    §    1169,   p.    687;    § 

1879,   p.   1165. 
Hamilton,  In  re,  §  1122,  p.  641;  §  2486, 

p.    1503;    §    2541,    p.    1530;    §    2545,    p. 

1533;  §  2549,  p.  1536;  §  2635,  p.  1571; 

§    2639,    p.    1572;    §    2640,    p.    1572;    § 

2793,    p.    1633. 
Hamilton,    Parmenter    Mfg.     Co.    v. 
Hamilton,     Selkregg    v. 
Hammer,  Swarts  v. 
Hammerstein,   Tyrrel  v. 
Hammond,   Botts  v. 
Hammond,  In  re,  §  1429,  p.  848;  §  1477, 

p.   878;  §  1479,  p.  881;  §  1488,  p.   885; 

§  1653,  p.   1024. 
Hammond,  U.  S.  ex  rel.  Adler  v. 
Hand,   Warehousing  v. 
Hanks,   In  re,  §  1472,  p.   874. 


Hanlin,    Beers   v. 

Hanna  &  Kirk,  In  re,  §  1150,  p.  679. 

Hanover   Xat'l    Bk.  v.    Moyses,   §    2,   p. 

21;  §  3,  p.  21;  §  5,  p.  22;  §  6,  p.  23;  § 

8,  p.  23;   §  9,  p.  25;  §  12,  p.  28;   §   13, 

p.  28;  §  18,  p.  35;  §  19,  p.  37;  §  1023, 

p.   571;  §   1632,  p.   1004. 
Hansen,   In  re,  §   896,   p.   511;   §  995,  p. 

555;  §  2491,  p.  1504;  §  2522,  p.  1522;  § 

2813,    p.    1646;    §    2815,    p.    1648. 
Hanson    v.    Stephens,    §    1439,    p.    850; 

§   1616,  p.  983;  §  1620,. p.  985. 
Happke  and  Doyle  v.  jNIilw.  Xat.  Bk.,  § 

1387,   p.   818. 
Hardie  &  Co.,  In  re,  §   2484,  p.  1502;  § 

2485,  p.  1503;  §  2556,  p.  1540;   §  2563, 

p.    1542;   §    2563,   p.    1543. 
Harding,    Hill    r. 
Hardt  v.  Schuylkill  Plush  &  Silk  Co.,  § 

1429,  p.   848;  §   1460.  p.  867;  §   1468;  p. 

873;    §    1471,    p.    874;    §    1470,    p.    874; 

§    1476,    p.    878;    §    1484,    p.    884. 
Hardware   Co.,   Little  v. 
Hardware    &    Furniture    Co.,    In    re,    § 

286,    p.    206;    §    2032,    p.    1261;    §    2117, 

p.    1305. 
Hare,  In  re,  §  878,  p.  502;  §  894,  p.  ^10; 

§  895,  p.  510. 
Hargardine-]\IcKittrick  Co.  v.   Hudson, 

§  2,  p.  21;  §  630,  p.  374;  §  784,  p.  462; 

§   786,  p.  462;   §   788,  p.  463;   §   791,  p. 

464;  §  2748,  p.  1618;  §  2750,  p.  1618. 
Hargreaves  Co.,  Hackney  v. 
Hark  v.   Allen  Co.,  §  267,  p.  198. 
Hark  Bros.,  In  re,  §  252,  p.  191;  §  255, 

p.  191;  §  257,  p.  192;  §  258,  p.  194; 

§  267,  p.  198;  §  324,  p.  225;  §  1552, 

p.  928;  §  1559,  p.  936;  §  1560,  p.  938; 

§  1561,  p.  938;  §  1574,  p.  944;  §  1852, 

p.  1152. 
Harmon.  In  re,  §  2135,  p.  1318;  §  2183, 

p.  1343. 
Harmon  v.   Jamieson,  §  1486,  p.  885. 
Harold,  Knapp  v. 
Harper,  In  re,  §  138,  p.  122;  §  141,  p. 

124;  §  150,  p.  132;  §  444,  p.  283;  § 

2783.  p.  1628;  §  2784,  p.  1629;  §  2785, 

p.  1630;  §  2786,  p.  1631;  §  2787,  p. 

163]. 
Haiper  f.  Rankin,  §  2783,  p.  1628;  § 

2786,  p.  1631;  §  2787,  p.  1631. 


1988 


TABLE  OF  CASES. 


Harpke,    In   re,   §   1288,   p.    759;    §    131i, 

p.    768. 
Harr,  In  re,  §  17,  p.  33;  §  2462,  p.  1489; 

§    2556,    p.    1540;    §    2557,    p.    1540;    § 

2559,  p.   1541;   §   2634,   p.   1570;   §   2861, 

p.    1670. 
Harrington,  In  re,  §  1048,  p.  598. 
Harrington,    Lawrence    z'. 
Harris,  Great  Western  [Mineral  &  Mfg. 

Co.  z'. 
Harris,  In  re,  §  33,  p.  52;  §  62,  p.  68;  § 

70,  p.  74;  §  963,  p.  538;  §  1116,  p.  639; 

§  llir,  p.  639;  §  1132,  p.  644;  §  1135,  p. 

648;   §   2368,   p.   1435;   §   2252,  p.    1374; 

§    2253,    p.    1374;    §    2365,    p.    1434;    § 

2522,    p.    1520. 
Harris  &  Algor,  In  re,   §  2426,  p.   1466. 
Harrison,    Hanselt  v. 
Harriskamp   v.   Wagon    Co.,   §    2269,    p. 

1387. 
Harson  Co.,  In  re,  §  1303,  p.  765;  §  1615, 

p.    982;    §    2014,    p.    1250. 
Hart    &   Co.,   In   re,   §   2011,   p.    1248;    § 

2044,  p.   1266;   §   2068,  p.   1284;   §  2072, 

p.    1285;    §    2116,    p.    1304;    §    2117,    p. 

1305. 
Ha%t,    [Matthews    v. 
Hart,  Wright  z'. 
Hartman,  In  re,  §  1694,  p.  1044;  §  2237, 

p.    1368;    §    2794,    p.    1635;    §    2796.    p. 

1637;   §  2798,  p.   1641;  §  2800,  p.   1642. 
Hartman  v.  Peters,  §  171,  p.  144. 
Hartsell  &  Son,  In  re,  §  1032,  p.  580;  § 

1091,  p.  617;  §   1104,  p.  631. 
Harvester    Co.    z'.    Lyman,    §    2717,    p. 

1606. 
Harvey.   In  re,   §   1931,  p.   1207;   §   1931, 

p.    1208;    §    1950,    p.    1215;    §    2141.    p. 

1319;  §  2147,  p.   1324;  §   2161,  p.  1334; 

§  2163,  p.  1335;  §  2365,  p.  1434;  §  2366, 

p.  1434;  §  2367,  p.  1435. 
Harvey  v.  Smith,  §  1586,  p.  961. 
Haskin,  In  re,  §  1041,  p.  592;  §  1057,  p. 

605;    §    1089,    p.    616. 
Haskins,  Aiken,  Lambert  &  Co.  v. 
Haslage,  Hoover  v. 
Hassenbusch,  In  re,  §  376,  p.  247. 
Hastings    z'.    Fithian,   §    1200,   p.    698;    § 
1277,  p.  755;  §  1363,  p.  793;  §  1396,  p. 

825. 
Hasting,  In  re,  §  1047,  p.  599. 


Hatch,      In    re,   §    1022,  p.   570;   §   1024, 

p.  1082;  §  2864,  p.  1678. 
Hatch,  In  re,  §  1022,  p.   750;  §   1024,  p. 

572;   §    1029,  p.   578;   §   1032,  p.    579;   § 

1037,  p.  591;  §  1047,  p.  595. 
Hatcher,  In  re,  §  2022,  p.  1257. 
Hatje,  In  re,  §  320,  p.  223;  §  1485,  p. 

884. 
Hauselt  v.   Harrison,  §  1144,  p.  673. 
Hausman,  In  re,  §  1842,  p.  1140;  §  1858, 

p.  1156;  §  2341,  p.  1419. 
Havens  &  Geddes  Co.  z'.  Pierek,  §  1033, 

p.  585;  §  1797,  p.  1093;  §  1873,  p.  1163; 

§  1885,  p.  1178;  §  1892,  p.  1184;  § 

2009,  p.  1246. 
Hawk  z'.  Hawk,  §  648,  p.  389;  §  710,  p. 

427;  §  1117,  p.  639;  §  1140,  p.  671. 
Hawk,  In  re,  §  494,  p.  313;  §  723,  p. 

436;  §  858,  p.  491;  §  2445,  p.  1477;  § 

2812,  p.  1646. 
Hawkins  z'.   Glenn,  §   977,  p.   547. 
Hawkins,  In  re,  §  1896,  p.  1185;  §  1938, 

p.    1210;    §    1948,    p.    1214;    §    1974,    p. 

1228. 
Hawley,  In  re,  §  563,  p.  340;  §  1954,  p. 

1217;  §  1955,  p.   1218;   §   2841,  p.   1661; 

§  2846,  p.  1662. 
Hawthorn,    In    re,    §    1558,    p.    933;    § 

1562,  p.  939.' 
Hayden,  In  re,  §  1547,  p.  925. 
Haydock,  Varnish  Wks.  z'. 
Hayer    v.    Comstock,    §    611,    p.    362;    § 

645,  p.  387;   §  2741,  p.   1615. 
Haynes,  &  Sons,  In  re,  §  1443,  p.  853; 

§    2427,    p.    1467;    §   2479,    p.    1496. 
Hays,    In    re,    §    653,    p.    394;    §    653,    p. 

395;  §  656,  p.  399;  §  660,  p.  402;  §  979, 

p.    548. 
Hays   Saddlery   &  Leather  Co.,   Ellis  v. 
Hays  z'.   Wagner,   §   222.   p.    176;   §   224, 

p.   178;   §  235,  p.   183;  §  235,  p.  184;  § 

236,  p.  184;  §  238,  p.  185;  §  805,  p.  470; 

§    2968,   p.    1729. 
Haynard,    In   re,   §   607,   p.   361;   §   1160, 

p.  683;  §  2204,  p.  1356. 
Hazleton,   In  re,  §   2716,   p.    1606. 
Hazen,  Tomplins  z'. 
Hazle,  Clothing  Co.  z'. 
Head,    Western    Union     Cold     Storage 

Co.  z'. 
Headley,  In  re,  §  758,  p.  450;  §  2220,  p. 

1362. 


TABLE  OF  CASES. 


1989 


Head   &   Smith,    In  re,   §   1047,   p.   596; 
§   1216,   p.   720;   §   1312  """     " 


p.  769;   §   1494, 
"  2271,  p.  1""" 


389; 


687, 


,   p.   281;   §   439,   p. 


p.  891;  §  2254,  p.  1374 

§    2271,   p.    1390. 
Headlej',    Pepperdine    v. 
Heaney,  Marckson  v. 
Heaney,    Alarkson   &   Spalding  v. 
Hearick,  Rex  Buggy  Co.  v. 
Heath,    Doyle   v. 
Heath  v.  Shafifer,  §  1582,  p.  956;  §  1586, 

p.  961;  §  1597,  p.  964;  §  1646,  p.  lOl''- 

§  1653,  p.  1024;  §  1675,  p.  1033;  §168 

p.  1038. 
Heaton,  Marsh  v. 
Hebbart,  In  re,  §   438 

282. 
Heckathorn,    In    re,    §    1140,    p.    669;    § 

1207,  p.  703;  §  1212,  p.  710;  §  1228,  p. 

730. 
Heckman,  In  re;  §  1451,  p."  861;  §  1582, 

p.   949;    §    1593,   p.   964. 
[ee,  In  re,  §  217,  p.  175;  §  333,  p.  227; 

§  2237,  p.  1368. 
Heffron,   In  re,  §  236,  p.  184. 
Heim   v.    Chapman,   §    2716,   p.    1606. 
Heineman,    Livingston    v. 
Heinsfurter,  In  re,  §  636,  p.  378;  §  638. 

p.   379;   §   791,   p.   464;   §    1335,   p.    782; 

§  1443,  p.  853;  §  1880,  p.  1168;  §  2379, 

p.    1440;    §    2382,   p.    1441. 
Helena    Coal    Co.,   McN; 


H 


Helena    Coal    Co.,   McNamara  v. 
Heller   v.   Le   Roy,   §   1586,   p.   96( 
Hellman,    Mayer  v. 
Hemby-Hutchinson   Pub. 

IfiQS      T-.      ind7-    S    1KQS      r. 


^..man,    Mayer  v. 

emby-Hutchinson   Pub.   Co.,   In  re,   § 

1698,  p.   1047;  §  1698,  p.  1048. 
Hemstreet,  In  re,  §  1047,  p.  595;  §  1216, 

p.  721;  §  1569,  p.  942;  §  2186,  p.  1344. 
Henderson,  Henrie  v. 
Henderson,    In    re,    §    1693,    p.    1043;    § 

1700,  p.   1050;   §   1819,  p.  1115;  §  1850, 

p.    1147;    §    1856,    p.    1154;    §    2000,    p. 

1237;   §  2255,  p.  1375;  §  2257,  p.  1377; 

§  2257,  p.  1378;  §  2650,  p.  1575. 
Hendrick,  In  re,  §  2463,  p.  1489;  §  2612 

p.    1563;    §    2613,    p.    1563;    §    2616,    p 


p.     luoo,     Nj     <;ui.o,     y.     xou 
1564;  §  2623,  p.  1565;  §  2624, 


p- 

p.  1565. 


5;  §  2613,  p.  1563;  §  2616 

"15 

Hennequin  v.  CI 


Henne  &  Meyer,  Clark 

Hennequin  v.  Clews,  §  ^,^^,  y.  ^^.j... 
iennis,  In  re,  §  1033,  p.  585;  §  1047, 
p.  599;  §  1150,  p.  679;  §  1883,  p.  1172; 
§   1884,  p.  1177. 


Hennocksburgh,    In    re,    §    636,    p.    377. 
Henrie   r.    Henderson,   §    1693,    p.   1043; 

§   1700,   p.   1050;   §   2000,   p.    1237. 
Henry,   In  re,  §   1047,  p.   597. 
Henry     AlcShane     Mfg.     Co.,     Lowen- 

stein  f. 
Henschel,  In  re,  §  571,  p.  346;  §  571,  p. 

347;  §  572,  p.  347;  §  575,  p.  348;  §  581, 

p.    350;    §    582,   p.    350;    §    583,    p.    350; 

§   584,   p.   351;   §  858,  p.  491;   §   862,  p. 

496;  §  878,  p.  502;  §  879,  p.  503;  §  887, 

p.   505;    §    892,   p.   509;   §   1558,   p.   933; 

§  2435,  p.  1470;  §  2999,  p.   1737. 
Herbold,  In  re,  §  40,  p.  56;  §  288,  p.  208; 

§  1047,  p.  598;  §  1091,  p.  617;  §  2010,  p. 

1246. 
Hercules  Atkins,  Co.,  In  re,  §  80,  p.  80; 

S    151,    p.    132;    §    160,    p.    138;    §    1616, 


p.    982 

--ei  _.-, 

Herman,  In 


Herdic,  In  re,  §  2635,  p.  1571. 


,    _..    re,    §   2508,   p.   1510. 

Hernich,  In  re, 


H 


1005,  p.  558. 


2475, 
P- 


eiiiicii.   III  re,  8   luuo,  p.  o 

errman.  In  re.  §  2439,  p.  1476;  ^  .. 

p.    1495;    §    2508,    p.    1509;    §    2521 

1519;  §  2532,  p.  1526. 

Herron   Co.   z'.    Superior   Court,^  §   1625, 

p.  989;   §   1626,  p.  990;   §  1627,  p.  991; 

§  1628,  p.  994;  §  1630,  p.  1000. 

Hershkowitz,  In  re,  §  1850,  p.  1147;  § 

1855,  p.  1154;  §  2521,  p.  1520;  §  2646, 

p.  1574;  §  2649,  p.  1575. 

Herskovitz,  In  re,  §  1543,  p.  919;  §  2011, 

p.  1248;  §  2117,  p.  1305. 
Herzikoph,  In  re,  §  20,  p.  37;  §  233,  p. 
182;  §  277,  p.  203;  §  282,  p.  204;  §  404, 
p.  263;  §  409,  p.  265. 
ess.  In  re.  §  780,  p.  461;  §  954,  p.  536; 
§  955,  p.  536;  §  956,  p.  536;  §  1140,  p. 
670;  §  1212,  p.  710;  §  1241,  p.  736;  § 
1245,  p.  739;  §  1557,  p.  932;  §  1558,  p. 
""'^;  §  1558,  p.  934;  §  1558,  p.  935; 
559,  p.  936;  §  1560,  p.  938;  §  1562,  p. 
■  oj;  §  1852,  p.  1152. 
sseltine  z'.    Prince,  §  961,  p.  537;  § 
171,  p.  544. 
•itt  z/.   Berlin  Machine  Wks.,  §  1140, 
668;  §  1144,  p.  673;  §  1207,  p.  700; 
L207,  p.  704;  §  1209,  p.  707;  §  1231,  p. 
'33;  §  1243,  p.  738;  §  2864,  p.  1679;  § 
:875,  p.  1687;  §  2884,  p.  1695;  §  2912, 
).  1707;  §  2925,  p.  1713. 


H 


9 
He 


Hew 
P- 

§1 
73 
287 
P 


1990 


TABLE  OF  CASES. 


Heynian,   In  re,  §  571,  p.  346;   §  571,  p. 

347;    §    613,    p.    364;    §    929,    p.    523;    § 

2521,   p.   1520. 
Hibbard  v.  Bailey,  §  676,  p.  412;  §  678, 

p.    413. 
Hibbard  v.   McGill,   §   2242,   p.    1371;    § 

2255,   p.    1375. 
Hickey,  In  re,  §  1392,  p.  820. 
Hicks,  In  re,  J  17,  p.  34;  §  55,  p.  64;  § 

96,   p.    93;    §   98,   p.   95;    §   306,   p.   219; 

§  474,  p.  306;  §  945,  p.   526;  §  2421,  p. 

1465;    §    2694,   p.    1598. 
Hicks  V.   Knost,  §  17,  p.  32;  §  1653,  p. 

1027;   §  1676,  p.  1034;  §  1677,  p.  1034. 
Hicks   V.    Langhorst,    §    1395,    p.    822;    § 

1403,  p.  830;  §  1764,  p.  1075. 
Higgins,  In  re,  §  184,  p.  152;  §  1429,  p. 

847;   §    1457,   p.    865;   §   1464,   p.    871. 
Highland    Boy   v.    Strickley,    §    2921,    p. 

1711. 
Hilberg,   In  re,  §   2141,   p.   1319;  §  2148, 

p.  1327. 
Hilborn,  In  re,  §  2358,  p.  1431. 
Hildebrant,   In  re,  §  638,  p.  379;  §   638, 

p.  381;  §  1880,  p.  1168. 
Hilgers,    Oliver   v. 
Hill  Co.,  In  re,  §  84,  p.  84;  §  90,  p.  86; 

§  94,  p.  90;   §   1180,  p.   691;   §   1296,  p. 

762;   §   1297,  p.   762;   §   1311,  p.   767;   § 

1341,  p.  785;  §  1419,  p.  841;  §  1420,  p. 

842;   §  2985,  p.   1733;   §   2986,   p.   1733; 

§    2986,    p.    1734. 
Hill,    Chattanooga   z\ 
Hill  V.   Harding,  §   1450,  p.   860;  §   1524, 

p.  907;  §  2699,  p.  1600. 
Hill,    In    re,    §    189,    p.    154;    §    1024,    p. 

572;   §   1221,   p.   723;   §   1494,  p.   892;   § 

1499,   p.   895;    §   2505,   p.    1508;   §   2608, 

p.  1559;  §  2635,  p.  1571. 
Hill  V.  Levy,  §  333,  p.  227. 
Hill,  Zeiber  v. 

Hiller  v.  Le  Roy,  §  1592,  p.  963. 
Hillman,  Pullen  v. 
Hills.   In   re,   §   1022,   p.   570;   §    1032,   p. 

578;  §  1034,  p.  585. 
Hilton,    In   re,   §   704,   p.   423;    §    723,   p. 

436;   §   732.   p.   4.39;   §  2691,   p.   1598;    § 

2734,  p.  1613. 
Hinckel  Brew.  Co.,  In  re,  §  653,  p.  394; 


3rew.  Co.,  In  re,  § 
§  656,  p.  399;  §  657,  -  "" 
406;  " 


)56,  p.  399;  §  657,  p.  400;  §  667,  p. 
i;  §  842.  p.  484;  §  2035,  p.  1262;  § 


2103,  p.  1299;  §  2206,  p..  1358;  §  2730, 
p.  1610. 

Hindman,  In  re,  §  1047,  p.  598. 

Hinds  V.  Moore,  §  1652,  p.  1020;  §  1657, 
p.  1029;  §  1694,  p.  1044;  §  1797,  p. 
1093;  §  1800,  p.  1099;  §  1801,  p.  1099; 
§  1802,  p.  1100;  §  2864,  p.  1680;  § 
2873,  p.  1685;  §  2873,  p.  1686;  §  2924, 
p.  1713. 

Hinds,  Moore  v. 

Hines,  In  re,  §  288,  p.  207;  §  348,  p. 
235;  §  352,  p.  237;  §  359,  p.  241;  §  364, 
p.  243;  §  370,  p.  245;  §  751,  p.  446;  § 
754,  p.  447;  §  1303,  p.  765;  §  1328,  p. 
778;  §  1332,  p.  781;  §■  1344,  p.  788;  § 
1347,  p.  788;  §  1351,  p.  790;  §  1364, 
p.  794;  §  1395,  p.  822;  §  1398,  p.  826; 
§  1399,  p.  827;  §  1401,  p.  829;  §  1402, 


Hines,  Zartman  v. 

Hinsdale,  In  re,  §  1209,  p.  707;  §  1241, 

p.  736;  §  1489,  p.  886;  §  1491,  p.  889. 
Hintze,  In  re,  §  435,  p.  278;  §  436,  p. 

279;  §  444,  p.  285. 
Hirose,  In  re,  §  145,  p.  128;  §  222,  p. 

176;  §  1602,  p.  967;  §  1604,  p.  975;  § 

1606,  p.  977. 
Hirsch,  In  re,  §  58,  p.  65;  §  2469,  p. 

1493;  §  2490,  p.  1504;  §  2505,  p.  1508; 

§  2511,  p.  1511;  §  2518,  p.  1517;  § 

2519,  p.  1517;  §  2522,  p.  1522;  §  2533, 

p.  1526;  §  2539,  p.  1528;  §  2541,  p. 

1531;  §  2544,  p.  1532;  §  2583,  p.  1549; 
.  §  2595,  p.  1553;  §  2596,  p. 1553;  §  2602, 

p.  1555;  §  2603,  p.  1556;  §  2603,  p. 

1557;  §  2605,  p.  1558;  §  2608,  p.  1560; 

§  2640,  p.  1572;  §  2647,  p.  1574;  § 

2794,  p.  1634. 
Hirschman,  In  re,  §  636,  p.  377;  §  636, 

p.  378;  §  638,  p.  379;  §  638,  p.  380;  § 

639,  p.  381;  §  705,  p.  424;  §  710,  p. 

427;    §    1880,   p.    1168. 
Hiscock  v.   Mertens,   §   1016,   p.   566;    § 

1016,   p.    567. 
Hiscock  V.  Varick  Bank,  §  756,  p.   449; 

§     759,     p.     450;     §     760,     p.     451;     § 

761,    p.    453;    §    761,    p.    454;    §    1112, 

p.     635;     §    1116,    p.    639;     §    1117,    p. 

639;   §   1129,  p.   643;   §   1140,   p.   668;   § 

1500,   p.    896;    §    1896,    p.    1185. 
Hitchcock,    Counselman   z'. 


table;  of  cases. 


1991 


Hitchcock,  In  re,  §  2041,  p.  1264;  §  2054, 

p.  1276;  §  2082,  p.  1288;  §  2087,  p. 

1291;  §  2090,  p.  1294; 
Hixon,  In  re,  §  2457,  p.  1487;  §  2469,  p. 

1492;  §  2602,  p.  1555;  §  2603,  p.  1556; 

§  2608,  p.  1559;  §  2608,  p.  1560;  §  2613, 

p.  1563;  §  2621,  p.  1564;  §  2635,  p. 

1570. 
Hoadley,  In  re,  §  970,  p 

545;  §  1130,  p.  643. 
Hoadley,  Leicester  v. 
Hoag,  In  re,  §  1047,  p. 

596;   §   1088,  p.  616 


543;  §  972,  p. 

.95;    §   1047,   p. 

680;   § 


Hobbs,  Carter  v. 

Hobbs   &   Co.,   In   re,   §   1154,   p.   680;   § 

1682,  p.  1035;  §  1165,  p.  685;  §  2011,  p. 

1248;   §  2238,  p.   1369. 
Hobbs,  National  Bank  v. 
Hoffman,  In  re,  §  2511,  p.  1512. 
Hofifschlaeger  v.   Young  Nap.,  §  46,  p. 

59;  §  48,  p.  61;  §  50,  p.  62;  §  05,  p.  91; 

§   109,   p.   107;   §   112,   p.   107;   §   112,   p. 

108;  §  207,  p.  171;  §  235,  p.  183;  §  245, 

p.  188;  §  245,  p.  189;  §  252,  p.  191;   § 

257,    p.    194;    §    259,    p.    195;    §    340,    p. 

233;  §  348,  p.  235;  §  373,  p.  246;  §  1189, 

p.  694;  §  1190,  p.  695;  §  2122,  p.  130S; 

§  2127,  p.  1309. 

Hogan.   Thornton   v. 

Holbrook  v.  Coney,  §  1955,  p.  1218. 

Holden,  In  re,  §  1006,  p.  559;  §  1018,  p. 

568;    §   1041,   p.   593;    §   1047,  p.   598. 
Holden   v.    Stratton,    §    1003,   p.    557;    § 

1015,  p.  565;  §  1016,  p.  566;  §  1016,  p. 

567;   §   1022,  p.   570;   §  1041,  p.   592;   § 

1042,  p.  593;  §  1109,  p.  634;  §  2867,  p. 

1683;  §  2881,  p.  1690;  §  2905,  p.   1704; 

§  2906,  p.  1704;  §  2911,  p.  1706;  §  2928, 

p.  1714;  §  2930,  p.  1715. 
Holgate,  In  re,  §  2659,  p.  1578. 
Hollander,  Allen  v. 
Hollenfeltz,  In  re,  §  993,  p.  553;  §  1885, 

p.    1180;    §    1997,    p.    1236;    §    2147,    p. 

1325;   §  2148,  p.   1326;  §  ^2148,  p.  1327. 
Hollenshade,    In   re,   §   2482,   p.   1499,   § 

2508,  p.  1509. 
Holloway,   In  re,   §   1586,  p.  960. 
Holman,   In  re,  §  2448,  p.  1485;  §  2452, 

p.    1486;    §    2457,    p.    1487;    §    2544,    p. 

1532;     §    2544,  p.  1533;  §2549,  p. 1536;  § 

o«no     ,.     i^-«.   .(;    oftna     ^     1559.   §   26O8, 


2603,  p.   1556;  §   2608,  p 


p.    1560;    §    2609,    p.    1561;    §    2618,    p. 

1564;   §  2619,  p.  1564;  §  2635,  p.  1570. 
Holmes,  In  re,  §  1485,  p.  884;  §  1486,  p. 

885;  §  2875,  p.  1687;  §  2883,  p.  1693;  § 

2888,  p.   1696;  §  2923,  p.  1713;  §  2942, 

p.    1720;    §    2993,    p.    1736;    §    2997,    p. 

1736. 
Holstein,  In  re,  §  2521,  p.  1519. 
Holtz,  In  re,  §  2544,  p.  1532. 
Holzworth,  Bower  v. 
Home    Discount    Co.,    In    re,    §    451,    p. 

299;  §  1678,  p.  1034;  §  1857,  p.  1156;  § 

2330,  p.  1414;  §  2333,  p.  1417;   §  2839, 

p.    1658;    §    2839,    p.    1659;    §    2860,    p. 

1669. 
Home    Security    Co.,    In    re,    §    1333,    p. 

781. 
Honea,  Gottman  v. 
Hook,  Cotterell,  S.  P.  v. 
Hooks     V.    Aldridge,    §    158,    p.    135;    § 

1581,   p.  948;   §   1584,   p.  958,   §   1603,  p. 

969;  §  1637,  p.  1010. 
Hooper,  Strause  v. 
Koover  v.   Haslage,   §   1099,   p.   624. 
Hoover,  In  re,  §  1034,  p.  587;  §  1160,  p. 

683;   §   2204,   p.    1356;   §   2813,   p.   1646; 

§  2815,  p.   16^8. 
Hopkins,    In   re,   §    1032,   p.   578;   §   1034, 

p.   585;   §   1034,  p.  586;   §   1089,  p.   616; 

§   1100,  p.   624;   §  1273,  p.  751;   §   1447, 

p.  855;  §  1463,  p.  869. 
Horgan   :'.    Slattery,    In    re,    §    1547,    p. 


924. 


Horner-Gaylord    C. 
nett;    §   399,   p.   261 
800,  p.   467;   §   121 


o.   V.    Miller   &   Ben- 


..,  ^  401,  p.  262;  § 
ouu,  p.  -lui,  s  i.ij6,  p.  720;  §  1495,  p. 
893;  §  1716,  p.  1058;  §  1746,  p.  1071. 
Hornstein,  In  re,  §  233,  p.  182;  §  234,  p. 
183;  §  359,  p.  240;  §  362,  p.  243;  § 
366,  p.  244;  §  368,  p.  244;  §  632,  p.  376; 
§  1472,  p.  876;  §  1901,  p.  1188;  § 
1902,    p.    1189. 

kins  V.  Sanderson,  §  545,  p.  333;  § 
2,  p.  1020;  §  1690,  p.  1042;  §  1695, 
1044;    §    1727,    p.    1064;    §    1755,    p. 


lyu^i,  p.   iisy. 
Horskins  v.  Sanderson,  §  545, 
1652,  p.  1020;  §   1690,  p.  104    ,   „ 

1044;  §  1727,  p.  1064;  §  1755,  p. 
f3;  §  1891,  p.  1183;  §  1912,  p.  1192. 
it,   Roehm  v. 


P 
107 


Hors 

Horton 

Hos 

o 

§ 


norion  v.  Smith,  §  114,  p.  109. 
Hosmer  v.  Tififany,  §   1216,  p.   719. 
Hotel  &  Cafe  Co.,  In  re,  §  141,  p.  123; 
143,  p.  125. 


1992 


TABLE  OF  CASES. 


Houghton,    Ex    parte,    §    653,    p.    396;    §  ! 

653,  p.  398;  §  656,  p.  399;  §  887,  p.  505. 
Housberger,    In    re,    §    1485,    p.    884;    § 

1486,  p.  885. 
House,  In  re,  §  2508,  p.  1510;  §  3511,  p. 

1511;    §   2511,   p.   1512;   §  2511,  p.   1513. 
Houston  V.  Bank,  §  1885,  p.  1181,  §  1965, 

p.    1223. 
Houston,  In  re,  §  464,  p. 
^     72,  p.  306. 

Cole    &    Co.,    In    re, 


i04;  §  469,  p. 
756, 


Cunliff,    §    1154,    p.    680;    § 


Kuddleston,  In  re,  §  20,  p.  37;  §  523, 
327;    §    527,    p.    329;    §    528,    p.    330; 

=  fO      .^      QQO-     S    1  ^eo      f.      OJ.Q-     S     17Q7 


Howard 

p.  450. 
Howard    >.     .    „  ,    -  .    - 

1155,  p.  681;  §  1155,  p.  682;  §  2673,  p. 

1590;  §  2674,  p.  1591. 
Howard,  In  re,  §  801,  p.  468;  §  843,  p. 

484;    §    903,    p.    517;    §    904,    p.    518;    § 

1533,  p.  916;  §  1547,  p.  925;  §  1550,  p. 

926;  §  1563,  p.  939;  §  1573,  p.  943;  § 

1755,  p.   1073;  §   1786,  p.   1081;  §   1881, 

p.  1169;  §  1900,^.  1187. 
Howard  &  Co.,  Lockwood  v. 
Howard  Nat'l  Bk.  Ex  parte,  §  1173,  p. 

688.     ' 
Howard,  Westheimer  r. 
Elowden,  In  re,  §  2469,  p.  1492;  §  2522, 

p.    1520;    §    2541,    p.    1530;    §    2635,    p. 

1571;  §  2638,  p.  1572;  §  2639,  p.  1572. 
Howe,  Forbes  v. 
Howe,  Freeman  r. 
Howe  V.  Noyes,  §  2687,  p.  1596,  §  2707, 

p.  1603;  §  2748,  p.  1617. 
Howe    Security    Co.,    In    re,   §    1280,   p. 

757. 
Howland  v.  Carson,  §  680,  p.  413. 
Howland,  In  re,  §  963,  p.  539;  §  997,  p. 

556;   §   1228,   p.   727;   §   1263.   p.   744;   § 

1489,    p.    886. 
Howley    Dresser    Co.,    In    re,    §    958,   p. 

537. 
Hoy,  In  re,  §  49,  p.  62. 
Hoyt  7'.  Free],  §  1510,  p.  902. 
Hoyt,  In  re,  §  345,  p.  234;  §  877,  p.  5( 

§  909.  p.  519;  §  910,  p.  519;  §  1055, 

604;   §   1074,  p.   612;   §   1089,   p.   616; 

2038.  p.  1263. 
Hoyt   &   :\Iitchcri,   In   re,  §   24.  p.   39; 

517,  p.  323;  §  858.  p.  492;  §  909,  p.  51 

§  910,  p.   519;   §   911,  p.   519;   §  911, 

520;    §    2038,    p.    1248. 
Hubbard,  In  re,  §  683,  p.  414;  §  683, 

415;  §  2758,  p.  1621. 


P 
p.    330;    § 

543,  p.  332;   §  1582,  p.  949;   §   1797,  p. 

1092;  §  1800,  p.  1099;  §  1807,  p.  1101; 

§    1836,    p.    1129;    §    1901,    p.    1188,    § 

1908,  p.   1191;   §   1910,  p.   1191;   §   1918, 

p.    1195. 
Hudson  Clothing  Co.,  In  re,  § 

§  446,  p.  290;  §  2990,  p.  1735. 
Hudson,    Hargardine-McKittrick   Co.  v. 
Hudson  v.  ^Mercantile  National  Bank,  § 

2508,  p.   1509;  §   2510,  p.   1510;   §  2511, 

p.   1511,  §   2601,   p.   1555. 
Hudson    River    W.    P.    Co.,    In 


63,  p.  69; 


501; 

P- 
§ 

39;   § 

9; 

p- 


p- 


1813,  p.   1111 
Huenergardt 


re,    § 

rfuenergardt    v.     Brittain     Dry     Goods 

Co.,  §    1046,  p.   594;   §    1047,   p.   598;   § 

1079,  p.  612;  §   1316,  p.  773. 
Huff,  Johnston  v. 
Huffman,   In  re,  §   1336,  p.  783;   §   1431, 

p.  848;  §  1478,  p.  881. 
Huffman,  Jewett  Bros.  v. 
Hugill,  In  re,  §  1885,  p.  1178;  §  1885,  p. 

1180. 
Hulen,   Martin  v. 
Hull,   In   re,   §    1140,   p.    670;    §   1258,   p. 

741;  §  1258.  p.  742;   §   1326,  p.  777. 
Humbert    Co.,    In   re,    §    425,    p.    273;    § 

425;  p.  274;  §  427,,  p.  275. 
Humphrey   z'.    Tatman,   §    1144,   p.    673; 

§   1236,  p.  734;  §  1236,  p.   735;  §   1237, 

p.  735;  §  1238,  p.  735;  §  1281,  p.  757;  § 


,  p.  735;  §  1281,  p.  757;  § 

1896,  p.  1185. 
Humphrey,    Tatman    r'. 
Humphreys,   Edinburg   Coal   Co.   •;:'. 
Hunt,  In  re,  §  200,  p.  164;  §  277.  p.  203; 

§   1144,  p.   675;  §  1207,  p.  700;  §   1207. 

p.  703;   §   1222,  p.  724;  §  1232,  p.  733; 

§   1369,  p.  795;  §  1370,  p.  797;   §  1370, 

p.   798;   §  1373,  p.   802;   §   1381.  p.   80S; 

§    1.183,   p.    810;   §   1382,  p.   810;   §    1383. 

p.    811. 
Hunt  Z'.  Taylor,  §  644,  p.  384;  §  2741,  p. 

1615. 
Huntley,  Moody  7'. 
Hurlbutt,    Hatch    Co.,    In   re 

426;    §    751,    p.    446;    §  '767, 

967,    p.    540;    §    968.    p. 

637. 
Hurlbutt,   In   re.  §   2235, 


§  707,  p. 
..^i,  p.  i-r><,  5  lui,  p.  455;  § 
540;  §  968.  p.  542;  §  1115,  p. 


p.  1367. 
•ley  V.    Devlin,  §  1688,  p.  1040;  § 


Hurley 
1689,  p 


1040. 


TABLE  OF  CASES. 


1993 


Hurst.  In  re,  §  2369,  p.  1435. 
Hu—   "•    T^—    ^— 


ssey   V.    Dry    Goods     Co.,    §    446,   p. 

291'     S    1343      "^      '?««•    S    1'^J.Q      r.      787-     S 


^v^.,   s   ^343,  p.   786;   §   1343,   p.   787;   § 

1395,  p.  822;  §  1396,  p.  825;  §   1402,  p. 

830;    §   1777,   p.   1078;    §   3009,   p.    1741. 
Hussey   v.    Judson,    §    2687,    p.    1596;    § 

2707,  p.  1603. 
Hussey,    Merrill   v. 
Hussey,    Palmer  v. 
Hussey,   Pulsifer  v. 
Hussman,  In  re,  §  2482,  p.  1500;  §  2505, 

p.    1508;    §    2508,    p.    1509;    §    2511,    p. 

1513. 


p.  1509;  §  2511 
1513. 
Huston,  In  re,  §  1154 


,  _..  ._,  „ ,  p.  680;  §  1156, 

p.  682;  §  1156,  p.  683;  §  1164.  p.  685; 
§  1682,  p.  1035;  §  1696,  p.  1046 


§  1682,  p.  1035;  §  1696,  p.  1046. 
Hutchinson  Co.,  In  re,  §  1617.  p.  984; 

§  2014,  p.  1250;  §  2014,  p.  1252. 
Hutchinson  Co.,  Publishing  Co.  v. 
Hutchinson  v.   Le  Roy,  §  1883,  p.  1170; 

§  1884,  p.  1173;  §  2875,  p.  1687; §  2885, 

p.  1695;  §  2918,  p.  1709;  §  2943,  p. 

1720. 
Hutchinson  v.   Otis,  §  617,  p.  366;  §  622, 

p.  367;  §  734,  p.  439;  §  766,  p.  455;  § 

1884,  p.  1176;  §  2864,  p.  1679;  §  2869, 

p.  1683;  §  2870,  p.  1684;  §  2884,  p. 

1695;  §  2901,  p.  1702;  §  2902,  p.  1703; 

§  2912,  p.  1706;  §  2923,  p.  1713;  § 

2937,  p.  1716;  §  3013,  p.  1744;  § 

3014.  p.  1745. 
Hyde,  Edmondson  v. 
Hyman,  In  re,  §  2480,  p.  1497;  §  2484,  p. 

1502. 
Hymes  Buggy  &  Implement  Co.,  In  re, 

§  1443,  p.  853;  §  1585,  p.  959;  §  1638, 

p.  1010;  §  1696,  p.  1045;  §  1797,  p. 

1093;  §  1807,  p.  1102. 
Ice  Co.,  First  Nat'l  Bk.  v. 
Ice  Mfg.  &  Storage  Co.,  In  re,  §  2183, 

p.  1343. 
Ice  Lines,  In  re,  §  81,  p.  80;  §  91.  p.  87. 


Izall,  In  re,  §  1850,  p.  1149;  §  2501,  p. 
1507;  §  2511,  p.  1513;  §  2548,  p.  1534; 
§  2549,  p.  1536;  §  2635,  p.  1571;  §  2652, 
p.  1576. 
Imperial  Corp.,  In  re,  §  167, 
430,  p.  276;  §  443,  p.  283; 


ial  Corp.,  In  re,  §  167,  p.  141;  § 
430,  p.  276;  §  443,  p.  283;  §  546,  p. 
333. 

Tndelle,  Cagliostro  v. 

Independent  Thread  Co.,  In  re,  §  44, 
p.  58;  §  167,  p.  142;  §  216,  p.  174. 


Indianapolis,  In  re,  §  236,  p.  184. 
Ingalls  Bros.,   In  re,  §  26,  p.  41;  §  720, 

p.   435,  §   723,  p.  436;   §   921,  p.   522. 
Ingles,  Foster  v. 
Ingram    v.    Wilson,    §    1022,    p.    570;    § 

1024,  p.  572;  §  1032,  p.  578;  §  1035,  p. 

590;   §   1104,   p.   631;   §   1109,   p.   634;   § 

1110,   p.    634;   §   2446,   p.    1478;    §   2866, 

p.    1682;    §    2905,    p.    1704;    §    2911,    p. 

1706;  §  2928,  p.  1714;  §  2930,  p.  1715. 
Ins.  Co.,  Clark  v. 
Ins.  Co.,  Spring  v. 
Insley  v.   Garside,   §   611,   p.   362,   §   611, 

p.  363. 
Inst.,  Darby  v. 
Institution,  Tififany  v. 
Institution,  Yeatman  v. 
International    Coal    Min.    Ci 

97,    p.    94;    §    160,    p.    138; 

1008;    §   1634,   p.   1008. 
International   Harvester  Co.  v.   Lj'man, 

§  2720,  p.  1607;  §  2723,  p.  1608;  §  2724, 

p.  1608;  §  2725,  p.  1608. 
International  Mercantile  Agency,  In  re, 

§  92,  p.   87;   §   151,  p.    132. 
Iowa   Central   Railway   Co.,   Rand   c'.- 
lowa  Falls   Mfg.   Co.,  In  re,  §  2103,  p. 

1299;  §  2103,  p.   1300;  §   2105,  p.   1300. 
Iron   and    Suppl}-    Co.    v.    Rolling   Mill 

Co.,    §    146,    p.    128;    §    1314,    p.    771;    § 

1320,  p.  775;  §  1324,  p.  776;  §  1370,  p. 

798. 


In   re.    § 
1633,    p. 


798. 
Iron    Works    v.    Xational    Lead    Co. 

3021,  p.  1747. 
Irvin,   In   re,   §   1041.   p.   593;   §   1046,   p. 

594;  §  1079,  p.  612. 
Iselin,   Clark  v. 
Isham,  Dyer  v. 
Israel,  Callahan  v. 
Israel,  Schuler  v. 

Israel.  In  re,  §  200,  p.  164;  §  205,  p.  168. 
Ives,   In   re.   §   43,  p.   58;   §   96,  p.  93;   § 

318.    p.    223;    §    429,    p.    276;    §    431,    p. 

276;  §  436,  p.  279;  §  443,  p.  283;  §  858, 

p.    491;    §    1753,    p.    1072;    §    2893,    p. 
.    1699. 

Jackman,    Eau    Claire    Xat'l   Bk.   v. 
Jackson,  Berry  v. 


Jackson,  cerry  v. 
Jackson,  In  re,  §  1019,  p.  569;  § 
570;    §    1024,    p.    572;    §    1032, 


1022. 


S  n<iy,  p.  ooy;  §  iu.;~,  p. 
p.  572;  §  1032,  p.  579; 
1047.  p.  598:  §  1091,  p.  617;  §  1104, 
629;  §  1107,  p.  633;  §  1153,  p.  680; 


1994 


TABLE  OF  CASES. 


§  1488,  p.  885;  §  1489,  p.  888;  §  1901, 
p.  1188;  §  1905,  p.  1190;  §  1915,  p. 
1194. 

Jacobs  V.   Carpenter,  §  2716,  p.  1606. 

Jacobs,  In  re,  §  132,  p.  117;  §  1140,  p. 
671;  §  1207,  p.  700;  §  1212,  p.  710;  § 
1265,  p.  745;  §  1265,  p.  746;.  §  1395,  p. 
823;  §  1396,  p.  824;  §  1398,  p.  826;  § 


,  s  J^^96,  p.  824;  §  1398,  p.  826 
1399,  p.  826;  §  1400,  p.  828;  §  1407. 
:  §  1410.  o.  836:  §  2511, 


;  § 

1407,  p. 
p.  1512; 

:874, 


834;  §  1410,  p.  836;  §  2511,  p.  lo 

§  2522,  p.  1522;  §  2864,  p.  1682;  §  26 

p.  1686;  §  2881,  p.  1690;  §  2921, 

1712;  §  2941,  p.  1718. 
Jacobs  V.    Van  Sickle,  §  1216,  p.  720; 

§  1219,  p.  723;  §  1396,  p.  825;  §  1494, 

p.  892;  §  1757,  p.  1073;  §  1758,  p.  1073; 

§  1759,  p.  1074;  §  2238,  p.  1369;  §  2255, 

p.  1375. 
Jacobs  &  Verstandig,  In  re,  §  2498,  p. 

1506;  §  2511,  p.  1511. 
Jacquith  v.    Alden,  §  1296.  p.  761;  § 

1418,  p.  840;  §  1419,  p.  841;  §  1420, 

p.  842. 
Jacquith  v.    Rowley,  §  484,  p.  311;  § 

1510,  p.  902;  §  1653,  p.  1026;  §  1655, 

p.  1029;  §  1822,  p.  1119;  §  1913,  p. 

1193. 
James  v.   Gray,  §  627,  p.  373;  §  780,  p. 

461;  §  798,  p.  467;  §  1140,  p.  670. 
Jameson,  Fuller  v. 
Jamieson,  Harmon 


_, CSUll,       ildllllUll       </. 

Jamieson,  In  re,  §  26,  p.  40;  §  1047,  p. 

598;    §    1047,    p.    599;    §    1080,    p.    613; 

§  2584,  p.  1550;  §  2583,  p.  1549. 
Janes,  In  re,  §  2238,  p.  1369;  §  2238,  p. 

1370;  §  2255,  p.  1375;  §  2256,  p.  1376; 

§  2257,  p.  1377. 
Jarecki  Mfg.  Co.  v.  McElwaine,  §  2237, 

p.    1368;    §    2238,    p.    1369;    §    2255,    p. 

1375;  §  2683,  p.  1595;  §  2794,  p.  1635; 

§  2796,  p.  1637. 
Jeffers,  In  re,  §  1047,  p.  596;  §  1088,  p. 

616. 
Jefferson  County  Nat'l  Bank,  Brown  v. 
Jefferson,  In  re,  §  653,  p.  394;  §  656,  p. 

399;   §   985,   p.   549;   §    1160,   p.   683;   § 

1565,  p.  940;  §  2204,  p.  1357;  §  2730, 

p.  1610. 
Jehu,  In  re,  §  42,  p.  57;  §  43,  p.  58;  § 

573,  p.  348;  §  1529,  p.  914;  §  1532,  p. 

916. 
r 


Jemison  ^Mercantile  Co.,  In  re,  §  419,  p. 

271;  §  421,  p.  271;  §  431,  p.  276;  § 

2430,    p.    1468. 
Jenkins,   Stone  v. 
Jenks,  Fowler  v. 
Jenks,    In    re,    §    1485,    p.    884;    §    I486, 

p.  885. 
Jenness,  Peck  v. 
Jennings,  Gordon  v. 
Jennings,  In  re,  §   1468,  p.   873;   §   1485, 

p.  884. 
Jersey    Island    Packing    Co.,    In    re,    § 

359,    p.    240;    §    361,    p.    243;    §    368,    p. 

244;    §   401,   p.    262;    §    761,    p.    453;    § 

932,    p.    524;    §    963,    p.    538;    §    973,    p. 

546;   §   1675,  p.   1033;   §   1807,  p.    1102; 

§  1816,  p.  1113;  §  1901,  p.  1188;  §  1905, 

p.    1190;    §    1913,    p.    1193;    §    1916,    p. 

1194. 
Jerstman,  In  re,  §  1228,  p.  729. 
Jetter   Brew.    Co.   v.    ScoUan,   §   994,   p. 

554. 
Jewelry  Co.,   Savings  Bk.  v. 
Jewett  Bros.  v.  Huffman,  §  1029,  p.  578; 

§  1030,  p.  578;   §   llOt),  p.   624;  §   1447, 

p.   855. 
Jewett,  In  re,  §  2257,  p.  1377. 
Johnson    v.    Andersen,    §    1337,    p.    783; 

§   1338,  p.   784;  §   1395,  p.   823;  §   1396, 

p.   824;  §  1402.  p.   830;  §  1403,  p.   830; 

§  1403,  p.   831;   §   1478,  p.   880;  §   1764, 

p.   1075. 
Johnson,   Bank  v. 

Johnson  v.   Donahue,   §   451,   p.   300. 
Johnson,  First  Nat'l  Bk.  v. 
Johnson,    First    National    Bk.    of    Hol- 

dredge  v. 
Johnson,   In   re,   §   48.   p.   61;    §   1047,   p. 

598;   §   1189,  p.   695;   §   1190,  p.   695;  § 

1267,    p.    747;    §    1455,    p.    863;    §    1647, 

p.    1013;    §    1813,    p.    1111;    §    2135,    p. 

1317;  §  2182,  p.  1342;  §  2270,  p.  1388; 

§   2270,    p.    1389. 
Johnson    &   Knox    Lumber   Co.,    In    re, 

§   1576,   p.   944. 
Johnson,   Roberts  v. 
Johnson   v.   Rogers,   §   2702,   p.   1601. 
Johnson,  Terry  v. 
Johnson  v.   Wald,  §   114,   p.   109;   §   131, 

p.  115;  §  132,  p.  115;  §  132,  p.  116. 
Johnston  v.   Forsyth   INIercantile   Co.,  § 

1216,    p.    719;    §    1216,    p.    721;    §    1216, 


TABLE  OF  CASES. 


1995 


p- 


p.    722;    §    1690,    p.    1041;    §    1737 

1069. 
Johnston  v.  Hufif,  §  1370,  p.  799;  §  1379, 

p.  804. 
Jones,  Adler  v. 
Jones,  Brumley  v. 
Jones    V.    Burnham,    Williams    &    Co., 

§   63,  p.   68;   §  63,   p.   69. 
Jones,  Clarion  Bank  v. 
Jones   &  Cook,-  In  re,  §   558,  p.   339;   § 

856,  p.  491;  §  2271,  p.  1390. 
Jones,  Goyer  v. 
Jones,  In  re,  §  607,  p.  361;  §  844,  p.  484; 

§   844,   p.   488;   §   1047,   p.    597;    §   1419, 

p.  841;  §  1497,  p.  895;  §  1883,  p.  1171; 

§  2196,  p.  1347;  §  2196,  p.  1348;  §2197, 

p.  1349;  §  2203,  p.  1356;  §  2205,  p. 

1357;  §  2236,  p.  1367;  §  2245,  p.  1372; 

§  2508,  p.  1509. 
Jones  Lumber  Co.,  Stelli 
Jones,  Merry  v. 
Jones,  Pollock  v. 


ling  V. 


Jones,   Pollock  v. 

Jones  V.  Stevens,  §  189,  p.   154;  §   1454, 

p.   863;  §  1464.  p.  871;  §  1479,  p.   881; 

§  1481,  p.  883;  §  1483,  p.  883. 
Jordan,   In   re,   §   2577,  p.   1548 
Joseph,   In  re,  §  2827,  p.  1653. 
Joseph  v.  Makley,  §  1722,  p.  1( 


juscpii  c.  .Mdiv.ey,  §  1722,  p.  1062. 
Joseph,   ^^lurraj-  v. 
Joseph  V.   RafiF,  §   1760,  p.  1074. 
Josephson,  In  re,  §  x012,  p.  562;  §  1013, 

p.   563;  §   1014,  p.   564;  §   1015,  p.  565; 

§  1140,  p.  668;  §  1140,  p.  669;  §  1140, 

p.  670;  §  1231,  p.  733;  §  1567,  p.  942; 

§  1896,  p.  1185;  §  2040,  p.  1264. 
Josephson,  Meyers  v. 
Jourdan,   In   re,   §   1418,  p.   840;   §   1419, 

p.  841;  §  1421,  p.  844;  §  2887,  p.  1696; 

§   2918,    p.    1709;    §   2999,   p.    1737. 
Joyce,  In  re,  §  1073,  p.  611. 
Judson.  Hussey  v. 
Justices      of      the      M^tnicipal       Court, 

Dean  v. 
Justinian's    Code,    Introd.    (d),   p.    3. 
Kahn  v.   Export  &  Commission  Co.,  § 

1416,  p.  839;  §  1427,  p.  846. 
Kahn.  In  re,  §  2395,  p.   1448;  §  2395,  p. 

1449. 
Kaiser,   In   re,  §   552,   p.   335;   §   2112,  p. 

1302;  §  2117,  p.  1305;  §  2448,  p.   1486; 

§  2452,  p.  1486;  §  2583,  p.  1549;  §  2595, 

p.    1553;    §    2596,    p.    1553;    §    '. 


to.i,  p.   jLrtoo;  s  <;joo,  y.   lot; 
1553;    §    2596,    p.    1553;    § 


260c 


1558;  §  2613,  p.  1563;  §  2626,  p.  1566; 

§  2627,  p.  1567;  §  2629,  p.  1569;  §  2630, 

p.  1569;  §  2631,  p.  1569. 
Kajita,  In, re,  §  877,  p.  502;  §  1791,  p. 

1083. 
Kaldenberg,  In  re,  §  554,  p.  337;  §  852, 

p.  490. 
Kallak,  In  re,  §  2144,  p.  1321;  §  2160,  p. 

1334;  §  2161,  p.  1334. 
Kalster,  In  re,  §  2635,  p.  1571. 
Kalter,  In  re,  §  877,  p.  501;  §  1173,  p. 

688. 
Kamsler,  In  re,  §  2483,  p.  1501;  §  2541, 

p.  1529;  §  2542,  p.  1531;  §  2548,  p. 


os;y;  s  ^^^^^j  P-  J-o^Jx;  S  •^548,  p. 

1534;  §  2549,  p.  1535;  §  2550,  p 
Kane  Co.  v.   Kinney,  §  1156,  r 

1161,  p.  684. 
Kane,  In  re,  §  1022 


153'; 
p.  683;  § 


600 


p.  570;  §  1048,  p. 

1;  §  1052,  p.  603; 

p.  608;  §  1089,  p.  616; 


„„„,  §  1051,  p.  603;  §  1052,  p.  603 
§  1056,  p.  1065,  -^  «'^°-  «  ""^oo  - 


§ 


I  1056,  p.  1065,  p.  608;  §  1089,  p. 

!  1819,  p.  1117;  §  1822,  p.  1119;  §  1823, 

p.  1120;  §  1836,  p.  1129;  §  1843,  p. 

1141;  §  1850,  p.  1148;  §  1851,  p.  1150; 

§  1863,  p.  1159;  §  1864,  p.  1160; 

1865.  p.  1161;  §  2905,  p.  1704;  §  2930, 

p.  1715. 
Kanter  and  Cohen,  In  re,  §  f558,  p. 

933;  §  1558,  p.  934;  §  1559,  p.  936; 

§    1780,    p.    1079;    §    1781,    p.    1080;    § 

1797,  p.  1093;   §   1798,  p.   1098;  §   1814, 

p.  1112;   §   1911,   p.   1192. 
Kaplan,   In  re.   §   1582,   p.  954. 
Kaplan   &   Skwersky,   In   re,   §   2556,   p. 

1540;  §  2569,  p.  1544. 
Karns,   In   re,   §   451,   p.   298;   §   1678,   p. 

1034;  §  1679',  p.  1034;  §  2678,  p.  1592. 
Karter,  Fields  v. 
Kasson,  In  re,  §  149,  p.   129. 
Katz,  Bank  v. 
K  "       ' 


atz,  JBanK  v. 
,.:atz.    Continental    Xat'l    Bk.   v. 
Katzenstein    v.    Reid,    §    633,    p.    376;    § 

2662,  p.  1585;  §  2669,  p.  1589;  §   2670, 

p.    1589;    §    2751,    p.    1619;    §    2752,    p. 

1619;   §  2753,  p.  1619. 
Kaufman,   Dodge  v. 
Kaufman.  In  re,  §  798,  p.  466;  §  858,  p. 

491:   §   1047,   p.   599;   §   1048,  p.    599;   § 

1066,  p.  608;  §  1069.  p.  609;  §  2237.  p. 

1368;  §  2796,  p.  1639;  §  2797,  p.  1640; 

§  2798,  p.  1641;  §  2799,  p.  1642;  § 

2801,  p.  1642;  §  2802,  p.  1642;  §  2812, 

p.  1646. 


1996 


TABLE  OF  CASES. 


Kaufman,  ]\Iorse  Rogers  v. 
Kaufman   v.    Schreier,    §    27 
§  2777,   p.   1627. 


'61,  p.  1622; 


Kaufman  v.  Tredway,  §  139»,  p.  822;  § 
1396,  p.  823;  §  1396,  p.  825;  §  1400, 
p.  828;  §  1416,  p.  839;  §  1423,  p.  844; 
5  1424,  o.  845:  S  1504.  d.  899:  S  1505. 


844: 
§  1424,  p.  845;  §  1504,  p.  899;  §  1505, 

1481, 


p.    900. 
Kaupisch   Creamery  Co.,   In  r 
p.   883. 


y.     ooo. 

Kavanaugh,  In 
"  p.  857; 
p.  863;  §  1582,  p. 


re, 
1448,  p.  857;  §  145t 


§ 
55, 


1444,  p.  854; 
p.  861;  §  14 

962; 
594, 


p.  863;  §  1582,  p.  949;  §  1587,  p.  9( 

§  1591,  p.  963;  §  1593,  p.  964;  §  15 

p.  964. 

Keefe,  In  re,  §  2596,  p.  1553. 
Keefer,  In  re,  §  1504,  p.  900;  §  2482,  p. 

1500;  §  2508,  p.  1509;  §  2545,  p.  1533; 

§  2549,  p.  1536;  §  2634,  p.  1569;  §  2635, 

p.  1571. 
Keegan  i:   King,  §  1582, 


veegan  z:   Kmg,  §  1582,  p.  949;  §  1583, 
p.  958;  §  1584,  p.  958;  §  1586, 
§  1797,  p.  1095;  §  1798,  p.  : 


, ,  ^.  ---,  ^ ,  p.  960; 

.  p.  1095;  §  1798,  p.  1098;  § 
1799,  p.  1099;  §  1808,  p.  1108;  §  1828, 
p.  1125;  §  1901,  p.  1188. 


Keegan,  Smith  z'. 
Keeler,  Wilder  z'. 
Keet,   In  re,  §   1971,  p.   1226;   §   1971,  p. 

1227. 
Keeton,    Stell    &    Co.,    In    re,    §    671,   p. 

407. 
Keine  v.  Graff,  §  2785,  p.  1630. 
Keith  V.  Gettysburg  Nat'l  Bank,  §  1395, 

p.  822;  §  1403,  p.  831;   §   1407,  p.   834; 

§   1768,   p.   1076. 
Keller,  In  re,  §  19,        ~'     " 

§  533,         --       "  - 


331;  §  533,  p.  331;  §  960,  p.  537;  § 
1140,  p.  668;  §  1140,  p.  671;  §  1144,  p. 
675;  §  1196,  p.  696;  §  1207,  p.  700; 
§  1209,  p.  707;  §  1241,  p.  736;  §  1582, 
p.  949;  §  1750,  p.  1072;  §  1796,  p.  1091; 
§  1797,  p.  1093;  §  1797,  p.  1095;  §  1806. 
p.  1101;  §  1885,  p.  1179;  §  1885,  p. 


1180;  §  1888,  p.  1181;  §  1889,  p.  1182; 

§  1965,  p.  1223;  §  1975,  p.  1228. 
Kelly,  Babbitt  v. 
Kelly  Dry  Goods  Co.,  In  re,  §  167,  p. 

141;  §  168,  p.  142;  §  379,  p.  251;  § 

385,  p.  253;  §  385.  p.  254;  §  386, 

p.  254; 


330;  §  534, 


585. 
15,     p. 
p.  331; 
902, 


:8;  §  530,  p. 


„„„,  ^  _^.,  ^.  -._,  „  571,  p.  347; 
§  865,  p.  497;  §  902,  p.  517;  §  1780,  p. 
1079;  §  1783,  p.  1081;  §  1943,  p.  1212; 
§  1946,  p.  1214;  §  2035,  p.  1262;  § 
2045,  p.  1267;  §  2054,  p.  1278;  §  2059, 
p.-  1281;  §  2839,  p.  1659;  §  2840,  p. 
1660;  §  2841,  p.  1661. 
Kelly,  In  re,  §  250,  p.  190; 


...^,  ...  .-,  ,3  ..--,  r.  --  ,  „  -J8,  p.  232; 
§  340,  p.  232;  §  355,  p.  239;  §  393,  p. 
257;  §  1652,  p.  1020;  §  1653,  p.  1024. 
Kemp,  In  re,  §  1429,  p.  847. 


p,  in  re,  §  i4-^y,  p.  »47. 

Kemper,   In  re,  §   716,  p.   429;   §   723,  p. 

436;  §  734,  p.  440. 
Kempner,  In  re,  §  1819,  p.  111*5. 
Kennedy,  In  re,  §  1827,  p.  1123. 
Kennedy,  Leighton  z>. 
Kenney,  In  re,  §  63,  p.  68;  §  751,  p.  446; 
§   1429,  p.  847;   §   1429,  p.   848;   §   1451, 
p.  860;   §   1462,  p.  868;  §   1473,  p.   877; 
§   1478,  p.   880;  §  1479,  p.   881;  §   1481, 
p.  883;  §  1489,  p.  886;  §   1805,  p.  1100; 
§  1827,  p.  1122;  §  1901,  p.  1188;  §  1902, 
p.  1190;  §  2239,  p.  1370. 
Kenney,  E.  T.,  &  Co.,  In  re,  §  574,  p. 

348;  §  891,   p.   509. 
Kentucky  National   Bank  of   Louisville 
v.   Carley,   §   2533,   p.   1526;   §    2596,   p. 
1553;  §  2621,  p.   1564;  §  2627,  p.   1567; 
§  2633,  p.   1569. 
Kenyon,  In  re,  §  2544,  p.  1533. 
Keppel   ZK    Tiffin    Sav.    Bank,    §    233,    p. 
182;    §    723,    p.    436;    §    770,    p.    456;    § 
1269,    p.    748. 

rber,    In   re,   §    1575,    p.   944;    §    1576, 
).  944. 

rski.    In   re,   §'  1653,   p.   1024;   §    1901, 
I.    1188;    §    1905,    p.    1190;    §    1918,    p. 
195. 
ersten.  In  re,  §  135,   p.   119;   §   138,  p. 
120;  §  139,  p.  122;  §  169,  p.  143;  §  171, 
n.    145;    §    250,    p.    190;    §    333,    p.    226; 
1439,  p.   850;  §  1461,  p.   867;  §  1472, 
875;   §   1602,  p.  967;   §  1609,  p.  978; 
625,  p.  989;  §  1634,  p.   1008. 


K 

Ke 

F 

1 

Ker 


P- 
§ 
P 

§  1 
Kers 


ten  z:  Kersten,  §  79,  p.  79. 


TABLE  OF  CASES. 


1997 


971; 
1626, 
996; 


Kest,   In   re,   §   1965,  p.   1224. 
Ketcham,  In  re,  §   1115,  p.  637. 
Ketcham  v.  McNamara,  §  1603,  p. 

§  1603,  p.  974;  §   1625,  p.  989;   § 

p.  991;   §   1628,  p.  994;  §   1629,  p. 

§  1632,  p.  1005. 
Ketchuni,  In  re,  §  372,  p.  246;  §  373,  p. 

246;    §    374,   p.    247. 
Ketchum,  Zininierman  v. 
Key,  English  t'. 
Keyes    v.    McKirrow,    §    902,    p.    517;    § 

2388,  p.   1444. 
Keyes,  Manning  v. 
Keyser    v.    Wessel,    §    1986,    p.    1230;    § 

1987,  p.  1231. 
Keystone  Coal   Co.,   In  re,  §  30,  p.   -1 

§   81,  p.  80;  §   84;  p.  83;  §  93,  p.   87. 
Kibbourne    &    Clark,    Northwest    Fi 

ture  Co.  V. 
Kimball,   In  re,  §   194,  p.   159;   §   614, 

365;    §    887,   p.    507;    §    147" 

1901,  p.    1189;    §   1902 
Kf     '     '• 


48; 


.    p.    877;    § 
p.    1190. 


yui,  p.  ii»y;  §  iyu:i,  p.  iiyu. 
tnball    V.    Rosenham    Co.,    §    1296, 
■61;  §  1416,  p.  839;  §  1419,  p.  841. 


Cimball 

761;  §  1416,  p.  839;  §  1419,  p.  841 
Kimball,  Scammon  v. 
'lindt,  In  re,  §  194,  p.  159;  §  586 

§  1316,        ~""-  "  """"    -    - 


o-viiiiuan,  w-cammon  v 

Kindt,  In  re,  §  194,  p.  159;  §  586,  p.  353; 

§  1316,  p.  773;  §  2275,  p.  1391;  §  2275', 

p.  1392. 
King,  Boese  v. 
King  Co.,  In  re,  §  1189,  p.  695;  §  1190, 

p.  695;  §  1284,  p.  758;  §  1296,  p.  761; 

§   1393,  p.  821;  §   1403,  p.  830;   §   1419, 

p.   841;   §   1421,  p.   843. 
King,  First  National  Bk.  of  Denver  v. 
King,  Keegan  v. 


Zing,  Keegan  v. 
Ring,    London 
King,  Moran  z 


p.   981;   §   1954, 
re,  §   630,  p.  374. 


King  V.   Sullivan.   §   354,   p.   237. 
Kingman,   In  re,  §   1614, 

p.  1218. 
Kingsley,   In  re,  §   630,  p.  o.,. 
Kinmouth    v.    Braeutigam,     §     1119.    p. 

640;    §    1126,    p.    642;    §    1134,    p.    646; 

§  1448,  p.  857;  §  1449,  p.  859;  §  1452, 

p.  861;  §  1453,  p.  862;  §  1466,  p.  872; 

§  2695,  p.  1598;  §  2699,  p.  1600;  §  2704, 

p.  1603;  §  2706,  p.  1603. 
Kinney,  Kane  Co.  v. 
Kinyon,    Brj'ant   v. 
Kirby-Dennis  Co.,  In  re,  §  1144,  p.  673; 

§   M54,  p.   680;   §    1155,   p.   681;    §    1161. 

p.   684;  §   1162,   p.  685. 


Kirkpatrick,  In  re,  §  358,  p.  240;  §  2115 
p.    1304;    §    2116,    p.    1304;    §    2118, 
1306;  §  2119,  p.  1307;  §  2132,  p.  1311 


juo;  s  ;iiiy,  p.  idu<;  §  (iL6<i,  p.  iiji±. 
ipholz  &  Brien,  In,  re,  §  1986,  p.  1231 
^    1987,    p.    1231;    §    1987,    p.    1232. 
s:iein.    In   re,   §    1598,  p.   965;    §    1646,   p. 
1012;  §   1901,  p.   1188;   §   1907,  p.   1191. 
ilein   &    Co.,    In   re,    §    1612,    p.   979;    § 


^„..,  p.   980;   §   1614,   p.   981. 
Kleinhans,   In  re,   §   359,  p.   240;   §   377, 

p.  248;  §  1797,  p.  1093;  §  1798,  p.  1098; 

§  1799,  p.  1099;  §  1807,  p.  1101;  §  1807, 

p.  1105;  §  1901,  p.  1188. 
Kletchka,   In   re,   §   2702,   p.   1601. 
Klingman,  In  re,  §  1209,  p.  707;  §  1236, 

p.  734;   §  1369,  p.   795;  §    1370,  p.   798; 

§  1372,  p.  801;   §   1379,  p.   804;   §   1381, 


p.  810. 


Kl 


1105,  p. 
p.  860; 
§  1524, 


.ipstein  v.   Allen  Miles  Co.,  § 

632;  §  1439,  p.  851;  §  1450, 

§  1511,  p.  903;  §  1524,  p.  907 

p.  908. 
Klug,  First  Nat'l  Bk.  v. 
Knapp  V.    Harold,  §  2777,  p.  1627;  § 

2778,  p.  1627. 
Knaszak,  In  re,  §  1555,  p.  930;  §  2596, 

p.  1553;  §  2596,  p.  1554;  §  2610,  p. 

1562;  §  2613,  p.  1563;  §  2617,  p.  1564; 

§  2629,  p.  1567;  §  2629,  p.  1568;  § 

2634,  p.  1570;  §  2641,  p.  1573. 
Knauer,  In  re,  §  2427,  p.  1466;  §  2428, 

p.  1467. 
Knickerbocker,  In  re,  §  1477,  p.  879; 

§  1478,  p.  881;  §  1652,  p.  1020;  §  1822, 

p.  1120;  §  1827,  p.  1122;  §  1828,  p. 

1125. 
Knight  V.    Cheney,  §  1655,  p.  1029;  § 

2864,  p.  1682. 
Knight,  In  re,  §  1439,  p.  850;  §  1444,  p. 

854;  §  1472,  p.  876;  §  1582,  p.  954; 

§  1586,  p.  960;  §  1587,  p.  962;  §  1602, 

p.  967;  §  1603,  p.  968;  §  1603,  p.  970; 

§  1603,  p.  971;  §  1604,  p.  975;  §  1605, 

p.  975;  §  1613,  p.  980;  §  1800,  p.  1099; 

§  1827,  p.  1122;  §  2047,  p.  1268;  §  2257, 

p.  1377. 
Knittel  v.    McGowan,  §  174.  p.  ]47;  § 

175,  p.  148;  §  178,  p.  149;  §  181,  p. 

151;  §  2014,  p.  1251. 
Knittel,  McGowan  v. 
Knopf.    In    re,    §    337.    p.    232;    §    341,    p. 

233;    §    355,    p.    237;    §    523,    p.    325;    § 


1998 


TABLE  OF  CASES. 


1216,   p.    722;    §    1227,    p.    726;    §    1494, 

p.  891;  §  1494,  p.  893;  §  1652,  p.  1020; 

§  1676,  p.   1034. 
Knost,  Hicks  v. 
Knost,  Strobel  v. 

Knost  V.  Wilhelmy,  §  1331,  p.  780. 
Knott,  In  re,  §  689,  p.  417. 
Knott    V.    Putnam,    §    2748,    p.    1618;    § 

2*783,  p.   1628;  §  2785,  p.   1630;  §  2790, 

p.    163," 


K: 


ooo 


:0,   p. 


nox.   In  re,   §   1198,  p.   697 

1362. 
Knox,  Marshal  v. 
Koenig,  In  re,  §  908,  p.  519. 
Koenig   &  Van   Hoogenhuyze,   In   re,   § 

23,  p.  38;  §  824,  p.  477;  §  2827,  p.  1654; 

§    2832,    p.    1655;    §    2994,    p.    1736;    § 

2996,  p.   1737;  §  3002,  p.  1739. 
Koester,  In  re,  §   653,  p.  396. 
Kohlsaat,  In  re,  §   2224,  p.  13 
Kohn,   In  re,   §  1387,  -    oo 
Kohn,  Ward  v. 


p.  136: 
p.   818. 


.uiiii,    vv  a.1  u    u. 
Kohout  V.   Chaloupka,   §   751, 

766,  p.  455;   §   1489,  p.   888. 
KoP"    ^"  -"    ^  --"^    -    "'"'•  "^ 

§  .   - 

257;    §    394, 


p.    446;    § 

766,  p.  455;   §   1489,  p.   888. 

oHn,  In  re,  §  355,  p.  238;  §  385,  p.  253; 

§  385,  p.   254;  §   391,  p.  256;   §   393,  p. 
§    394,    p.   257;    §    1212,   p.    711;    § 

1215,   p.   718;    §   1667,  p.   1032;   §    1696, 

p.    1045;    §    1696,    p.    1046;    §    1698,    p. 

1047;  §  1704,  p.  1051;  §  1717,  p.  1058;  § 

2861,   p.   1671. 
Kolster,   In   re,   §  2511,  p.   1512;   §   2651, 

p.   1576;  §2652,  p.  1576. 
Krinsky    Bros.,   In   re,   §   359,   p.   241;   § 

363,  p.  243;   §   1133,  p.   644;   §   1134,  p. 

646;  §  1215,  p.  718;  §  1727,  p.  1064; 

§  1901,  p.  1188;  §  1921,  p.  1196. 
Kross,  In  re,  §  2019,  p.  1256;  §  2045, 

p.  1266;  §  2079,  p.  1288;  §  2082,  p. 

1288;  §  2085,  p.  1290;  §  2086,  p.  1291; 

§  2087,  p.  1293;  §  2090,  p.  1294;  §  2091, 

p.  1295;  §  2092,  p.  1295;  §  2096,  p. 

1296;  §  2097,  p.  1296;  §  2097,  p.  1297; 

§  2098,  p.  1298. 
Krueger,  In  re,  §  1547,  p.  925;  §  1564,  p. 

940;  §  2642,  p.  1573. 
Krulcwich,  Elli.s  v. 
Kuffler,  In  re,  §  869,  p.  498;  §  2436,  p. 

1471;  §  2887,  p.  1696;  §  2895,  p.  1700; 

§  2897,  p.  1701;  §  2437,  p.  1474;  § 

2438,  p.  1475. 
Kuhn,  Rosier  v. 


Kuntz  V.  Young,  §  1982,  p.  1229;  §  2436, 
p.  1471;  §  2437,  p.  1471;  §  2437,  p. 
1473;  §  2464,  p.  1489;  §  2952,  p.  1723. 

Kurtz,  In  re,-  §  1819,  p.  1115;  §  1848,  p. 
1145:  §  1851,  p.  1151;  §  2852,  p.  1665; 


;  §  1851,  p.  1151;  §  2852, 

•§  2855,  p.  1667. 
Kyle  Lumber  Co.  v.    Bush,  §  297,  p. 

215. 
Lackow,  In  re,  §  245,  p.  188;  §  258,  p. 

194. 
Ladue  Tate  MTg  Co.,   In  re,  §  807,  p. 

470;    §    844,    p.    485. 
Lafferty   &   Bro.,    In   re,   §    786,   p.   462; 

§  819,  p.  475;  §   1193,  p.  696. 
Lafleche,  In  re,  §  2545,  p.  1533;   §  2634, 

p.    1569;    §    2638,    p.    1572;    §    2639,    p. 

1572;  §  2861,  p.   1670. 
Laidley,   Cleage  v. 
Laird  Co.,  Grant  Shoe  Co.  v. 
Laird,    In   re,   §    150,   p.    131;    §    2014,   p. 

1250;  §  2179,  p.  1341;  §  2196,  p.  1347; 

§   2203,   p.   1354. 
Lake   Jackson   Sugar   Co.,    In   re,   §   50, 

p.   62. 
Lake,  Rush  v. 
Lake,  U.  S.  v. 

Lambert,   Smith   &  Wallace   Co.  v. 
Landis,   Duncan  v. 
Landry    v.    Andrews,   ^    611,    p.    363;    § 

644,  p.  384;   §   1310,   p.  767;   §   1311,  p. 

768;  §  1311,  p.  769;  §  1331,  p.  780. 
Lane,   In  re,  §   2345,  p.   1424;   §   2389,  p. 


.V..,  ^  ^„„.,  p.  780. 
■e,  §   2345,  p.   1424;   §   21 
390,   p.   1445;   §  2394,  p.   1446. 
Lang,   In  re,  §  2011,  p.   1248;   §   2045,  p. 
1266;   §   2047,  p.  1269;   §  2048,  p.   1271. 
Lang,    Lockman    v. 
Langdon,   Gleni 
L 
L 


,angdon,   Glenny  v. 

,angdon,   In  re,  §  2369,  p.   1433. 

,ange.    In    re,   §    174,   p.    147;    §   267,   p. 


198;    §    1003.    p.    557;    §    1303,    p.    765 
§  1317,  p.  773;   §   1317,  p.   774 
p.  791;  §  1363,  p.  793. 
Langhorst,  Hicks  z'. 

ngslow,   In  re.   §   289,  p.   208. 
nsaw.   In   re,  §   80? 
489;    §   1216,   p.   719. 
sing   Boiler   &  Eng.   Wks.  f 
)n,  §  104,  p.  104;  §  106,  p.  105;  §  109, 
106;    §    112,    p.    108;    §    132,    p.    116; 
177,   p.    149;   §   1345,   p.   788;    §    1346, 
p.   788;  §   1733,  p.   1067. 
Lantzenheimer,   In  re,   §  755,  p.  447. 


La 
La 


Lan 
so 
P 
§ 


1354, 

p.    470;    §    850,   p. 
Ryer- 


TABLE  OF  CASKS. 


1999 


Lapham,   Rayl  v. 

La  Plume  Condensed  ]Milk  Co.,  Tif- 
fany V. 

Larremore,  Clarke  z'. 

Lasch,  In  re,  §  1819,  p.  1115;  §  1837,  p. 
1130;  §   1839,  p.   1133;  §  1842,  p.   1139. 

Lasher,  Sutherland  z'. 

Laskaris,  In  re,  §  191,  p.  159;  §  241, 
"   ""  19^ 


p.   186;   §   256,  p. 

athrop,   In  re,   §   1547,  p.  925. 

athrop   V.   Drake,   §   29,  p.   45;   §   1705, 

p.  1051;  §  2864,  p.  1682. 

*,„_    _.     *^T_^'„„l      ff     ni/?      „      234" 


p.  1051;  §  2864,  p.  1682. 
Latimer    z:   'McXeal,    §    346,    p.    234;    § 
359,    p.    240;    §    368,    p.    244;    §    381,    p. 


251. 
Laughlin,  In  re,  §  2794,  p.  1G35;  §  2797, 

p.  1641. 
Laundy  v.   Nat'l   Bk.,   §   1219,  p.   723;   § 

1395,  p.  822;  §  1396,  p.  825;  §  1397,  p. 

826;   §   1399,  p.   827;   §   1407,   p.   834;    § 

1408,   p.   835;   §   1739,  p.   1.069. 

„    ---  ---      '^    412,    p. 


Lavoc,    In   re,   §   398,   p.   259;   ^   -xx.., 
266;    §    417,    p.    269;    §    448,    p.    295; 
1416;  §  2339,  p.  1419. 


2331,  p.  1416;  §  2339,  p.  1419. 
Law,  In  re,  §  890,  p.  509. 
Lawler,   In   re,  §  2170,  p.   1338;   §   2179, 

V.    1341;    §    2180,    p.    1342;    §    2195,    p. 


P 

1347. 

Lawrence,  In  re,  §  2861,  p.  1671. 
Lawrence  v.  Harrington,  §  2716,  p.  1606. 
Lawrence  v.   Lowrie,   §   1227,   p.   726;   § 

1687.  p.  1038;  §  1690,  p.   1042;   §   1727, 

p.  1064. 

Lawrence,  Padgett  v. 

T  -,, \^^  i^  j.g^  g  g3g^  p 

In  re,  §   572,  p, 
351;    §    882,    p. 
890,  p       "     " 


Lazarovic,  In  re,  §  636,  p.  378. 

Lazoris,   In  re,  §  572,  p.  347;  §  584,  p. 

:,    p.    504;    §    883,    p.    504;    § 

_-    ,  ,  .   509;  §   892,  p.  509. 
Lea  Bros.  v.  West,  §  177,  p.  149;  §  1602, 

p.  967. 
Lea  Bros.,  West  Co.  t'. 
Lebrecht,  In  re,  §  392,  p.  256;  §  1667,  p. 

1032;  §   1818,  p.  1114;   §   1824,  p.   1120. 
Le   Claire,  In  re,  §  970,  p.   543;   §   1019, 
569;  §  1130,  p.  643;  §  2522,  p.  1523. 


Ledbetter  v.  U.  S.,  §  243,  p.  187. 
Lederer,  In  re,  §  419,  p.  269;  §  2433,  p. 

1470;  §  2710,  p.   1604. 
Leeds   Woolen   ]\Iills,   In   re,   §    1228,   p. 
■    727;   §   1657,   p.   1029;   §    1690,   p.    1042; 

§  1796,  p.  1091;  §  1797,  p.  1093;  §  1801, 


p.    1099;    §    1802,    p.    1100;    §    2924, 
1713. 


1(13. 

Lee,  Ex  parte,  §  1543, 
Lee,   McKey  z' 


p.  920. 


p.  168;: 


Lee,   McKey  z\ 

Leggett  z'.  Allen,  §  2867,  ,.. 

Leggett,  Bell  z: 

Lehigh  Lumber  Co.,  In  re,  §  64,  p.  70; 
§  171,  p.  144;'  §  1291,  p.  759;  §  1447, 
p.  855;  §  2233,  p.  1367;  §  2246,  p.  1372; 


p.   ooo,  vj  .i^ao,  p.  looi;  8  ^a-io,  p. 
§   2264,    p.    1386;   §    2266,   p.    1386. 
Lehman   v.    Crosby,    §    1653,   p.    1024;   § 
1792,   p.   1083;   §   1793,  p.    1084. 


..-,   t..   ^^.■„,   §   1793,  p.    1084. 
Leibowitz,   In   re,   §   700 

p.  436 
Lei 


p.    423;   §   723, 

p.  436. 
Leicester  v.  Hoadley,  §  2754,  p.  1620. 
Leidigh  Carriage  Co.  z'.  Stengel,  §  2,  p. 

21;  §  3,  p.  21;  §  4,  p.  22;  §  8,  p.  25; 

''  "  p.  26;  §  17,  p.  33;  ^  147,  p.  128; 


9 
§  222, 
1 
P 


222,  p.  176;  §  223,  p.  177;  §  226,  p. 
79;  §  250,  p.  190;  §  260,  p.  195;  §  282, 
.  204;  §  1454,  p.  863;  §  1582,  p.  949; 


p.  9^ 


_     ,  „  p.  949; 

p.  960;  §  1602,  p.  967;  §  1603, 
§  1604,  p.  975;  §  1610,  p.  978; 
§  1827,  p.  1122. 
Leigh  Bros.,  In  re,  §  1212, 

1230,  p.  732. 
Leinweber,  In  re,  §  1819, 
1839,  p.  1133;  §  1842,  p.  1 


§  1610,  p.  978; 
p.    710;    § 
p.    Ill; 


,   „   1842,  p.   1138;   §  1848, 

p.  1145;  §  1850,  p.  1147. 
Leighton   &'  Co.,   In  re,  §  91,  p.   87. 
Leighton   v.   Kennedy,   §   202,   p.   166;   § 

205.  p.  167;  §  205,  p.  170;  §  233,  p.  183; 

"   574,   p.   348. 


Leitch    z'.    Northern    Pac.    Ry.    Co.,    § 

2678,    p.    1592. 
Leland,   In   re,   §   2796,   p.   1637. 
Lemmon   &   Gale   Co.,   In   re,   §    858,   p. 

491;    §    1033,    p.    585;    §    1582,    p.    949; 

§     1796,     p.     1091;     §     1797,     p.     1093; 

§  1798,  p.  1098;  §  1807,  p.  1105;  §  1885, 

p.  1178;  §  1901,  p.  1188;  §  1908,  p.  1191. 
Lemon  &  Gale  Co..  Boyd  v. 
Lengert    Wagon    Co.,    In    re,    §    366,    p. 

244;   §   1439,  p.   850;   §   1472,  p.   874;   § 

1472,  p.  876;  §  1602,  p.  967;  §  1616,  p. 

983;  §  1625,  p.  989;  §  1634,  p.  1008;  § 

1827,  p.  1122. 


Leon 
Le 


.1,  jj.    _ij.~~. 
canard.  In  re,  §  265,  p.  197. 
eopold.  In  re,  §  1850,  p.  1147;  §  2549, 
p.  1535;  §  2649,  p.  1575. 
Roy,  Ex  parte,  §  1884,  p.  1173. 


Le 

Lekoy,   Hiller  v 


2000 


TABLE  OF  CASES. 


Lekoy,  Hutchinson  v. 
Leslie,  In  re,  §  17,  p.  32;  §  1121,  p.  641; 
*     2465,     p.     1489:     «     "'"~  """"" 


§  2501,  p.  1507;  §  2521 
2522,  p.  1520;  §  2636, 
2638,  p.  1572;  §  2639 
2641,  p.  1573;  §  2642 


2487,  p.  1503; 


p.  1520; 
p.  1571; 
p.  1572; 


:^04i,  p.  lovo;  §  zo^z,  p.  1573;  §  2648, 
p.  1575;  §  2650,  p.  i575;  *"  """'^  " 
157.G. 


2652,  p. 


ID  (,U. 

Lesser,  In  re,  §  528,  p.  330;  §  1455,  p 
863;  §  1464,  p.  871;  §  1472,  p.  875;  § 
1489,  p.  886-  «  -"""^    •-  "'"^°- 
1 
§ 


489,  p.  886;  §  1687,  p.  1038;  1850,  p. 
149;  §  1852,  p.  1152;  §  2507,  p.  1509; 
:  2522,  p.  1520;  §  2522,  p.  1523;  § 

7,  p.  1564;  §  2698,  p.  1600;  §  2702, 

cm 


p.  1601. 

Lesser  v.   Bradford  Realt}-  C 

p.  770. 
Lesser  Bros.,  In  re,  §  1448,  p 

1449, 


1314, 


p.  770. 

esser  Bros.,  In  re,  §  1448,  p.  858;  § 

1449,  p.  859;  §  1471,  p.  874;  §  1473, 

p.  877;  §  1901,  p.  1188;  §  1902,  p.  1190; 

§  2018,  p.  1255. 
Lesser  v.    Realty  Co.,  §  1725,  p.  1063; 

§  1761,  p.  1074;  §  1765,  p.  1075;  §  1766. 

p.  1075;  §  1767,  p.  1075;  §  1770,  p. 

1076. 
Le  Vay,  In  re.  §  1024,  p.  572;  §  1032, 

p.  578;  §  1048,  p.  599;  §  1051,  p.  603; 

§  1055,  p.  605;  §  1058,  p.  606;  §  1069, 

p.  609;  §  1073,  p.  611;  §  1091,  p.  617; 

§  1093,  p.  618;  §   2010,  p.  1246. 
Levey,  In  re,  §  2375,  p.  1438;  §  2458,  p. 

1488;   §  2459,  p.   1488;  §  2460,  p.  1488; 

§    2464,    p.    1489;    §    2556,    p.    1540;    § 

2595,  p.  1552;  §  2596,  p.   1553;  §   2605, 

p.  1558;  §  2608,  p.  1561. 
Levi,  In  re,  §  794,  p.  464. 
Levi   &  Klauber,   In  re,  §  419,  p.  269. 
Levin,   In   re,   §    1228,   p.   727;   §   1228,   p. 

730;    §    1559,    p.    936;    §    1819,    p.    1115; 

§  1850,  p.  1147. 
Levine,  Lowenberg  v. 
Levinson  &  Kornblut,  U.  S.  v. 
Levingston,   In   re,  §  46,  p.  59;   §   61,  p. 

67;  §  218,  p.  175;  §  243,  p.  187;  §  245, 

p.  188;  §  277,  p.  203;  §  279,  p.  204. 
Levi  z'.  Picard,  §  1876,  p.  1164;  §  1879, 

p.  1166;  §  1879,  p.  1167. 
Levi  &  Picard,  In  re,  §  1879,  p.  1166;  § 

1879,  p.  1167. 
Levitt,  In  re,  §  1614.  p.  980;  §  1614,  p. 

981;  §  2864,  p.  1679;  §  2868,  p.  1683. 


Levor  f.  Salter,  §  1343,  p.  787;  §  1361, 
"   793;  §  1395.  p.  823;  §  1429, 'p. 
l;  §  1451,  p.  860;  §  1460,  p.  866;  § 


p. 

848; 


w,^,  s  ^^^^,  p.  860;  §  1460,  p.  866;  § 
1460,  p.  867;  §  1477,  p.  878;  §  1478,  p. 
880;  §   1478,  p.   881;   §   1776,  p.   1078. 

Levy,  Hill  v. 

Levy,  In  re,  §  288, 


1655. 

Levy  &  Co.,  In  re,  §  1842,  p.  1137;  § 
1850,  p.  1147;  §  1855,  p.  1154;  §  1856, 
p.  1154;  §  1859,  p.  1157;  §  2344,  p. 
1419;    §   3009,   p.    1741. 

Levy,  ]\Iandell  &  Co.  z: 

Levy  &  Richman,  In  re,  §  41,  p.  57;  § 
58,  p.  65. 

Levy,   Wolf  V. 

Lewensohn,  In  re,  §  464,  p.  304;  §  466, 
p.  305;  §  470,  p.  306;  §  638,  p.  379;  § 
824.  p.  477;  §  826,  p.  479;  §  862,  p. 
496;  §  882,  p.  504;  §  884,  p.  504;  § 
887.  p.  505;  §  895,  p.  510;  §  897,  p.  513; 
§  948,  p.  526;  §  2056,  p.  1279;  §  2446, 
p.  1478;  §  2748,  p.  1617;  §  2827,  p. 
1  fi.=;s 


L 


1653. 

ewes.  In  re,  §  1619 


,^vv^o,  .w  ■^,  s  ^"^-^  P-  984. 

.ewin.  In  re,  §  2045,  p.  1267;  §  2052, 

p.  1275;  §  2082,  p.  1288;  §  2085,  p. 

1289;  §  2096,  p.  1296;  §  2097,  p.  1296; 

§  2098,  p.  1298;  §  2099,  p.  1298;  §  2426, 

p.  1466;  §  2541,  p.  1529;  §  2550,  p. 

1537. 
Lewis,  In  re,  §  188,  p.  154;  §  306,  p. 

219;  §  419,  p.  269;  §  419,  p.  270;  §  422, 

p.  271;  §  1375,  p.  803;  §  1454,  p.  863; 

§  1485,  p.  884;  §  1879,  p.  1166;  §  2196, 

p.  1347;  §  2197,  p.  1349;  §  2203,  p. 

1356;  §  2369,  p.  1435. 
Le  ■   -  - 
L 

2168,   p.   1336 


1356;    §    2369,    p.    1435. 
ewis   &   Bros.,   In   re.   §   311, 
ewis    Co.,    In    re,    §    2166,    p 
2168,  p.  1336. 


P- 

p.    220. 
p.    1335;    § 


246. 


iilOO,     p.     lOoD. 

Lewis  z'.  Shainwald    §  373.  p. 

Lewis  v.   Sloan.  §  444,  p.  283. 

Lewis,   Vietor   f. 

L'Hommediem,   In  re.   §  1885,  p.   1178; 

§    1885,    p.    1179;    §    1885,   p.    1180. 
Libby,  In  re,  §  1047,  p.  595. 


luijy,    111    1  c,   ^    i\j-t  I ,   p.    ovo. 

iddon  &  Bro.  v.  Smith,  §  1996,  p.  1235; 
§    2045,    p.    1267;    §    2049,    p.    1273;    § 


TABLK  OF  CASES. 


2001 


2075,  p.   1286;   §   2084,  p.   1289;  §  2864, 

p.    1681;    §    2869,    p.    1683;    §    2875,    p. 

1687;  §   2923,  p.   1713. 
Lieber,   In   re,   §   2468,   p.    1491;   §   2470, 

p.    1493;    §    2482,    p.    1499;    §    2544,    p. 

1533;   §   2662,   p.   1584. 
Lillington   Lumber   Co.,    In    re,   §    IKil, 

p.  684. 
Lindeke  v.  Associates  Realty  Co.,  §  986, 

p.  550;  §  988,  p.  551;  §  1151,  p.  680. 
Lines,   In   re,  §   1160,   p.   683;   §   1796,  p. 

1092;  §  1797,  p.   1098;  §  1798.  p.  1098; 

§    1807,    p.    1105;    §    1885,    p.    1179;    § 

2204,   p.    1356. 
Linn  z'.  Smith,  §  235,  p.  184. 
Linstrotli  Wagon  Co.  z'.  Ballew,  §  1144, 

p.   673;   §   1582,  p.   951. 
Linton,    In   re,   §    554,   p.    338;    §    789,   p. 

463;  §  824,  p.  477;  §  827,  p.  480;  §  831, 

p.    481;    §    832,    p.    482;    §    836,    p.    483; 

§    839,    p.    484;    §    852,    p.    490;    §    1354, 

p.  791. 
Lipke,  In  re,  §  20,  p.  37;  §  373,  p.  246. 
Lipman,   In   re,  §   784,  p.   462;   §   786,   p. 

462;  §  787,  p.  462;  §  788,  p.  463. 
Lipman  z'.   Stein,  §  26,  p.  41;   §  1022,  p. 

570;  §   1041,   p.   592;   §   1048,   p.   599;    § 

1048,  p.  600;  §  1048,  p.  602;  §  1052, 

p.  604;  §  1058,  p.  006;  §  2905,  p.  1704; 

§  2930,  p.  1715. 
Lipset,  In  re,  §  552,  p.  335;  §  552,  p. 

337;  §  1555,  p.  930;  §  2628,  p.  1567;  § 

2629,  p.  1567. 
Litchfield,  In  re,  §  2257,  p.  1377. 
Little,  In  re,  §  751,  p.  446;  §  755,  p. 

448;  §  1022,  p.  570;  §  1024,  p.  572;  § 

1032,  p.  579;  §  1035,  p.  590;  §  1037,  p. 

591;  §  1173,  p.  688;  §  1180,  p.  691; 

§  1316,  p.  773;  §  2577,  p.  1548;  §  2579, 

p.    1548. 
Little  V.   Hardware   Co.,   §   185,  p.   153; 

§  1381,  p.  808;  §  1397,  p.  825. 
Little,   Woods   v. 
Littlefield,   Camb.   Sav.   Inst.  v. 
Littlefield,  In  re,  §  2608,  p.  1559. 
Littlefield    v.    Gray,    §    1625,    p.    989;    § 

1628,    p.    994;    §    1629,    p.    996;    §    1630, 

p.   1001;   §   1631,  p.   1003. 
Little   River  Lumber   Co.,   In   re,  §   824, 

p.  477;  §  826,  p.  479;  §  827, 

901.    "  ■"  "   -  - 


p.  477;  §  826,  p.  479;  §  827,  p.  479; 
901.  p.  516;  §  1140,  p.  671;  §  1216, 
720;  §  1314,  p.  770;  §  1320,  p.  774; 


p.  479;  § 
P- 


2014,  p.  1251;  §  2018,  p.  1254;  §  2045,  p. 

1267;  §  2048,  p.  1272. 
Livingston,  In  re,  §  2863,  p.  1673. 
Livingston  Co.;  In  re,  §  835,  p.  482.  • 
Livingston  v.   Heineman,  §  611,  p.  363; 

§  613,  p.  364;  §  645,  p.  387;  §  1310,  p. 

767;  §  1385,  p.  816;  §  1387,  p.  818;  § 

1387,  p.  819;  §  1421,  p.  843;  §  29C9,  p. 

1705. 
Lloyd,  In  re,  §  882,  p.  504;  §  885,  p.  504; 

§  887,  p.  505;  §  887,  p.  506;  §  887,  p. 

507;   §    887,   p.   508;   §   2257,   p.    1377. 
Loan   &  Trust   Co.   v.    Graham,   §   2881, 

p.    1691;    §    2942,    p.    1720;    §    2997,    p. 

1737;  §  3009,  p.   1741. 
Lockman  v.  Lang,  §  20,  p.   37;   §  23,  p. 

39;    §   33,   p.   54;   §   275,   p.    202;   §   328, 

p.  226;  §   858,  p.  491;   §   2865,  p.   1682; 

§  2891,  p.  1698;  §  2913,  p.  1708;  § 

2918,  p.  1709;  §  2919,  p.  1710;  §  2960, 

p.  1725;  §  2961,  p.  1726;  §  2970,  p. 

1729;  §  2973,  p.  1730;  §  2971,  p.  1730; 

§  2979,  p.  1732;  §  2978,  p.  1732. 
Locks,  in  re,  §  2521,  p.  1519;  §  2522,  p. 

1522;  §  2635,  p.  1571. 
Lockwood  V.   Exch.  Bk.,  §  755,  p.  447; 

§  1022,  p.  570;  §  1024,  p.  572;  §  1032, 

p.  579;  §  1034,  p.  585;  §  1091,  p.  617; 

§  1104,  p.  629;  §  1104,  p.  631;  §  1214, 

p.  717;  §  1239,  p.  736;  §  2446,  p. 

1478. 
Lockwood,    Howard    &    Co.,    §    2357,   p. 

1431-. 
Loeb,   Bailey  z'. 
Loeser   v.    Bk.,    §    1232,    p.    733;    §    1369, 

p.  795;   §   1381,  p.   808;  §   1383,  p.   811; 

§  1383,  p.  812. 
Logan,  In  re,  §  1555,  p.  930;  §  2623,  p. 

1565;  §  2635.  p.  1570;  §  2641,  p.  1573; 

§  2642,  p.  1573. 
London  z:   King,  §  1485,  p.  884;  §  1486, 

p.  885 

L 


p.  885. 
,ongbottom   &   Sons,   In   re,   §   1845,   p. 

1145. 

ong.  In  re,  §  1095,  p.  619. 
ong  z\    Farmers'    Bk.,   §   1370,   p.    799; 

§   1372,  p.   801;  §   1381,  p.  808;  §  2945, 


L 
Lon 


Lo 


p.   1721. 
mgfield 


Savings    Bk..    § 
1622;  §  2769,   p.  1625. 
Long  z'.  Gump,  §  1147,  p.  677;  §  1885 
1178;   S   1885,    p.    1180. 


2  Rem  B— 51 


2002 


TABLE  OF  CASES. 


Long,  Unitj^pe   Co.  v. 

Loomis   V.    Wallbloni,   §    2237,   p.    1368; 

.§  2766,  p.  1625;  §  2796,  p.  1638. 
Lord,  In  re,  §  2508,  p.  1509. 
Lorde,   In   re,    §   464,   p.    304;    §    680,   p. 

413;   §   681,  p.  413;  §  2754,  p.   1620. 
Lorillard,  In  re,  §  1193,  p.  696;  §  119. 
Lott  V.  Young,  §  63,  p.  68;  §  63,  p.  69. 
Louisville    Trust    Co.    v.    Comingor,    § 
30,  p.  48;  §  250,  p.  190;  §  1612,  p.  979;  § 
1653,  p.  1023;  §  1666,  p.  1031;  §  1666, 
p.    1032;    §    1697,    p.    1047;    §    1698,    p. 
1048;  §  1699,  p.  1050;  §  1822,  p.  1120; 
§  1837,  p.  1130;  §  1840,  p.  1134;  §  1863, 
p.    1159. 
Louisville  Trust  Co.  v.  ]\Iarx,  §  1653,  p. 

1024. 
Love  V.    Export   Storage   Co.,   §   523,  p. 
327;    §    1146,   p.    677;    §    2835,    p.    1656; 
§    2836,    p.    1657;    §    2861,    p.    1670;    § 
3001,   p.   1738. 
Lowenberg  v.  Levine,  §   1627,  p.  993. 
Lowensohn,  In  re,  §  1158,  p.  683. 
Lowenstein,    In    re,    §    2467,    p.    1490;    § 
2502.  p.  1507;   §  2510,  p.   1510;   §   2511, 
p.    1511;    §    2518,    p.    1517;    §    2521,    p. 
1520;  §  2540,  p.  1528;  §  2541,  p.   1529; 
§   2545,   p.   1533;   §  2549,  p.   1536. 
Lowenstein    v.    Henry    McShane    Mfg.' 
Co.,    §    151,    p.    132;    §    203,    p.    166;    § 
221,  p.   176;  §  224,  p.   178. 
Lovirenstein,  U.  S.  v. 
Lowrie,  Lawrence  v. 
Lucas,  Tiffany  v. 

Lucius,  In  re,  §  1022,  p.  570;  §  1026,  p. 
577;  §  1032,  p.  580;  §  1033,  p.  585;  § 
1048,  p.  600;  §  1051,  p.  603;  §  1104,  p. 
628. 
Lucius  V.  Cawthon-Coleman  Co.,  § 
1033,  p.  585;  §  1109,  p.  634;  §  3018,  p. 
1746;  §  3019,  p.  1746. 
Luckenbill,   In  re,  §  972,  p.   545;   §   985, 

p.  549;  §  992,  p.  553;  §  1206,  p.  699. 
Luckhardt,  In  re,  §  95,  p.  92. 
Luckhardt.    Sherman   v. 
Ludowici    Roofing    Tile    Co.    t'.    Penn. 
Inst.,  §  69,  p.  74;  §  262,  p.  196;  §  1150, 
p.  679;  §  1612,  p.  979;  §  1797,  p.  1093; 
§    1885,    p.    1177;    §    1885,    p.    1178;    § 
1885,  p.   1179;  §  1896,  p.  1185;   §  2248, 
p.    1373. 
Ludvigh   v.   Umstadtter,   §   1216,   p.   721. 


Luftig,  In  re,  §  2481,  p.  1499;  §  2527,  p. 

1524;  §  2529,  p.  1524;  §   2814,  p.   1647; 

§   2816,   p.   1648. 
Lukens,  In  re,  §  1207,  p.  700;  §  1248,  p. 

740;  §  1896,  p.  1185. 
Lumber    Co.,    In   re,    §    1241,    p.   736;    § 

1797,  p.  1093;  §   1798,  p.  1098;  §  1807, 


Lumber    Co.  v.  Taylor,  §  1169.  p.   687; 

§  1302,  p.  764;  §  1303,  p.  765;  §  1761,  p. 

1074;  §  1879,  p.   1166;  §   1879,  p.   1167. 
Lynan,  In  re,  §  443,  p.  283. 
Lynch,  In  re,  §  1024,  p.  573;  §  1047,  p. 

598;  §  1048,  p.  599;  §  1076,  p.  612. 
Lynde,  fn  re,  §  1047,  p.  597. 
Lynde  v.   Lynde,   §   683,  p.   415;   §  2731, 

p.  1611. 
Lyon,  In  re,  §  644,  p.  384;  §  827,  p.  480; 

§  1283,  p.   758;  §  1287,  p.  758;   §   1310, 

p.  767;  §  1311,  p.  768;  §  1421,  p.  842. 
MacDonald,    In    re,    §    1144,    p.    675;    § 

1144,  p.   677. 
MacDonald  v.  Tefft-Weller  Co.,  §  17,  p. 

33;  §  52,  p.  63;  §  627,  p.  373. 
MacKellar,   In  re,   §   575,  p.   348;   §   581, 

p.   350;   §   582,  p.   350;  §   895,  p.   510. 

[acX'ichol    Construction   Co.,   In    re, 

84,  p.  84;  §  90,  p.  86;  §  94,  p.  90. 


M 


§ 


O-t,     p.     o-t,     Jj     cw,    p.     uu,     }j     ./-r,     p.     ^^J. 

McAdam,   In   re,   §  994,   p.   554;   §   2522, 

p.  1522;  §  2541,  p.  1531. 
McAfee,  Bradley,  Alderson  &  Co.  v. 
McAleese,  U.  S.  ex  rel.  Scott  v. 
McArdle,  In  re,  §  967,  p.  542;  §  1140,  p. 

668. 
McBride  &  Co.,   In  re,  §  994,  p.   554;   § 

1021,  p.  570;  §  1140,  p.  671;  §  1202,  p. 

698;  §  1796,  p.  1089;  §  1797,  p.  1097; 

§  1873,  p.  1163;  §  1874,  p.  1164;  §  1885, 

p.  1181;  §  1888,  p.  1181;  §  1889,  p. 

1182;  §  1922,  p.  1196. 
McBryde,  In  re,  § 

423;  §  700,  p.  423;  §  958,  p.  536;  § 

1087,  p.  615;  §  2135,  p.  1317;  §  2182,  p. 

1342;  §  2330,  p.  1414;  §  2480,  p.  1497. 
McCall.  In  re,  §  2967,  p.  1728;  §  2984,  p. 

1733;  §  2988,  p.  1735;  §  3011,  p.  1742. 
McCallum,  In  re,  §  723,  p.  436;  §  1033, 

p.  585;  §  1582,  p.  949;  §  1797,  p.  1093; 

§  1798,  p.  1098   "  " 


I,  p.  421;  §  698,  p. 
423;  §  958,  p.  -"^k-  ^ 


1,  p.  949;  §  1797,  p.  1093; 
,  _  )98;  §  1873,  p.  1163;  § 
1883,  p.  1169;  §  1883,  p.  1172;  §  1885, 
p.  1178;  §  2238,  p.  1369. 


TABLE  OF  CASES. 


McCallum  &  ]\IcCallum,  Tn  re,  §  61 
366;  §  735,  p.  440;  §  737,  p.  440;  § 


___,  „  ._-,  p.  440;  §  737,  p.  440;  § 
p.  477;  §  2258,  p.  1383. 
McQ 


7,  p. 
824, 


[J.  '±11,    2    ~~oo,  p.  ±ooo. 
cCartney,  In  re,  §  1027,  p.  577;  § 
p.  577;  §  1100,  p.  626;  §  1429,  p. 
S  1439,  D.  851:  §  1447,  p.  855;  § 


1028, 
p.   848; 


iO; 


P-  ,  „  ,  . 

§  1439,  p.   851;  §   1447,  p.  855;  §   1464, 
p.  871;  §  1601,  p.  966;  §  1663,  p.  10"" 
§    1696,   p.    1046. 
McCarty    v.     Coffin,     §     1022,     p 
§  1038,  p.   592;  §  1041, 

n     r^OS-    8   OQ7J.     n     IfiSfi- 


,     .         70; 

-.„,   5  ^v,x,  p.   592;   §   1047, 

198;  §  2874,  p.  1686;  §  2927,  p.  17^  ' 

n  re,  §  2468,  p.  1491,  §  24 
8     9470      n      1494-     8    2662. 


P- 

McCarty,  I 
p.  1493 


.o,  §  2470,  p.  1494;  §  2662 
1584;  §  2663,  p.  1586;  § 


14. 

'0, 

P- 
:760,  p.   1621. 


io»4;  s  ^bbd,  p.   10 
McCauley,    Desler  v. 
McCauley,   Distler  z'. 
McCauley,  In  re,  §  704,  p. 

p.  1614;  §  2760,  p.  1622. 
McCauley,  Perkins  v. 
McChristal  v.  Clisbee,  §  2754,  p. 
INIcClelland,  Black  z: 
INIcClellan,  Winsor  v. 
McClintock,    In    re,    §    1022, 

1027,  p.   577;  §  1041,  p.  592; 

599;   §   1048,  p.   601;   §    1051 

1052,  p.  603;  §  1054,  p.  604; 

606;   §   1070,  p.   609;   §   1072 

1075,  p.   612. 
McClure,  Mitchell  v. 
McConnell,   In  re,  §   194,  p. 

p.  312. 
McCormick.    In    re,    §    1819,    _ 

1840,  p.  1134;  §   1843,  p.  1140;  §  1850. 

p.    1147;    §    1856,    p.    1154;    §    1856,    p. 

1155;  §  2339,  p.   1419;  §  2649,  p.   1575, 
IcCormick.  Old  Town  Bank,  The  v. 


424;   §   2739, 


1620. 


p.  570;  § 
§  1048,  p. 

p.  603;  § 
§   1059,  p. 

p.   6]0;   § 


159;   §   487, 
p.    Ill 


1155;  §  Ziisy,  p.  i4iy;  §  ao^y,  p.  1575. 
McCormick,  Old  Town  Bank,  Th 
McCourt,  Searchy  z'. 


iVlc<^ourt,   bearchy  z\ 
McCoy,   In  re,  §  758,  p.  450;   §  2258 
1383;   §   2258,   p.    1384. 


8    ziiao,   p.    i.jo-i. 
McCracken  &  McLead,  In  re,  § 


067,  p. 


1283. 

McCracken,  Reeves  v. 
McCrien,  In  re,  §  1547.  p.  925. 
McCullough    V.    Goodheart,    §    1630,    p. 

1001. 
McCutchen,    In    re,  •§    1047,    p.    598;    § 

1047,   p.   599;   §   1080,   p.   613. 
McDaniel    z:    Stroud,    §    824,    p.    477;    § 

826,   p.   479;   §    827,   p.   479;   §    2827,   p. 

1654. 
McDaniel,    Stroud   z-. 


2003 

p.    1618; 
1150,  p.   678;   § 


537. 


McDavid,  Plow  Co.  v. 
McDonald   z'.    Brown,   §    2749 

§  2754,  p.  1620. 
McDonald  v.  Daskan, 

1150,  p.  679;  §   1372,  p.  801 
McDonald,   Frazier  v. 
IMcDonald,  In  re,  §  959,  p. 
McDonald,  Phelps  z'. 
McDonnell,  In  re,  §   1005,  p.  558. 
McDufif,   In  re,   §  2025,  p.  1566. 
McDuff,  Watson  v. 
McElroy,  Penn.   Trust   Co.   v. 
McElwaine,  Jarecki  Mfg.   Co.  v. 
McEwen,  In  re,  §  2257,  p.  1377. 
McFaun,  In  re,  §  2237,  p.  1368;  §  2761, 

p.    1622;    §    2766,    p.    1624;    §    2794,    p. 

1635;  §  2796,  p.  1637;  §  2798,  p.  1641; 

§   2799,  p.   1642. 
McGahan  v.  Anderson,  §  1022,  p.  570;  § 

1026,  p.  577;  §  1035,  p.  587;  §  1037,  p. 

591;   §   1047,  p.   596;   §   1072^4,   p.   611; 

§  1074,  p.  61];  §  1075,  p.  612;  §  1082, 

p.  613;  §  1083,  p.  614;  §  1089,  p.  616; 

§  1111,  p.  634;  §  1819,  p.  1115;  §  1841, 
1842,  p.  1138;  §  2834,  p. 


p.  113 
1656. 
McGee, 


§    132, 
p.   752: 


§    547, 


,   In   re,   §   121,   p   111; 

115;   §   132,   p.    116;    §    1274, 

1300,  p.  763. 
McGill,  Hibberd  v. 
McGill,    In   re,   §   523,   p.   324; 

333;   §   887,  p.  505. 
McGowan   z:    Knittel,    §    174,    p 

179,   p.   150;    §   1353,   p.   791. 
McGowan,  Knittel  v. 
McGuire,  In  re,  §  2278,  p.  1392. 
McGurn,   In  re,  §  2469,  p.  1492;  §  2511, 

p.    1511;    §    2522,    p.    1523;    §    2595,    p. 

1552;  §  2603.  p.  1556;  §  2635,  p.  1571; 


147,  § 


603,  p.  1556;  §  2635,  p.  1571; 
2639,  p.  1572,  §  2655.  p.  1578. 


!   9 
1885 


1655.   p.   1578. 
p.   544. 
p.  1178;  §  1885, 


'cHarry,  In  re,  5 
'cintire.  In  re.  § 
n.   1179. 
Intire,  McNair  v. 
Intire,  Reed  v. 

Intosh,  In  re,  §  1222,  p.  723;  §  1248, 

740;  §  1382,  p.  810. 

ntyre.  In  re,  §  523,  p.  325;'  §  526,  p. 

8;  §  1160,  p.  683;  §  2204,  p.  1357;  § 

1371;  §  2627,  p.  1567;  §  2848, 


M 
^I 
Mc 
P- 

Mc; 

3- 

90 

p 


:41,  p. 
1663. 


2004 


TABLE  OF  CASES. 


P-   990;    § 
1632,  p.  1005;  §  1632,  p. 

972, 
p.  1267; 


McKay,   In    re,    §    131,   p.    11-1;    §   975, 

546;   §   1140,   p.   668;    §    1209,   p.   707 

1265,  p.  745. 
McKay,  Union  Nat'l  Bk.  v. 
McKee,  In  re,  §  1602,  p.  967;  §  1603,  p 

972;   §   1625,  p.   989;   §   1626,         -"~     " 

1628,  p.  ""''•  ^  -"^•^■'^    "    ■■""=•• 

1007. 
McKenna,   In  re,   §  902,  p.   517;   § 

p.  544;  §  2039,  p.  1264;  §  2045,  p.  ; 

§    2047,    p.    1268;    §    2047,    p.    1270. 

2054,  p.   1276;   §  2054,  p.   1277;   §   20 

p.  1280. 
McKenney  v.  Cheney,  §  1032,  p.  580; 

1100,  p.  624;  §  1100,  p.  625;  §  1447, 

855;  §  1464,  p.  871. 
McKenzie,  In  re,  §  99,  p.   96;   §   100, 

98;    §    1025,    p.    575;    §    1117,   p.    639; 

1167,  p.  686;  §  2866,  p.  1682;  §  2882,  p 

1692;  §  2883,  p.   1693;  §  2888,  p.  1697 

§  2912,  p.  1706;  §  2920,  p.  1710;  §  2939, 

p.  1717. 
McKey  v.  Lee,  §  1416,  p.  839;  §  1427,  p. 

846. 
McKinley,  In  re,  §  444,  p.  283. 
McKirrow,  Keyes  v. 
McKittrick  v.   Gaboon,  §  683,  p.  414;   § 

2731,  p.   1611. 
McLam,  In  re,  §  925,  p.  523;  §   1394,  p. 

822;  §  1494,  p.  892. 
McL 


59, 


P- 


P- 


P- 


^aren,  In  re,  §  59,  p.  65;  §  63,  p.  69. 

McLean  v.  '^^ '^  '^"''   -    '■-'-'■  '^  """    - 

515;  §  17 


san  V.  Mayo,  §  896,  p.  511;  §  898,  p. 
■  "  ^"""    -    ^079;  §  1780,  p.  1080;  S 


515;  §  1780,  p.  1079;  §  1780,  p.  1080;  § 

1781,   p.    1080;    §   1784,  p.    1081;   §    1911, 

p.    1192. 
McMahon,  In  re,  §  1796,  p.  1090;  §  1798, 

p.    1098;    §    1807,    p.    1101;    §    1811,    p. 

1109;  §  1811,  p.  1110;  §  1812.  p.  1111; 

§  1832,  p.  1127;  §  1885,  p.  1177;  §  1895, 

p.    1184;    §    2864,    p.    1681;    §    2876,    p. 

1688;   §   2937,  p.    1716. 
McMurtrey  v.   Smith,  §  59,  p.  65;  §  60, 

p.   67;   §   205,  p.   168;   §   1346,  p.   788;  § 

1403,   p.   830;   §    1410,  p.   836. 
McNaboe  v.  Marks,  §  972,  p.  545;  §  975, 

p.   546;   §   1130,  p.   643. 
McNair   v.    Mclntyre,    §    171,   p.    144;    § 

533,  p.  .331;  §   1290,  p.   759;   §   1885,  p. 

1178;  §  1885,  p.  1180;  §  1965,  p.  1223; 

§  1975,  p.  1228;  §  1991,  p.  1233;  §  1992, 

p.  1233;  §  2267,  p.  1387;  §  2268,  p. 

1387. 


McXamara   v.    Helena    Coal    Co.,    §    85, 

p.  84;  §  87,  p.  85;  §  93,  p.   87. 
McNamara,    In    re,    §    2509,    p.    1510;    § 

2544,  p.  1532;  §  2603,  p.  1556;  §  2608, 
p.  1558;  §  2608,  p.  1559;  §  2608,  p. 
1560. 

McNamara,   Ketcham   v. 

McNeal,  Latimer  v. 

McNeil  V.  U.  S.,  §  2316,  p.  1410;  §  2321, 

p.    1411;    §    2329,    p.    1413;    §    2491,    p. 

1504;  §  2492,  p.   1505;  §  2536,  p.   1527; 

§   2608,   p    1559. 
McNicholas,   Montgomery  v. 
McNulty  V.   Feingold,   §   355,   p.   239;    § 

1652,  p.   1021;  §   1685,   p.  1036;   §   1690, 

p.    1041;    §    1691,    p.    1042;    §    2874,    p. 

1687. 
McNulty   V.   Wiesen,    §    1216,   p.    721;    § 

1219,  p.  723;  §  1494,  p.  891;  §   1495,  p. 

893. 
McPherson  v.  Cox,  §  897,  p.  513. 
McWalters,  Collins  v. 
Mabrie  &  Brown,  In  re,  §  887,  p.  505. 
Mace  V.  Wells,  §  644,  p.  384;  §  2741,  p. 

1615. 
Machin  &  Brown,  In  re,  §  887,  p.  507;  § 

892,   p.    509. 
Machine   Co.,   Rumsey  z\ 
Machine  &  Conveyor  Co.,  In  re,  §  167, 

p.  141. 
Mackel   z'.    Rochester,    §    636,   p.    377;    § 

1558,  p.  933;  §  2733,  p.  1613;  §  2747,  p. 

1617;  §  2748,  p.  1617;  §  2749,  p.   1618; 
.     §   2750,  p.   1618. 
MacKenzie,    In    re,    §    2544,    p.    1532;    § 

2545,  p.    1533;   §   2549,  p.    1536. 
Mackey,  In  re,  §  48,  p.  61;  §  49,  p.  61;  § 

95,  p.  92;  §  207,  p.   171;  §  213,  p.  173; 

§   479,  p.   309;   §   486,  p.   311;   §  489,   p. 

312;   §   508,   p.   321;   §   2763,  p.   1624;   § 

2764,  p.   1624;  §  2765,  p.   1624;   §  2776, 

p.   1627. 
Mackey  &  Co.,  In  re,  §  479,  p.  309. 
Macon  Grocery  Co.,  Beach  v. 
Macon   Lumber    Co.,    In   re,   §    1628.   p. 

994;  §  1629,  p.  997;  §  1632,  p.   1007;  § 

1633,  p.  1007;  §  1633,  p.  1008. 
Madden,  Bryan   v. 
Madden,  In  re,  §  19,  p.  36;  §  954,  p.  536; 

§  956,  p.  536;  §  1115,  p.  636. 
Magid-Hope    Silk    Mfg.    Co.,    In    re,    § 

18,  p.  36;  §  33,  p.  54;  §   312,  p.  221. 


TABLE  OF  CASES. 


2005 


Maguire,   Riggin  v. 

Maher,  In  re,  §  2469,  p.  1493;  §  2496,  p 

1505;  §  2511,  p.  1511. 
Mahler,   In   re,   §  627,  p.   373;   §   640    '^ 

381;    §    653,    p.    397;    §    653, 


,    ,,    --J,    p.    397;    §    653,    p.    398 
656,   p.   399;   §  657,  p.   ^^f^ 


381;    §    653 
65 
Mali 


p. 

;  § 


400. 


oney  v.  Ward,  §  69,  p.  74;  §  2431,  ] 

1470. 
Maisner   v.    Maisner,    §    683,    p.    415; 

2756,   p.   1620. 
Makley,  Joseph  v. 
Malcolne,    Grimes   v. 
Malino,   In   re,   §   571,   p.   347;   §   578,   ; 

349;  §  768,  p.  456;  §  793,  p.  464;  §  81 

p.  473;  §  863,  p.   496;  §  864,  p.   496; 


P 

865 


865,   p.    497. 
Mallin    f.    Wenhani,    §    451,    p.    300;    § 

1150,  p.  679;  §  2673,  p.  1590;  §  2678,  p. 

1592;    §    2678,    p.    1593. 
Mallin,  Wenham  v. 
Mallory,   In   re,  §   898,  p.  515;   §  901,   p. 

516. 
Mammoth   Pine   Lumber   Co.,    In   re,   § 

207,   p.   170;    §    213,   p.    173;   §   2011,   p. 

1249;  §   2031,  p.   1260;   §  2103,  p.   1299. 
Mandel,  In  re,  §  1314,  p.  771;  §  1326,  p. 

777;  §  1370,  p.  797. 
Mandell  &  Co.  v.  Levy,  §  2714,  p.  1606; 

§    2718,    p.    1607;    §    2719,    p.    1607;    § 

2720,  p.   1607. 
Mangan,   In   re,  §   884,  p.   504;   §   895,  p. 

510. 
Manhattan  Ice,  Co.,  In  re,  §  707,  p.  425; 

§  707,  p.  426. 
Manheim,    Broadway   Trust    Co.    v. 
]\Ianheim,   Webb  z'. 
IMann,  Traders'  Ins.  Co.  t-. 
Manning,   In  re,  §  1041,  p.  593;   §   1047, 

p.  595;  §  1047,  p.  596;  §  1055,  p.  605; 

§  1075,  p.  612;  §  1077,  p.  612;  §  1089,  p. 

616;  §  1095,  p.  621;  §  1295,  p.  760;  § 

1320,  p.  775;  §  1321,  p.  775;  §  1324,  p. 

776;  §  1611,  p.  978;  §  1612,  p.  979; 

§  1652,  p.  1022;  §  1666,  p.  1031;  §  1680, 

p.   1034. 
Manning  v.  Keyes,  §  680,  p.  413. 
Manufacturing   Co.   v.   Cox.,   §    1 


^eyes,  §  680,  p.  413. 
g   Co.   V.    Cox.,    §    1840,   p. 
1134. 
Manufacturing  Co.  v.   Mitchell,  §  1429, 

p.  848;  §  1464,  p.  871. 
Maples,  In  re,  §  41,  p.  57;  §  441,  p.  282; 
§  2470,  p.  1494;  §  2760,  p.  1622. 


Marble   Co.  v.   Grant,   §   1582,   p.  949;   § 

1582,  p.  956;  §  1582,  p.  957;  §  1600,  p. 

966;  §  2690,  p.  1597;  §  2709,  p.  1604. 
Marckson  v.  Heaney,  §  1705,  p.   1052. 
Marco  Ganj-,  In  re,  §  1169,  p.  687. 
Marcus,   In   re,   §  464,   p.  304;   §   470,  p. 

306;  §  625,  p.  371;  §  691,  p.  419;  §  692, 

p.  420;   §  705,  p.  424;  §  2693,  p.   1598; 

§    2731,    p.    1610;    §    2735,    p.    1613;    § 

2737,  p.  1614. 
Marden    z:    Phillips,    §    1195,    p.    696,    § 

1230,  p.   732. 
Marine  Construction  &  Dry  Dock  Co., 

In  re,   §  90,  p.   86;  §   1258,  p.  741. 
}.Iarine    ]\Iachine    &    Conveyor    Co.,    In 

re,   §   33,  p.    54;   §   35,  p.    54;   §    167,   p. 

141. 
Marks  Bros.,  In  re,  §  221,  p.  176;  §  224, 

p.  178. 
Marks   &   Garson,   In   re,  §   643,   p.   383; 

§  645,  p.  387. 
[Marks,  McNabor  v. 
Marks   v.   Upton,   §   656,   p.   399. 
Margson,  &  Spalding  v.  Heaney,  §  1112, 

p.  635. 
Marquette,  In  re,  §  971,  p.  544;  §  1047, 

p.    595. 
Marsh  Chambers,  IJ.  S.  v. 
Marsh  v.  Heaton,  §  383,  p.  252;  §  1955, 

p.   1218. 
:Marsh,   In    re,   §   998,   p.   556;   §    1883,   p. 

1169;  §   1883,  p.  1171;  §  2522,  p.  1521; 

§  2639,  p.   1572;   §  2861,  p.  1672. 
Marshal  Field  &  Co.  v.   Wolf  &  Bros. 

Dry    Goods    Co.,    §    2412,    p.    1454;    § 

2838,    p.    1657. 
Marshal    z:    Knox,    §    1655,    p.    1029;    § 

2864,    p.    1682. 
Marshall   Paper    Co.,   In    re,    §    1104,   p. 

628;   §   1510,   p.  902;   §   1524,   p.   906;   § 

1632,  p.   1007;  §  2200,  p.  1353;  §  2419, 

p.    1464;    §    2446,    p.    1478;    §    2468,    p. 

1491;  §  2469,  p.  1492;  §  2662,  p.  1584; 

§  2663,  p.  1585. 
Marshall,  Philmon  v. 
Marshall,    Steiner  v. 
Marter,  In  re,  §  2864,  p.  1682. 
Martin    v.    Bigelow,    §    447,    p.    295;    § 

1343,  p.  787;  §  1363,  p.  793;  §  1763,  p. 

1075. 


2006 


TABLE  OF  CASES. 


Martin-Borgeson   Co.,   In   re,  §   2011,  p. 

1248;  §  2045,  p.  1266;  §  2118,  p.   1306; 

§  2119,  p.  1307. 
Martin  v.  Hulen,  §  121,  p.  Ill;  §  123,  p. 

112;  §  1314,  p.  771. 
Martin,  In  re,  §  527,  p.  329;  §  1519,  p. 

904;   §   1521,  p.  905;  §    1523,  p.   906;   § 

1732,  p.   1066;   §  1901,  p.   1188;   §   1918, 

p.  1195;  §  2385,  p.  1441. 
Martin,  Toof  v. 
Martin-Vernon    Music    Co.,    In    re,    § 

1228,  p.  727,  §   1228,  p.   730. 
Marvin  v.  Anderson,   §   1343,  p.   78 

1734,  p.  1067. 
Marx,   In   re,   §   1555, 


787: 


[arx.  In  re,  §  1555,  p.  930;  §  1557,  p. 
933;  §  2544,  p.  1544;  §  2641,  p.  1573; 
§  2642,  p.  1573. 


M 


Larx,  Louisville  Trust  Co.  v. 
[ason,  In  re,  §  19,  p.  36;  §  30,  p.  48;  „ 
198,  p.  164;  §  433,  p.  278;  §  435,  p. 
278;  §  436,  p.  279;  §  449,  p.  296;  §  450, 
p.  296;  §  450,  p.  297;  §  613,  p.  364;  § 
2255,  p.  1375;  §  2261,  p.  1385;  §  22?" 
p.  1395;  §  2478,  p.  1495. 


180, 


ason,   Pewabic   Min   Co 
Mason  v.   St.   Arbans   Furniture   Co.,   § 

801,  p.  468. 
Mason,  Smith  v. 
Mason  v.  Wolkowich,  §  20,  p.  37;  §903. 

p.  517;  §  1801,  p.  1099;  §  1804,  p.  1100; 

§  1962,  p.  1221;  §  2054,  p.  1277;  §  2055, 

p.    1278;    §    2856,    p.    1668;    §    2864,    p. 

1679;  §  2876,  p.  1688;  §  2877,  p.  1689; 

§  2918,  D.  1709:  5  2924.  o.  1713:  §  3009, 


J  aave,  p.  it)»»;  §  zstt,  p.  1689; 
.  p.  1709;  §  2924,  p.  1713;  § 

Masonic  Savings  Bank,  Stucky  v. 
Massey,   New  York  Co.   Nat'l  Bk.  v. 
Mather,  Anderson  v. 
Mather  v.   Coe,  In  re,  §  139,  p.  122;   § 

150,   p.    131;    §   250,   p.   190;    §    355,   p. 

238;    §    356,    p.    239;    §    361,    p.    243;    § 

1590,        ''  """"    -    ^^"" 

]\Iath 

p.  331. 
Matney,    Bank    of    Dearborn    v. 
Matson,  In  re,  §  48,  p.  61;  §  95,  p.  91. 
Matthews  v.   Hardt,   §   1211,   p.   709;    § 

1235,  p.  734;  §  1334,  p.  782;  §  1370,  p. 

798;   §   1379,   p.   804;   §    1380,   p.    $08. 
Matthews,   In   re,  §   290,  p.  209;   §   1154, 

p.  681;  §  1696,  p.  1045;  §  1888,  p.  1181; 


),  p.  963;  §  1828,  p.  112 

ews.    In   re,    §    532,   p.    331;    §    533, 
^^1 


§    1965,    p.    1223;    §    1975,    p.    1228;    § 

2023,  p.  1257;  §  2024,  p.  1258. 
Matthews,  Piatt,  Assignee  v. 
Matthews   &   Rosenkranz,   In  re,   §   644, 

p.  384;  §   1285,  p.   758;   §   1310,  p.   767; 

§   1311,   p.   768. 
Mattox,  Mohr  &  Sons  v. 

TVToiinrl       In     i-<=      S     Ofi^      n       II 


Maund,  In  re,  §  265,  p.  197 

Mauran   v.    Carpet   Lining   Co.,    §    1429, 

p.  847;   §   1439,  p.  850;  §   1446,  p.   855; 

§  1472,  p.   874;  §   1602,  p.  967;  §   1603, 


^  ,  ^.   _   ,  „     ,  p.  967;  §  1603, 

p.  973;  §  1605,  p.  975;  §  1616,  p.  983; 
§  1620,  p.  986;  §  162 


5;  §  1616,  p. 

■-,  p.  989;  §  1626, 


lyer  v.   Mellman,  §  1632,  p.  1005. 
aver.  In  re,  §  539,  p.  332;  §  1022,  p. 
570;  §  1024,  p.  572;  §  1024,  p.  575;  § 
1025,  p.  576;  §  1027,  p.  577;  §  1089,  p. 


p.  990;  §  1634,  p.  1009. 
May,  In  re,  §  653,  p.  398;  §  967,  p.  541; 

§  968,  p.  542;  §  972,  p.  544;  §  1G70,  p. 

1032;  §  2.261,  p.  1385;  §  2635,  p.  1571; 

§  2639,  p.  1572. 
Mayer  v.   Hellman,  §  1632,  p.  100c 
Mayer,  Ir  --  ''  """  -  --"■''-"' 

51 

10^  .  . 

616;  §  1099,  p.  624;  §  1565,  p.  940;  § 

1819,  p.   1115;  §  1836,  p.   1129;  §   1842, 

p.    1139;    §    1842,    p.    1140;    §    1844,    p. 

1141;  §  1845,  p.   1142;  §  1850,  p.   1147; 

§    1854,    p.    1153;    §    1856,    p.    1154;       § 

1859,  p.   1157;  §  2043,  p.   1265;  §  2045, 

p.    1266;    §    2048,    p.    1271;    §    2050,    p. 

1274;   §  2078,  p.  1288;  §  2085,  p.  1290; 

§    2086,    p.    1291;    §    2087,    p.    1292;    § 

2087,  p.  1293;  §  2172,  p.  1339;  §  2177, 

p.    1341;    §    2330,    p.    1414;    §    2339,    p. 

1419. 
Mayer,  Stern  z\ 
Maynard,  Arnold  v. 
Mayo,  Clinton  v. 
Mayo,  McLean  v. 
Mays,  In  re,  §   1614,   p.  981. 
May  z:  Tenney,  §  146,  p.   128. 
Medarsi-Vine    Carriage    Co.,    In    re,    § 

1180,  p.  691;  §  1297,  p.  762. 
Meis,    In   re,   §   1898,  p.   1187;   §   1996,  p. 

1235;  §  2075,  p.   1286. 
Mellen,  In  re,  §  1540,  p.  918;  §  1538,  p. 

918;   §   1542,   p.  919;   §   1555,   p.   930;   § 

1561,  p.  938. 
Mencke   v.    Rosenberg,    §    1439,    p.    850; 

§  1464,  p.  871;  §  1482,  p.  883. 
indelson,  In  re,  §  320,  p.  223;  §  2521, 
1520. 


Me 
P 


p.  1520. 
Mendenhall,   In   re,   §   1547,   p.   925. 


TABLE  OF  CASES. 


2C07 


Mercantile   Agency,   In   re,   §  94,   p.   90; 

§    2893,    p.    1699. 
Mercantile    Agency,    Zugalla   v. 
Mercantile  Co.,  Gray  v. 
Mercantile  Co.,  In  re,  §  823,  p.   477;  § 

2008,  p.   1246;  §  2011,  p.   1247;  §  2045, 

p.    1267;    §    2048,    p.    1271;    §    2055,    p. 

1278;  §  2055,  p.'  1279;  §  2057,  p.  1279; 

§    2069,    p.    1284;    §    2071,   p.    1285. 
Mercantile  Nat'l  Bk.,  Frank  v. 
Mercantile    National    Bank,    Hudson   v. 
Mercantile    Nat'l    Bk.,    Trustee    v. 
Merchants'  Bank  v.  Thomas,  §  671,  p. 

407;    §    2240,   p.   1370;   §   2241,  p.   1370. 
Merchants'    Ins.    Co.,    In    re,    §    132,    p. 

115. 


1013,  p.  563;  §  1015,  p.  565;  §  1016,  p. 
566;  §1128,  p.  643;  §  1133,  p.  646;  § 
1134,  p.  646;  §  1215,  p.  718;  1215,  p^ 
719;  §  1267,  p.  748;  §  1582,  p.  949; 
§  1781,  p.  1080;  §  1782,  p.  1080;  § 
1797,  p.  1097;  §  1798,  p.  1098;  §  1814, 
p.  1112;  §  1855,  -  '^  ^""^   - 

1  -I  oc  .  fi  -I  r»i  1   « 


p.  iiia;  §  i»oo,  p.  1154;  §  1901,  p. 
1188;  §  1911,  p.  1192;  §  1913,  p.  1192; 
S  1913.  n.  1193:  S  191 


M 


±10. 

[erchants'  Nat'l  Bk.  v.  Cole,  §  132,  p. 
117;  §  173,  p.  147;  §  1366,  p.  794;  § 
2893,  p.  1699;  §  3009,  p.  1742. 

lercur.  In  re,  §  59,  p.  65;  §  65,  p.  71; 
§  69,  p.  73;  §  69,  p.  74;  §  207,  p.  171;  § 
217,  p.  175;  §  261,  p.  195;  §  262,  p.  196; 
§  264,  p.  197;  §  272,  p.  201;  §  289,  p. 
208;  §  858,  p.  491;  §  2237,  p.  1368;  S 
2248,  p.  1373;  §  2614,  p.  1563. 


±ioo;  8  lyii,  p.  ij.y;.,,  ^  xi/xd,  y.  xx^/w, 
§  1913,  p.  1193;  §  1916,  p.  1194;  § 
2695,  p.  1598;  §  2873,  p.  1686;  §-2879, 
p.  1689;  §  "2935,  p.  1716;  §  2938,  p. 
1717. 

Mertens  &  Co.,  In  re,  §  632,  p.  375;  § 
636,  p.  378;  §  717,  p.  430;  §  722,  p. 
436;  §  1780,  p'.  1079;  §  1814,  p.  1112. 

Messengill,  In  re,  §  574,  p.  348. 
Metcalf  V.   Barker,  §  143,  p.  125;  §  1429, 

p.  847;  §  1439,  p.  851;  §  1444,  p.  854; 

§   1448,  p.   857;   §  1449,  p.  858;  §  145L 

p.  861;   §   1455,  p.  863;   §  1456,  p.  864; 
I       §  1489,  p.  .886;  §  1581,  p.  948;  §  1582 

p.  950;  §1593,  p.  963.;  §  1800,  p.  1099 

I      §  1901,  p.  1188;  §   1902,  p.   1190. 

Metcalf  V.  Watertown,  §  414,  p.  268. 

Metropolitan  Co.,  In  re,  §   1265,  p.  746. 

Tvr       j-^-u    T     ..     ff  "--         nn    s  ino<    ^     Metropolitan    Store    &    Saloon    Fixture 
JNIeredith,  In  re,  §  7oo,  p.  447;  §  1034,  p.  I       ^      ^ 

587;  §  1104,  p.  628;  §  1106,  p.  632.  !       ^o.,      n   re,   §    1212,  p.    712;   §   1222,  p. 

.         ,  %,  „  724;  §  1222,  p.  725;   §   1230,  p.  732. 

Meriwether  v.  Garrett.  §  2160,  p.  1333.  ^  "^  ^  ^ 


]\Ieredith,  In  re,  §  755, 

leriTv^einer  v.   \jarreLt,   §  2160,  p.   1333 
Meriweather,    In    re,    §    1022, 
1041.  o.  592:  S  1042.  o.  593 


.    P-    570;    § 
p.  593;  §  1047,  p. 


leriwether  v.  Garrett,  § 
leriweather.    In    re.    S    1 

1041,  p.  592;  §  1 

596. 
Mero,  In  re,  §  46, 

§   243,  p.  187;  § 

192;  §  258,  p.  194t^  jj  .iox,  p.  j.»j,  s -"»> 

p.  199;  §  1157,  p.  683;  §  1437,  p.  850. 

errill  v.  Hussey,  §  974^  p.  546;  §  1216, 

p.  720. 


lero,   in  re,  §  'to,  p.   59;  §   139,  p.   12~, 

§   243,  p.  187;  §  245,  p.   188;   §  257,  p. 

192;  §  258,  p.  194;  §  261,  p.  195;  §269, 

p.  199;  §  1157    "    ««''•  8  1^^7    "    «-" 
Me       ' 

p.   .-„. 
Merrill,  Watson  v. 
Merrow.  In  re,  §  1436,  p.  849;  §  1489,  p. 

886;  §  1489,  p.  888;   §   1492,  p.   890. 

:erry  v.  Jones,  §  150,  p.  130;  §  1586,  p. 
.    961. 
Mersman,  In  re,  §   1379,  p.  804;  §  1721, 

p.   1061;  §   1722,  p.  1061,  §  1722,  p.  1062. 
Mertens,    Hiscock   v. 
Mertens,  In  re,  ^  365,  p.  244;  §   636,  p. 

377;    §    704,    p.    424;    §    715,    p.    429;    § 

721,   p.    435;    §    756,    p.    448;    §    756,   p. 

449;    §    760,    p.    451;    §    761,    p.    453; 

§     761,     p.     454;     §     1006,     p.     559;     § 


M 


>^-^,   s   x.^.^„,   p.    ..^^,    s   1230,   p.   732. 
Metzger  Toy   &   Novelty   Co.,   In   re, 

1282,  p.   757;  §   1312,  p.  769;   §   1332,  p. 

781;  §   1335,  p.   782. 
Meuer,  In  re,  §  2583,  p.  1549;  §  2586,  p. 

1551. 
Meyer,   Chem.   Nat.    Bank  v. 
Mej^er   &    Dickinson,    In    re,   §    1173,    p. 

688;  §  1180,  p.  691;  §  1186,  p.  694. 
Meyer,   In   re,   §   59,  p.   65;   §   61,   p.   67; 

§  64,  p.  69;  §   64,  p.  70;  §  65,  p.  71;  § 

171,  p.   145;   §   1287,   p.   758;   §   1311,  p. 

768;  §  1421,  p.  843;  §  2969,  p.  1729; 

§  2231,  p.  1366;  §  2253,  p.  1374;  § 

2473,  p.  1494;  §  2484,  p.  1502;  §  2485, 

p.  1503. 


2008 


TABLE  OF  CASES. 


n2 


2824, 
963; 

4;  § 

1, 


2816,  p.  1648;  §  2821,  p.  1649;  § 

p.  1650;  §  1591,  p.  963;  §  1593,  p. 
•  §  1634,  p.  1009. 
Meyers  v.   Josephson,  §  936,  p. 

1005,  p.  558;  §  1012,  p.  562. 
Mfg.  Co.  V.   Spoke  &  Nipple  Co 

p.  115;  §  177,  p.  149. 
Michie,  In  re,  §  1653,  p.  1023;  §  1653, 

p.  a024;  §  1666,  p.  1032;  §  1698,  p. 

1047;  §  1698,  p.  1048;  §  1865,  p.  1161; 

§  1865,  p.  1162. 
Michel,  In  re,  §  2078,  p.  1287;  §  2086, 

p.  1291. 
Milbury  Co.,  In  re,  §  1602,  p.  967;  § 

1634,  p.  1008. 
Milgraum  v.    O.st,  §  2587,  p.  1551;  § 

2590,  p.  1551;  §  2592,  p.  1552;  §  2603, 

p.  1557;  §  2604,  p.  1557;  §  2608,  p. 

1559;  §  2608,  p.  1560;  §  2609,  p.  1561; 

§  2851,  p.  1663;  §  2851,  p.  1664;  § 

2858,  p.  1669. 
Milk  Co.,  In  re,  §  1128,  p.  643;  §  1134, 

p.  646;  §  1134,  p.  647;  §  1377,  p.  803;  § 

1845,  p.   1144;   §   1850,  p.  1147;   §   1851, 

p.   1149;   §   1863,  p.   1159. 
Miller      &      Bennett,      Horner-Laylord 

Co.   V. 
Miller   &  Brown,  In  re,  §   1140,   p.  669; 

§  1147,   p.  677;  §   1228,  p.   727;  §   1228, 

p.   731. 
Miller,  Crosby  v. 
Miller,  Deland  v. 
Miller    Electrical    ^Maintenance    Co.,    In 

re,  §  976,  p.  547;  §  977,  p.  547. 
Miller,  In  re,  §  98,  p.  95;  §  134,  p.  118; 

§   138,  p.   122;   §   139,  p.   122,   §   141,   p. 

124;    §    233,    p.    182;    §    267,    p.    198;    § 

539,   p.   332;    §   799,   p.    467;    §   1088,   p. 

616;  §  1196,  p.  696;  §  1819,  p.  1115;   § 

1836,  p.   1128;  §   1838,  p.  1130;   §   1839, 

p.    1133;    §    1901,    p.    1188;    §    1905,    p. 

1190;  §  1913,  p.  1193;  §  2335,  p.  1418; 

§  2336,  p.  1418;  §  2420,  p.  1464;  §  2420, 

p.    1465;    §    2421,    p.    1465;    §    2469,    p. 

1492;  §  2474,   p.   1494;   §  2553,  p.   1539. 
Miller,  Schuler  v. 
Miller,  Tuxbury  v. 
Milliken,  Bond  v. 
Milliken,  Stevenson  v. 
Milliken-Tomlinson,    Stevenson   v. 


Milling  Co.,  In  re,  §  13,  p.  28;  §  671,  p. 

407;    §   1627,  p.   992;    §    1627,   p.   993. 
Mills,   Aurrol   v. 
Mills,   In  re,  §   2255,  p.   1375;   §   2256,   p, 

1376;  §  2257,  p.  1377.  ; 

Milner,   Bracken  z'. 
Milw.   Xat'l   Bk.,   Doyle  v. 
IMilw.   Nat.   Bk.,   Happke  and   Doyle  v. 
Miner,    In   re,   §    200,    p.    16*;    §    205,   p. 
.  168;  §  206,  p.  170;  §  224,  p.  178;  §  610, 

p.  362;  §  798,  p.  466;   §   2541,  p.   1529; 

§  2541,  p.  1530;  §  2542,  p.  1531;  §  2551, 

p.    1538;    §    2845,    p.    1662;    §    2861,    p. 

1670. 
]\Iingo   Valley   Creamery   Ass'n,    In   re, 

§  113,  p.  108;  §  118,  p.     110;  §  185,  p.  153. 
^Mining  Co.,  Rogers  v. 


p.  305. 


xMining  Co.,  Rogers  v. 

Minon  z\  Van  Nostrand,  §  465,  . 

^Mirror  &  Beveling  Co.,  In  re,  §  707,  p. 

426. 
Mitchell,  In  re,  §  655,  p.  399;  §  656,  p. 

399;    §    992,   p.    552;    §    1160,    p.    683;    § 

1954,  p.  1218;  §  1955,  p.  1218;  §  2045,  p. 

1267;  §  2054,  p.  1276;  §  2059,  p.  1280; 

§   2204,   p.    1356. 
Mitchell  2'.   McClure,   §   1652,   p.   1023. 
Mitchell,    Manufacturing   Co.   v. 
Mitchell   V.    Mitchell,   §   1061,   p.    606;   § 

1207,  p.  701;  §  1222,  p.  725;  §  1258,  p. 

741;   §  1261,  p.  743;   §  1730,  p.   1064. 

_      ,   p.   674. 
w^>^...o,   .II  re,  §   622,  p.  367;   §  723,  p. 
436;    §   734,   p.   440. 


741;  §  1261,  p.  743;  §  1730, 
Mitchell,  Peck  Lumber  Mfg. 
Mitchell  r.  Winslow,  §  1144, 
Moebins,   In  re,  §  622,  p.  367; 

436;    §   734,   p.   440. 
[oench.  In  re,  §  36,  p.  55;  §  87,  p.  85; 

§   163,   p.   139;   §   167,  p.   141;   §   168,  p. 

142;    §    170,  ^p.    143;    §    216,    p.    174;    § 

97,  p.  93;   §  317,  p.  222;  §  320,  p.  223. 


97,  p.  93;   §  317,  p.  222;  §  320,  p.  223. 
Mohr  &  Sons  v.  Mattox;  §  1459,  p.  865; 

§  1464,  p.   871;  §  1467,  p.   872;   §   1468, 

p.  873;  §  1478,  p.  880;  §  1479,  p.  882. 
Moir,  Ames  z'. 

Mollan  z'.  Torrance,  §  95,  p.  91. 
Monroe,  In  re,  §  2761,  p.  1622. 
Montague,  In  re,  §  1379,  p.  804. 
Montgomery   v.    McNicholas,    §    444,    p. 

288. 

oody  v.   Cole,  §  1750,  p.  1072;  §  1842, 

p.  1139;  §  1843,  p.  1141;  §  1844,  p. 

1141;  §  1851,  p.  1151;  §  1856,  p.  1154; 

§  1859,  p.  1157. 

idy  z'.  Huntley,  §  2280,  p.  1395. 


M 


Mooc 


TABLE  OF  CASES. 


2009 


380,  p. 

■3;  § 


893; 


Moody,  In  re,  §  356,  p.  239;  § 

251;  §  529,  p.  330;  §  1316,  p.    ,  „ 
1409,  p.  836;  §  1410,  p.  836;  §  1410, 
p.  837;  §  1494,  p.  892;  f   -" 
§  1496,  p.  893;  §  1494,  p.  ■.^^,   ^  ^.^«, 
p.  895;  §  1582,  p.  949;  §  1653,  p.  1024; 

■  §  1797,  p.  1096;  §  1820,  p.  1117;  § 
1873,  p.  1163;  §  1885,  p.  1180;  §  1888, 
p.  1181;  §  1889,  p.  1182;"  §  1918,  p. 
1195;  §  2872,  p.  1685;  §  2874,  p.  1687. 

J\Ioody  V.  Port  Clyde  Development  Co., 
§  1629,  p.  996. 
core,  Clevenger  v. 

oore  v.  Green,  §  46,  p.  59;  §  1154,  p. 
681;  §  1155,  p.  681;  §  1155,  p.  682;  § 
1216,  p.  720;  §  1266,  p.  747;  §  1267,  p. 
747;  §  1267,  p.  748;  §  1269,  p.  749;  '^ 
1441,  p.  851;  §  1441,  p.  853;  §  1446, 
855;  §  1797,  p.  1097;  §  1885,  p.  117 
§  1897,  p.  1186;  §  2885,  p.  1695. 


M 
M 


p.   1097;   §   1885,   p.   1177; 

8  ±ovi,  p.  ±i86;  §  2885,  p.  1695 
Moore,  v.  Hinds,  §  1690,  p.  1042 
Moore,    Hinds  v. 
Moore,    In    re,    §    683,    p.    414;    §    683, 

p.     415;     §     1032,     p.     579;      §     1034, 

p.    586;    §    1037,    p.    591;    §    1041,    p. 

593;   §   1047,  p.   598;   §    1104,  p.   628;   § 

1489,  p.  888;  §  1822,  p.  1119;  §  1885,  p. 

1178;  §  1885,  p.  1180;   §  2482,  p.  1499; 

§  2508,  p.  1509;  §  2731,  p.  1611. 
Morales,  In  re,  §  232,  p.   181;  §  707,  p. 

426;  §  710,  p.  427. 
Moran  v.   King,  §   1034,  p.   586;   §   1063, 

p.  607;  §   1070,  p.  610. 
Morey    Mercantile     Co.    v.    Schiffer,    § 

1296,  p.  761;  §  1418,  p.  840;  §  1419,  p. 

841;    §    1427,   p.    846. 
Morgan,   Cookingham  z'. 
Morgan,   In  re,  §  2544,  p.  1532;   §  2549, 

p.    1535;    §    2613,    p.    1563;    §    2615,    p. 

1564. 


^Morgan,     Jewclrj^     Co.,      Des     IMoines 

Bank  z'. 
Morgan  v.   Nat'l  Bk;,  §   1140,  p.   668;  § 

1269,    p.    748;    §    1314,    p.    771;    §    1370, 

p.    796;    §    1885,  '^    -""" 

"  p.   1695. 

628, 


^.     ...,,    ^    .^^5,    p.    1178;    §    1896,    p 

1185;   §   2885,  p.   1695. 
Morgan    v.   Wordell,    § 

630,  p.  374;  §  643,  p.  383;  §  645,  p.  387; 

§   1170,  p.   687:  §  1174,  p.  689;   §  1177, 

p.   689;   §   1177,  p.  690;  §  1179,  p.   690. 
Morris  Arc  Lamp  Co.,  In  re,  §  976,  p. 

547;   §   977,  p.   547. 


Morris,   In   re,   §   348,   p.   235;   §   352,   p. 

236;   §    417,   p.    269;    §    1504,    p.    900;    § 

2045,  p.   1267;   §  2089,   p.   1294;  §   2098, 

p.    1298;    §    2835,    p.    1442. 
Morris    Mercantile    Co.,    Burnett    v. 
Morrison,  In  re,  §   1047,  p.   598;   §  2794, 

p.    1634;    §    2794,    p.    1635;    §    2797,    p. 

1641;  §  2798,  p.  1642;  §   2799,  p.   1642. 
Morrow,  v.  Dudley  &  Co.,  §  846,  p.  488; 

§  1690,  p.   1042 


S    iu;/u,    p.     iu-t„. 

orrovv    &    Co.    John,    Ii 
p.  773. 


n  re,  §  1315, 

Morrow,  In  re.  §  1423,  p.  844;  §  1425, 
p.  845;  §  2490,  p.  1504;  §  2511,  p.  1511; 
2522,  p.  1522. 
rse  V.   Godfrey,  §  444,  p. 

Mo*''^'^     /?r     Rncrprc     7)      Ts^niifn 
P- 


p.  283. 


Morse  v.  Uodtrey,  §  444,  p.  2: 
orse  &  Rogers  v.  Kaufma 
o.    1617:    S    2754.'  o.    1619: 


;e    &   Rogers   v.    Kaufman,    §   2748, 
^.    1617;    §    2754,' p.    1619;    §    2783,    p. 
1628;    §    2784,   p.   1629. 
Mors 


1628;    §    2784,   p.   1629. 
Morse,   White    Mountain    Paper    Co.    v. 
jMorss   V.    Franklin   Coal    Co.,   §   404,   p. 

263;   §   408,  p.    265. 
Alorton   Boarding  Siables,   In   re,  §   94, 

p.   88. 
Morton,   In  re,   §  887,  p.   508. 
Morton  Trust  Co.,  Gove  t'. 
Moses  V.  Pond,  §  2248,  p.  1373;  §  2250, 

p.  1373. 
Mosier,    In   re,   §   972,   p.   544;   §   972,   p. 

545;    §    1047,   p.    596;    §   2236;    p.    1367; 

§  2238,  p.  1369;  §  2238,  p.  1370;  §  2254, 

p.    1374;    §    2258,    p.    1384;    §    2269,    p. 

1387;   §   2271,   p.   1390. 
Moss,  Equitable  Loan  &  Security  Co.  v. 
j\Iotor    Vehicle     Co.    t'.     Oak    Leather 
'^-    §    260,    p.    195;    § 
p.    198;    §    1352 
';   §   1353,  p.  791. 

ott 


itor    Vehicle     Co 
Co.,    §    174,    p.    147 
262,   p.    196;    §    267 
790;   §    1353,   p.   791. 
ott    7'.    Wissler    Mfg.    Co.,    §    2205.    p. 
1357. 

ott  V.  Wissler  Min.  Co..  §  11*54,  p.  680; 
§  1155,  p.  681;  §  1159,  p.  683;  §  1161, 
p.  684. 
Mottley,  Smith  z\ 


Mottley,  Smith  z\ 

Moulton    z'.    Coburn,    §    201,    p.    165; 

202,    p.    165;    §    211,    p.    172;    §    212, 

172;    §    221,    p.    176;    §    222,    p.    176; 

224,   p.    178. 
Moyer,    In   re,   §   135,   p.    118;   §    1336, 

783. 
Moyses,  Hanover,  Nat'l  Bk.  v. 
Moyses,   National  Bank  v. 


P- 


2010 


TABLE  OF  CASES. 


Mt.  ^lorris  Bk.,  Upson  z\ 

Mudd,  In  re,  §  2488,  p.  1503;  §  2499,  p. 

1506;  §  2595,  p.  1552;  §  2596,  p.  1553; 

§  2602,  p.  1555;  §  2603,  p.  1556;  § 

2603,  p.  1557;  §  2621,  p.  1564. 
Mueller  v.   Bruss,  §  1208,  p.  705;  §  1217, 

p.  722;  §  1653,  p.  1024;  §  1687,  p. 

1038;  §  1731, 'p.  1065;  §  1732,  p.  1065. 
Mueller  v.   Goerlitz,  §  2761,  p.'  1622;  § 

2768,  p.  1625. 
Mueller,  In  re,  §  2864,  p.  1680;  §  2867, 

p.  1683;  §  2879,  p.  1689;  §  2881, 

p.  1690;  §  2887,  p.  1696;  §  2901, 

p.  1702;  §  2912,  p.  1706;  §  2918,  p. 

:i7]0. 
Mueller  v.   Nugent,  §  523,  p.  327;  §  540, 

p.  332;  §  1215,  p.  718;  §  1653,  p.  1024; 

§  1819,  p.  1115;  §  1822,  p.  1119;  ^ 

1836,  p.  1129;  §  1863,  p.  1159;  §  1916, 

p.  1194;  §  2881,  p.  1690;  §  2942,  p. 

1720. 
Muhlenberg  Courtty  v.    Dyer;  §  2921., 

p.  1711. 
Muhlhauser  Co.,  In  re,  §  1898,  p.  1187; 

§  1959,  p.  1220;  §  2103,  p.  :•  >99;  § 

2011,  p.  1249;  §  2140,  p.  1319;  §  2186, 

p.  1344;  §  2200,  p.  1358. 
Mullaney,  Schellenberg  v. 
Mullen,  In  re,  §  548,  p.  334;  §  1022,  p. 

570;  §  1041,  p.  592;  §  1042,  p.  593;  § 

1047,  p.  597;  j;  .11^0,  p.  668;  §  1207,  p. 

704;  §  1208,  p.  ':u6;  §  1215,  p.  718;  § 

1216,  p.  719;  S  ;  S--"!.  p.  1660. 
MuUer,  In  re,  §  22,  p.  38;  §  214,  p.  173. 
Muller,  Small  v. 
Mulligan,  In  re,  §  1882,  p.  1168;  §  1883, 

p.  1169;  §  1883,  p.  1170;  §  1883,  p. 

1171;  §  1883,  p.  1172;  §  1884,  p.  1173; 

§  1884,,  p.  1176. 
Mulock  V.   Byrnes,  §  2785,  p.  1630. 
Muncie  Pulp  Co.,  In  re,  §  392,  p.  256;  § 

1150,  p.  678;  §  1673,  p.  1033;  §  1805,  p. 

1100;  §  1807,  p.  1108;  §  1812,  p.  1111; 

§  1818,  p.  1114;  §  1821,  p.  1118;  §  1822, 

p.  1119;  §  1823,  p.  1120;  §  1824,  p. 

1120;  §  1863,  p.  1159. 
Mundle,  In  re,  §  1267,  p.  747;  §  1807,  p. 

1107;  §  1811.  p.  1110;  §  1813,  p.  1111; 

§  1820,  p.  1117;  §  1876,  p.  1165. 
Munroe  v.   Dewey,  §  972,  p.  545;  §  975, 

p.   546;  §  1265,  p.  745. 


Murdock,   In   re,   §   2508,   p.   1509. 

^lurgatroyd,    Dusar    f. 

^lurphj'    Barbee    Shoe    Co.,    In    re,    § 

1169,   p.   687;    §   1879,   p.    1166;   §   1879, 

p.  1167. 
:\Iurphe3%  In  re,  §  531,  p.  330;  §  548,  p. 

334. 
Murray,  In  re,  §  72,  p.   77;  §   74,  p.   78; 

§  310,  p.  220. 
Murray   v.   Joseph,    §    1750,    p.    1072;    § 

1775,  p.   1077;  §  1850,  p.  1149. 
Muskoka  Lumber   Co.,   In   re,  §   718,  p. 

434;    §    723,    p.    436;    §    725,    p.    437;    § 

726,   p.   437;   §   2761,   p.    1622. 
Musliner,    Frank    z\ 
Mussey,   In  re,  §   2468,  p.   1491;  §   2469, 

p.    1492;    §    2662,    p.    1584;    §    2663,    p. 

1585;    §    2665,    p.    1587. 
Mutual  Life  Ins.   Co.,   Griffin  v. 
Mut.   Life  Ins.  Co.  of  X.  Y.,  Griffin  v. 
Mutual    Mercantile    Agency,    In    re,    § 

92,  p.  87;  §  94,  p.  90;  §  167,  p.  141;  § 
,319,   p.   223;   §  2156,   p.   1331. 
]\Iutual    Reserve     Fund    Life    Ass'n    v. 

Beatty,    §    2714,    p.    1606;    §    2715,    p. 

1606;   §    2718,  p.    1607. 
Myers  &  Charni,  In  re,  §  617,  p!  366;  § 

1180,   p.   691;    §   1180,   p.   692. 
]\Iyers,  In  re,  §   1047,  p.  596;   §  1047,  p. 

597;   §   1885,   p.    1178;   §   188.5,   p.   1179; 

§   2204,   p.    1356. 
^Ij^ers,   Plummer  v. 
Nachman,  In  re,  §  1557,  p.  932;  §  1558, 

p.   934;  §  1559,  p.- 937;   §   1561,   p.  938. 
Nash,  Peterson  v. 
Nassau,  In  re,  §  1366,  p.  794;  §  1410,  p. 

837;  §  1412,  p.  838. 
Nathan,  Norcross  v. 
Nathanson,    In    re,    §    2613,    p.    1563;    § 

2615,  p.   1564;   §  2621,   p.   1564. 
National   Bank  v.  Arend.  §   159,  p.   137. 
National  Bank,  Conboy  r. 
National   Bank  z:    Gettinger,   §   1331,   p. 

779. 
National   Bank,   Grant  f. 
National    Bank    v.    Hobbs.    §    1453,    p. 

862;   §  1582,  p.  949;    §   1591,  p.   963;   § 

1593,   p.   964;   §   1750,   p.   1072. 
National    Bank    v.    Moses,    §    1455,    p. 

863;   §   1489,  p.   888;   §   1582,  p.   949;   § 

1593,    p.   964. 


TABLE  OF  CASES. 


2011 


National   Bank  f.   ]\Ioyses,  §  43,  p.  58; 

§    73,    p.    77;    §    102,    p.    102;    §    164,    p. 

139;    §    2432,   p.    1470. 
National    Bank    of    Canton,    In    re,    § 


s^ational    Bank    of    Canton,    In 
1258,  p.  742;  §  1261,  p.  743. 

National  Bank  of  Chattanooga  ?7.  R^ 
Iron  Co.,  §  1207,  p.  700. 

National   Bank,   Sandusky  v. 

National    Bank    v.    Sawyer,    §    1510, 
902. 


ome 


P- 


National   Bk.,    In   re,   §    1212,   p.   710 
1214,    p.    715      ''    '"""  "'" 


1258,    p.    742;    §    1896, 


I.    1186;    §    2900,    p.    1702;    §    2901, 
702;  §  2923,  p.  1713. 
Nat'l    Bk.,    i^licklinger   v. 
Nat'l  Bk.,  Laundy  v. 
Nat'l  Bk.,  ]\Iorgan  v. 
Nat'l   Bk.,   Steinhardt  v. 
Nat'l   Bk.,   Siiffel  v. 
Nat'l    Bk.,    Zartman    v. 
Nat'l  Bedstead  Mfg.  Co.,  Singer  v. 
National     Lead     Co.,     Columbia     Iron 

Works  V. 
National    Lead    Co.,    Iron    Works    v. 
National    Mercantile   Agency,    In    re,    § 

395,  p.  258;  §  1709,  p.  1056;  §  2011,  p. 

1247;  §  2014,  p.  1250. 
National   Valve    Co.,    In   re,   §    1238,   p. 

735;  §   1371,  p.   800;   §  1384,  p.  813. 
Nave-McCord    Co.,    Stevens    v. 
Nave,    Norcross   v. 
Naylor  Mfg.  Co.,  In  re,  §  1149, 

§  1228,  p.  731. 
Neal  V.  Clark,  §  2788,  p.  1632. 
Neal,  Ex  parte,  §  641,  p.  382. 
Neal,   In   re,   §    1052,   p.   603; 

604;   §   1054,   p.   604;   8    10.'^.'; 

1066,    p.    608;    §    1070 

p.   610;   §   1095,  p.  621 
Ncasmith,  In  re,  §  404,  p.  263;  §  405,  p. 

264;    §    408,    p.    265;    §    411,    p.    266;    § 

2894,  p.  1699;  §  2894  -  ^~"" 


p.  678; 


:,  p.  604;  §  1055,  p.  604;  § 

«;  §  1070,  p.  609;  §  1071, 

5,  p.  621, 


p.  1700. 


2894,  p.  1699;  §  2894,  p.  1' 

Neely,  In  re,  §  1488,  p.  885;  §  1585,  p. 
958;  §  1646,  p.  1012;  §  1650,  p.  1015; 
§  1874,  p.  1164;  §  1882,  p.  1168;  § 
2415,  p.  1460;  §  2466,  p.  1490;  §  2482, 
p.  1499;  §  2541,  p.  1530;  §  2552,  p. 
1538;  §  2558,  p.l540;  §  2571,  p.  1544; 
§  2572,  p.  1546;  §  2573,  p.  1546;  § 
2574,  p.  1547;  §  2576,  p.  1547. 

Neil,  Union  Nat'l  Bk.  v. 


Neimann,    In    re,    §    798,    p.    467;    §   967, 

p.    540;   §   9C8,   p.    542;    §    1047,   p.    596. 
Nelson,    In    re,   §    252,   p.      191;   §    257, 

p.  192;  §   277,  p.  202;   §   280,  p.  204;   § 

1047,  p.  595;  §  1705,  p.  1052. 
Nelson,    Powers    Dry   Goods    Co.   v. 
Nelson,  Wilson  Bros.  v. 
Nesbit,    Blake   v. 
Neustadter  v.  Chicago  Dry  Goods  Co., 

§   213,  p.   173;   §  237,  p.   185;   §   322,   p. 

224;    §    419,    p.    271;    §    420,    p.    271;    § 

444,  p.  285. 
New,    In    re,    §    645,    p.    387;    §    2741,    p. 

1615. 
Newberry,   In  re,  §  1653,  p.  1024. 
Newell,  In  re,  §  683,  p.  415. 
New  England  Piano  Co.,  In  re,  §  533, 

p.    331;     §    1489,    p.     888;    §     1796,    p. 

1089;   §  1797,  p.  1093;  §  1885,  p.   1177; 

§    1965,    p.    1224;    §    1971,    p.    1226;    § 

1975-,    p.    1228. 
Newland  v.    Zodikow,   §    1735,   p.   1068; 

§  1761,  p.  1074. 
Newton,    In   re,    §    99,    p.    96;    §    100,    p. 

97;    §    870,    p.    498;    §    1167,    p.    686;    § 

2300,  p.   1401;  §   2302,  p.   1402;  §  2303, 

p.    1402;    §    2304,    p.    1402;    §    2309,    p. 

1403;  §  2310,  p.  1404;  §  2314,  p.   1405. 
New   York   Building   &   Loan   Banking 

Co.,  In   re,  §  94,  p.  89. 
New  York   Co.   Nat'l  Bk.  v.   Massey,  § 

1173,  p.  688;   §   1179,  p.   690;   §  1180,  p. 

691;   §   1297,  p.   762;   §   1329,   p.   778;   § 

1341,   p.   785. 
New    York    Economical    Printing    Co., 

In   re,   §   1144,   p.   673;   §   1235,   p.   734; 

§    2993,    p.    1736;    §    2995,    p.    1737;    § 

2997,  p.   1737. 
New  York  Exch.  Bk.,  Pond  Trustee  v. 
New   York  Water   Co.,   In  re,  §   83,  p. 

82. 
New    York    Wheel    Works,    In    re,    § 

1864,   p.   1159;   §   1865,  p.   1161. 
Niagara   Contracting    Co.,   In   re,   §    84, 

p.  83;  §  90,  p.  86;  §  433,  p.  277;  §  436,  p. 

279. 
Nice  &  Schreiber,  In  re,  §  863,  p.  496; 

§    869,   p.   498. 
Nicholas,   In  re,   §  1144,   p.   675;   §   1146, 

p.   677;   §   1295,  p.   760;   §   1320,  p.   774. 
Nichols    &    Lemon,   Thornton   v. 


2012 


N 


TABLE  OF  CASES. 


p.    373;   §    798, 


Co. 


P- 
;  § 


N 


ickerson,  In  re,   §  627 

p.   466. 
Ninan,    In    re,    §    2045,   p.    1267;    §    2047 

p.  1270. 
Ximnio,   Richter   z\ 
Xixon    V.    Fidelity    &    Deposit 

348,   p.   235;   §  351,  p.   236. 
Xixon,    In    re,    §    348,    p.    235;    §    355, 

239;  §   416,  p.   268;   §   1653,   p.   1024 

1669,   p.   1032. 
X.  J.  Fire  Ins.  Co.,  Fuller  v. 
Xoel,  In  re,  §  716,  p.  429;  §  717,  p.  430; 

§   717,  p.   431;   §  717,  p.   432;   §   717,  p. 

433;    §    999,   p.    556;    §    1140,   p.    668;    § 

1212,  p.  711;  §  1222,  p.  725;  §  1248,  p. 

740;  §  1265,  p.  746;  §  1314,  p.  771;  § 

1320,  p.  775;  §  1582,  p.  949;  §  1698, 

p.  1048;  §  1796,  p.  1090;  §  1797,  p. 

1C92;  §  1807,  p.  1105;  §  1809,  p.  1109; 

§  1811,  p.  1109;  §  1811,  p.  1110;  § 

1816,.  p.  1113;  §  1885,  p.  1178;  §  1885, 

p.  1180;  §  1889,  p.  1183;  §  1980,  p. 

1229. 

orcross.  In  re,  §  205,  p.  167;  §  233,  p. 

182;  §  1346,  p.  788. 
Xorcross  z\   Xathan,  §  24,  p.  39;  §  1207, 

p.  700;  §  1653,  p.  1024. 
Xorcross  v.    Xave,  §  2960,  p.  1725;  § 

2981,  p.  1733;  §  2984,  p.  1733. 
Xorden,  Barnes  Mfg.  Co.  v. 
Norfolk  &  W.  Ry.  Co.  v.    Graham,  § 

628,  p.  374;  §  719,  p.  435;  §  733,  p. 

439;  §  1170,  p.  687;  §  1177,  p.  690;  § 

1178,    p.    690. 
Norlin,  Dodge  v. 

Xorrington  v.  Wright,   §   687,   p.   417. 
Xorseworthy,     Ray    v. 
Xorth    Carolina    Car    Co,,    In    re,    §    20, 

p.  37;  §  1883,  p.  1169;  §  1883,  p.  1171; 

§    2135,    p.    1318;    §    2183,    p.    1342;    § 

2183,   p.   1343;    §   2184,  p.    1344. 
Xorth   State  Lumber  Co.,   Dressel  v. 
Xorth,  Trustee  v.  Taylor,  §  1216,  p.  721. 
Xorthern    Counties    of    Eng.    Fire    Ins. 

Co.,   In   re,   §   674,   p.  412. 
Xorthern    Pac.    Ry.   Co.,   Eitch,  v. 
Xorthrop,  In  re,  §  527,  p.  329;  §  528,  p. 

330;   §   1473,  p.   877;  §   1479,  p.   881;   § 

1836,  p.   1129;  §  1901,  p.  1188;  §  1902, 

p.  1190. 
Northwest  Fixture  Co.  v.  Kilbourne  & 

Clark.  S  708.  o.  426. 


,  uritivvesi    x-ixLure    v^u 
Clark,  §  708,  p.  426. 


Xorton  z\  Boyd,  §  1679,  p.  1034. 
Xorton,  In  re,  §  312,  p.  220. 
Xounnan,  In  re,  §  672,  p.  407. 
Xovak,    In   re,   §    215,   p.    174;    §   227,   p. 

179;    §    798,   p.    466;    §    1047,   p.    596;    § 

1197,    p.    697. 
Xovelty  Co.,   Rumsey  v. 
Xoyes    Bros.,    In    re,    §    756,    p.    449;    § 

757,    p.    450;    §    2861,    p.    1671;    §    3009, 

p.    1741. 
Xoyes,    Howe   i'. 
Xoyses,  In  re,  §  2054,  p.  1276. 
Nugent,  In  re,  §  541,  p.  332;  §   1822,  p. 

1119;    §    1836,    p.    1129. 
Xugent,   Mueller  v. 
Nunn,   In  re,   §   1048,   p.   599;   §   1051,  p. 

603;   §   1070,   p.   609;   §   1078,  p.   612;    § 

1087,  p.   615. 
Xutting  v.   Ashcroft,   §   59,   p.   67. 
Xye,  In  re,  §  1047,  p.   596. 
X.  Y.  Life  Ins.  Co.,  Gould  v. 
X.   Y.   &  N.  J.   Ice  Lines,   In  re.  §   82, 

p.  81;  §  83,  p.  82,  §   87,  p.  85,  §  94,  p. 

90. 
X.   Y.   &  Westch.   Water   Co.,   In  re,   § 

81,   p.    80;    §    83,   p.    83;    §   85,   p.    84;    § 

87,   p.   85;   §   94,   p.    89. 
Oak  Leather  Co.,  Motor  Vehicle  po.  v. 
O'Beirne,   Bullis  z: 
O'Brien,    Philpott   z: 
Oconee  Mill  Co.,  In  re,  §  1154,  p.  681; 

§  2202,  p.  1353. 
O'Connell,    In    re,    §    2045,    p.    1266;    § 

2092,  p.  1295;  §  2304,  p.  1402;  §  2881, 

p.    1691;    §    2929,    p.    1715;    §    2931,    p. 

1715;  §  2942,  p.  1720;  §  2948,  p.  1722; 

§    2950,    p.    1723;    §    2951,    p.    1723;    § 

2952,  p.   1723;   §   2954,  p.   1724;  §  2955, 

p.    1724;    ■§    2962,    p.    1726;    §    3002,    p. 

1738;    §   3007,   p.   1740. 


O 


i/.3s;    8   6VUi,   p.    it-i 
O'Connor,   Carpenter  Bros.  z'. 
O'Connor,  In  re,  §  1036,  p.  590;  §  1169, 

p.  687;  §  1464,  p.  871;  §  1879,  p.  1166; 

§  2842,  p.   1661;  §  2861,  p.   1670. 
I'Dell  V.  Boyden,  §  964,  p.   539;  §  967, 

p.   540;   §   968,   p.   542;    §   969,   p.    542; 

§  1674,  p.  1033;  §  1796,  p.  1091;  § 

1797,  p.  1093;  §  1798,  p.  1098;  §  1805, 

p.  1100;  §  1807,  p.  1102;  §  1807,  p. 

1105;  §  1807,  p.  1107;  §  1812,  p.  1111; 

§  1822,  p.  1120;  §  1835,  p.  1128;  §  1885, 

p.  1178;  §  1885,  p.  1179;  §  1901,  p. 


TABLE  OF  CASKS. 


2013 


643, 
766; 


1188;  §  2864,  p.  1679;  §  2870,  p.  1684; 

§    2875,    p.    1687;    §    2876,    p.    1688;    § 

2890,  p.  1697. 
Odell  V.  Wootten,  §  1511,  p.  902. 
Oderkirk,  In  re,  §  1089,  p.  616. 
O'Donnell,  In  re,  §  122,  p.  Ill;  § 

p.   383;   §   644,   p.   385;   §   1303,   p. 

§    1310,  p.   767. 
O'Dwyer,    Chatfield   v. 
O'Fallon,    In   re,   §   1954,   p.   1218. 
Off  V.  Hakes,  §  1283,  p.  758;  §  1303, 

765;   §   1396,  p.   825;   §   1407,  p.  834;   § 

1690,  p.   1041;  §   1725,  p.   1063;   §   1728, 

p.   1064. 
O'Gara,   In  re,   §   2521,   p.   1520;   §   2648, 

p.    1575;    §    2649,   p.    1575. 
Ogilvie,  Biele  v. 
Ogilvie,    In    re,    §    1022,    p.    570;    §    1024, 

p.   574;  §  1032,  p.   578;   §   1034,  p.  585; 

§  1041,  p.  592;  §  1048,  p.  599;  §  1077,  p. 


P- 


p.   58 

§  1041,  p.  592;  §  1048,  p.  599;  §  1077,  p. 

612;   §   1095,  p.   620;   §   1104,  p.   628;   § 

1106,  p.  632. 
Ogles,    In   re,    §    136,    p.    119;    §    250,    p. 

190;   §   573,  p.   348;   §   1819,   p.   1115;    § 

1840,  p.  1134;  §   1842,  p.   1140;   §   1845, 

p.  1142;  §  2018,  p.  1254. 
O'Gorman,   Burns  v. 
Oil  Well  Supply  Co.  v.   Hall,   §   404.  p. 

263;  §  405,  p.  264. 
Old  Town  Bank,  The  v.  McCormick,  § 

1625,  p.  989;  §  1627,  p.  991;  §  1630,  p. 

998;  §  1630,  p.  1000. 
Oleson,  Christopherson  v. 
Oleson,  In  re,  §  1025,  p.  575;  §  1047,  p. 

595;  §  2806,  p.  1644;  §  2815,  p.  1647; 

§  2815,  p.  1648;  §  2824,  p.  1650. 
Olewine,  In  re,  §  967,  p.  541;  §  968, 

p.  542. 
Oliver  v.    Hilgers,  §  1736,  p.  1068. 
Oliver,  In  re,  §  539,  p.  332;  §  993,  p. 

553;  §  1150,  p.  679;  §  1427,  p.  846;  § 

1819,  p.   1115;  §  1836,  p.   1128;   §   1837, 

p.    1130;    §    1838,    p.    1130;    §    1883,    p. 

1169;  §  1883,  p.   1172;  §  2806,  p.   1644; 

§    2815,    p.    1647;    §    2816,    p.    1648;    § 

2822,  p.   1649;  §  2823,  p.  1650. 
Olman,   In  re,  §  2387,  p.  1443. 
Olney  v.  Tanner,  §  2702,   p.   1601. 
Omsley    v.    Cobin,    §    2785,    p.    1630. 
O'Neal,    Ex    parte,    §    2330,    p.    1414;    § 

2330,  p.   1416;  §  2332,  p.   1417;   §  2343. 

p.    1419;    §    2967,    p.    1728;    §    3019,    p. 

1746. 


Oppenheimer,  In  re,  §  24,  p.  39;  §  770, 

p.    456;    §    771,    p.    458;    §    772,    p.    459; 

§    2011,    p.    1248;    §    2041,    p.    1264;    § 

2044,  p.   1266;   §  2045,  p.  1267;  §  2047, 

p.    1270;    §    2048,    p.    1272;    §    2054,    p. 

1277. 
Orcutt    Co.    V.    Green,    §    26,    p.    40;    § 

729,    p.    438;    §    921,    p.    522. 
Order   of  the   Red   Cross,    Foxhever  v. 
Orem,   Devries  v. 

Oriental  Society,  In  re,  §  94,  p.  88. 
Ornian,   In   re,   §   563,   p.   340;   §   563,  p. 

341;   §   858,  p.   492. 
Osborn   v.    Fender,    §    1631,   p.    1003. 
Osborne,   In  re,  §   1047,  p.   597;   §   1047, 

p.   598;  §   1095,  p.  619;  §   1095,  p.   621; 

§    2535,    p.    1526;    §    2596,    p.    1554;    § 

2612,  p.   1562;   §   2613,  p.   1563;   §  2615, 

p.    1564;    §    2654,    p.    1577;    §    2918,    p. 

1709. 
Osborne  v.   Perkins,   §  2502,  p.   1507;   § 

2521,  p.  1519;   §  2612,  p.   1562;   §  2634, 

p.    1569;    §    2918,    p.    1709;    §    3002,    p. 

1738;   §  3009,  p.   1741. 
Osnian   v.    Galbraith    Admr.,    §    072,    p. 

544;   §   972,   p.   545.. 
Ost,    Milgraum   v. 
Ostrander,  In  re,  §  2759,  p.   1621. 
Otis,  Hutchinson  v. 
Ott,  Doroshaw  v. 
Ott  V.  Doroshow,  §  1750,  p.  1072. 
Ott,  In  re,  §  2154,  p.  1330. 
Otto,   In  re,   §   2521,  p.   1520;   §   2541,   p. 

1529. 
Ottoman,  In  re,  §  2794,  p.   1635. 
Overman,   Cobb  v. 
Overstreet,    In    re,    §    1026,    p.    577;    § 

1047,  p.  597;  §  1087,  p.  615, 
Overton,  In  re,  §  875,  p.  500. 
Owen   V.   Brown,   §    142,   p.    125;    §    143, 

p.    125;   §   143,  p.   126;    §   1448,    p.    857; 

§  1451,  p.  861;  §   1453,  p.  862;  §   1455. 

p.   863;   §   1458,  p.  865. 
Owens  V.  Bruce,  §  1959,  p.  1220. 
Owings,   In  re,  §  29,  p.  45;   §  33,  p.   53; 

§   1038,  p.   592;   §  1039,  p.  592;  §  1705, 

p.    1051;    §    1706,    p.    1054;    §    1707,    p. 

1054. 
Oxford    Iron    Co.    v.    Slafter,    §    131,    p. 

114. 
Oyster  &  Fish  Co.,  In  re,  §  94,  p.  88. 
Pacific   Coast  Warehouse   Co.,   In   re,   § 

94,  p.   89. 


2014 


TABLE  OF  CASES. 


L618: 


Pa 
P 


Packer  v.  Whit,  §  2921,  p.  1712. 
Packer   v.   Whittier,   §   2748,   p.    1 

2749,    p.    1618. 
Padgett  V.  Lawrence,  §  114,  p.  109. 
Page,  Blanche,  In  re,  §  1840,  p.  1134. 
Page,   Dokken  v. 
Page  V.  Edmunds,  §  964,  p.  539;  §  967, 

p.    540;   §   968,   p.    542;    §    1022,  p.    570; 

§  1043,  p.  594. 

age  V.  Rogers,  §  2041,  p.  1264;  §  2045, 

p.    1267;    §    2046,    p.    1268;    §    20-^8,    p. 

1271;  §  2054,  p.  1276. 
Page,  Rogers  v. 
Paige,  In  re,  §  26,  p.  41;  §  327,  p.  225; 

§  333,  p.  227. 
Paine  v.  Caldwell,  §  1569,  p.  942. 
Paine,   In  re,  §  23,  p.  38;  §  723,  p.  436; 

§  908,  p.  519;  §   1791,  p.  1083;   §  2300, 

p.    1401;    §    2301,    p.    1402;    §    2303,    p. 

1402;  §  2305,  p.  1402;  §  2306,  p.  1403; 

§    2307,    p.    1403;    §    2312,    p.    1404;    § 

2311,   p.    1404. 
Palmer  v.   Husse}%   §   2785,   p.   1630. 
Palmer,   In  re,   §   2481,   p.   1498;   §   2814, 

p.   1647. 
Pancoast,  In  re,  §.614,  p.  365. 
Paper   Co.   v.   Goembel,   §   1352,   p.   790; 


115. 


Parsons  z:  Topliff,  §  132,  p. 
Pattee,  In  re,  §  1614,  p.  980. 
Patten  v.  Carley,  §  1489,  p.  886;  §  1489, 

p.    888;    §    1640,    p.    1011;    §    1645,    p. 

1012.  • 


1012.  • 
Patterson,   In  re,  §  672,  p.   407;   §  2533, 

p.    1526;    §    2596,    p.    1553;    §    2597,    p. 

1554;   §  2608,  p.  1558;  §   2620,  p.  1564, 
Patterson  &  Co.,  In  re  §   1169,   p.   687; 

§   1879,  p.   1165. 
Patterson,   Shultz  v. 
Pattson,  Shesler  v. 
Patty-Joiner    Co.   v.    Cummins,    § 

p.  982;  §  1629,  p.  997;  §  16c 

§  1632,  p.  1006;  §  1634,  p.  

Pauly,  In  re,  §  585,  p.  352;  §  624,  p. 

368;  §  1614,  p.  980;  §  1614,  p.  981. 

n^i-r^-r,     r,       Q/-r.ff   S  1  f;9J.   r.   007-  S  1774 


1206, 


aper  v^o.  v.   ijoemoei, 

§  1409,  p.  835;  §  1409,  p.  836 
Paper  Co.,  In  re,  §  1147,  p.  677 

p.  699. 

Paret  v.   Ticknor,  §  2395,  p.  1448. 
Parish,  In  re,  §  1130,  p.  643;  §  2523,  p. 

1523;  §  2596,  p.  1553;  §  2603,  p.  1556. 
Park,  In  re,  §  1076,  p.  612;  §  1098,  p. 

623;  §  1099,  p.  624. 
Parker  v   Black,  §  1314,  p.  771;  §  1385, 

p.  815;  §  1399,  p.  827;  §  1405,  p.  832; 

§    1725,    p.    1063;    §    1729,    p.    1064. 
Parker,    In    re,    §    1047,   p.    595;    §    201], 

p.    1249;    §    2421,    p.    1465;    §    2490,    p. 

1504. 
Parker,   Sheldon  t'. 
Parmelee   Library,   In  re,  §  94,  p.   89. 
Parmenter    Mfg.    Co.    v.    Hamilton,    § 

1625,  p.  989;  §  1626,  p.  991;  §  1628,  p. 

996;  §  1629,  p.  997;   §  1631,  p.   1003. 
Parmenter  Mfg.   Co.  v.   Stoever,   §  135, 

p.   119;   §   143,  p.   125;   §   143,   p.   126. 
Parr,  Wilson  v. 
Parschen,   In   re,   §  99,   p.   96;   §   100,   p. 

97;  §   1025,  p.  576;   §  1167,  p.   686. 
Parsons,  Smith  v. 


1615, 
p.  1005; 
1009. 


368;  §  1614,  p.  y»u;  § ,  ^.  

Paxton  V.   Scott,  §  1524,  p.  907;  §  1774, 

p.  1077;  §  2508,  p.  1509;  §  2415,  p. 

1459;  §  2647,  p.  1574;  §  2656,  p.  1578; 

§  2668,  p.  1588;  §  2673,  p.  1590. 
Payne,  In  re,  §  2078,  p.  1287. 
Peacock,  In  re,  §  2469,  p.  1492;  §  2470. 

p.  1493;  §  2595,  p.  1553;  §  2603,  p. 

1555. 
Pearlman,  Title  &  Trust  Co.  v. 
Pearson,  In  re,  §  1317,  p.  774;  §  1325, 

p.  776;  §  1837,  p.  1130;  §  1838,  p. 

1130;  §  1839,  p.  1132. 
Pease,  In  re,  §  105,  p.  104;  §  109,  p. 

107;  §  112,  p.  108;  §  113,  p.  108;  § 

177,  p.  148;  §  682,  p.  413;  §  682,  p. 

413;  §  682,  p.  414;  §  951,  p.  535;  § 

1126,  p.  642;  §  1128,  p.  643;  §  1133,  p. 

644;  §  1133,  p.  646;  §  1135,  p.  648; 

§  1216,  p.  721;  §  1282,  p.  757;  §  1314, 

p.  771;  §  1410,  D.  836;  §  1448.  p.  857; 


§ 

p.  1377. 
Peasley,  In  re,  §  1140,  p.  670;  §  1147,  p. 

677;   §  1505,  p.  901. 
Peck  V.   Connell,  §   1405,  p.   832,  §   1478, 

p.  881;  §  1764,  p.  1075. 
Peck,      In      re,      §      2535,     p.      "'"''«•     ^ 

2591,     p.     1552;     §     2596, 

2602,     p.     1555;     §■   2603, 


p- 


1526; 
15; 


1555;     §.    2603,     p.     155(j;     § 

,  p.  1558;  §  2608,  p.   1559;   §  2608, 

p.    1560;    §    2608,    n.    1.161:    S    2614. 


,    „       ju3,    p.    1561;    §    2614,    p. 
1563;  §   2621,  p.   1565;   §  2627,  p.  1567. 
Peck  V.  Jenness,  §  1582,  p.  950: 


TABI<E  OF  CASES. 


2015 


Peck   Lumber   Alfg.    Co.  v.   Mitchell,   § 

1455,  p.  863;  §  1458,  p.  865;  §   1464,  p. 

871. 
Peiser,    In    re,    §    1474,   p.    877;    §    1705, 

p.    1051;    §    1707,    p.    1054;    §    1709,    p. 

1055;  §  1866,  p.   1162;  §   1912,  p.   1192. 
Pekin   Plow   Co.,   In   re,   §   19,  p.   36;   § 

1212,   p.    710;   §   1230,   p.    732. 
Peltasohn,    In    re,    §    1819,    p.    1115. 
Pennewell,   In   re,  §   653,  p.   397;   §   666, 

p.   406;   §  2730,  p.   1610. 
Penn.     Inst.,     Ludowici     Roofing     Tile 

Co.  V. 
Penn.  Trust  Co.,  First  National  Bankz'. 
Penn.    Trust    Co.    v.    McElroy,    §    1510, 

p.   902;   §   1511,  p.  903. 
Penna.  Trust  Co.,  Wilson  v. 
Pennsylvania  Trust   Co.,   Fry  v. 
Penzansky,  In  re,  §  51,  p.  63. 
People    V.    Erlanger,    §    464,    p.    304;    § 

465,  p.  305. 
People  V.   Swarts,  §   1558,  p.   934. 
People's  Bank  v.  Brown,  §  1549,  p.  926; 

§   1550,  p.  926;  §   1551,  p.  927;   §   1566, 

p.  941. 
People's   Nat'l  Bank,   Crooks  v. 
Pepperdine  v.   Bk.   of  Seymour,   §  444, 

p.   283;   §  447,  p.  295,  §  777,  p.  460;   § 

778,  p.  460;   §  1389,  p.   820;   §   1455,  p. 

863;   §   1459,  p.   865. 
Pepperdine  v.  Headley,  §  1653,  p.  1024. 
Perkins,   In  re,  §  943,  p.  525. 
Perkins  v.  McCauley,  §  1653,  p.  1023;  § 

1653,   p.    1024. 
Perkins,   Osborne  v. 
Perley   &   Hays,    In   re,   §    59,   p.    66;    § 

60,  p.  67;  §   m,  p.   145. 
Perrin,  In  re,  §  131,  p.  114. 
Persons,    Brown    v. 
Peter  Paul   Book  Co.,  In  re,   §   167,  p. 

141;   §   1614,   p.   981. 
Peters   v.    Hartman. 
Peters,   In  re,  §  1542,  p.  919. 
Peterson,   In  re,  §   1047,  p.   594;   §   1098. 

p.  623;  §  1099,  p.  624;  §  2483,  p.  1502; 

§   2556,  p.  1540;  §  2558,  p.  1540. 
Peterson    v.    Nash,    §    1296,    p.    762;    § 

1331,    p.    780;    §    1385,    p.    816;    §    1416, 

p.   839;   §   1418,  p.  840;  §  1419,  p.  841; 

§   1427,   p.   846;   §    2984,   p.    1733. 
Pettee,  In  re,  §  2014,  p.  1250. 
Pettingill,    In   re,   §   617,   p.    366;    §   674, 

p.  410;  §  689,  p.  417. 


Pettingill  &  Co.,  In  re,  §  526,  p.  328; 
§  629,  p.  374;  §  6?2,  p.  375;  §  640,  p. 
381;  §  643,  p.  383;  §  650,  p.  390;  § 
651,  p.  390;  §  652,  p.  393;  §  653,  p.  396; 
§  653,  p.  398;  §  672,  p.  407;  §  707,  p. 
425;  §  721,  p.  435;  §  723,  p.  436;  §  724, 
p.  437;  §  725,  p.  437;  §  735,  p.  440; 
§  801,  p.  468;  §  804,  p.  470;  §  1402, 
p.  830;  §  1410,  p.  837;  §  2731,  p.  1610; 
§  2950,  p.  1723;  §  2955,  p.  1724;  § 
2956,  p.  1724;  §  2957,  p.  1725;  §  3007,  p. 
1740;    §   3008,   p.    1740;   §   3008,   p.   1741. 

Pettus,    Railroad    Co.    v. 

Pewabic  Min.  Co.  v.  ]\Iason,  §  1951,  p. 
1216. 

Phelps,  In  re,  §  1003,  p.  557;  §  1006,  p. 
559;  §  1008,  p.  561;  §  1009,  p.  562;  § 
1013,  p.  563;  §  1015,  p.  565;  §  1016, 
p.  566;  §  1115,  p.  636;  §  1642,  p. 
1011. 

Phelps  V.  McDonald,  §  1954,   p.   1218. 

Phila.,  etc.,  Co.,  In  re,  §  348,  p.  235. 

Ph'la.     &     L,p"^pc     Trancn      Pn        Tn     rp 


Ilia.,  etc.,  Co.,  In  re,  §  348,  p.  235. 
i-'la.   &   Lewes   Transp.    Co.,   In  re,   § 
82,  p.  82;  §  94,  p.  89;  §  418,  p.  269. 
lilips   V.   Turner,   §    150,  p.   190;   §   361, 
"     243;    §    365,   p.    244. 


Ph 
P 
Phill 


p.      ii-iO;      S      OUO,      p.      ^-i'i.. 

hillips  V.   Dreher   Shoe   Co.,   §   231,  p. 

180;    §    611,    p.    362;    §    465,    p.    388;    § 

2741,    p.    1615. 
Phillips,    In  re,   §   2522,   p.   1523;   §   2550, 

p.    1537;   §   2635,   p.   1571. 
Phillips,    Marden   v. 
Phillips   V.   Turner,   §   1696,   p.   1045. 
Philmon  v.  Marshall,  §  1451,  p.  860. 
Philpott  V.   O'Brien,   §   87,  p.   85. 
Ph.    Semmer    Glass    Co.,    In    re,    §    643, 

p.  383;  §   1173,.  p.  688;  §   1174,  p.  689; 

§  1177,  p.  689;  §  1180,  p.  692;  §  1297, 

p.  762;  §  1341,  p.  785. 
Picard,  Levi  v. 
Pickens  v.   Dent,  §  1455,  p.  863;  §  1581, 

p.  948;  §  1582,  p.  949;  §  1582,  p.  950; 

§  1591,  p.  963;  §  1698,  p.  1049. 
Pidcock,  Burnham  v. 
Pidcock,  Clark  z'. 
Pierce,  In  re,  §  96,  p.  92;  §  267,  p.  198; 

§  1595,  p.  964;  §  1671,  p.  1032;  § 

2117,  p.  1305;  §  2248,  p.  1373;  §  2251, 

p.  1374;  §  2252,  p.  1374;  §  2496,  p. 

1505;  §  2511.  p.  1511;  §  2511,  p.  1512; 

§  2595,  p.  1552;  §  2596,  p.  1553;  § 

2613,  p.  1563;  §  2617,  p.  1564. 


2016 


table:  of  case;s. 


Pierce  v.  R.   R.   Co.,  §  687,  p.   417. 
'ierek,  Havens   &  Geddes  Co.  v. 
Pilger,    In   re,   §    46,   p.    59;    §    47,   p.   60; 
§  95,  p.  91;  §  95,  p.  92;  §  245,  p.  188; 


-"lerce  v.  R.   R.   (Jo.,  §  687, 
Pierek,  Havens   &  Geddes  Co. 
'''ger,    In   re,   §    46,   p.    59;    §    47,   p.   60; 
„  95,  p.  91;  §  95,  p.  91 
§   269,   p.   199. 

In    re,    §    59,    p.    65; 


2422,    p. 


Pincus,  ,    „        ,    ^  ,    „ 

1465;  §  2565,  p.   154.3;  §  2568,  p.  1544; 
§   2792,  p.   1633. 

Pinkel,  In  re,  §  696,  p.  421;  §  697,  p. 
422;    §    698,   p.   422. 

Pittelkow,  In  re,  §  533,  p.  331;  §  1797, 
p.  1098;  §  1798,  p.  1098;  §  1885,  p. 
1177;  §  1885,  p.  1180;  §  1888,  p.  1181; 
§  1889,  p.  1182;  §  1901,  p.  1189;  § 
1907,  p.  1191;  §  1965,  p.  1224;  §  1971, 
p.  1226;  §  1972,  p.  1227;  §  1975,  p. 
1228;  §  1984,  p.  1230. 

Pitts,  In  re,  §  2702,  p.  1601 

Place,  In  re,  §  2827,  p.  1653. 

Place,  Russell  zk 


;e,  rtusseii  v. 
Planing-  Mill  Co.,  In  re,  §  1375.  p. 
1454.  n  863-  8  1454  n  86.-? 


803; 


laning  Mill   (Jo.,  In  re,  §  1375.  p. 

§   1454,  p.    863;    §   1454,   p.    863. 
Plasmon   Co.,   In   re,  §  312,  p.   221. 
Plate    Glass    Co.   v.    Edwards,   §   132,   p. 

115;    §    1395,    p.    823;    §    1406,    p.    834; 

§  1410,  p.  836. 
Platte,  In  re,  §  1494,  p.   892. 
Piatt,  Assignee  v.  Matthews,  §  1732,  p. 

1065. 
Piatt,  Stewart  v. 
Plimpton,  In  re,  §  288,  p.  208. 
Plotke,   In   re,  §   30,  p.   46;   §   34,   p.   54; 

§   239,  p.   185;   §  241,  p.   186;   §  245,  p. 

188;  §  253,  p.  191;  §  257,  p.  194;  §  414, 

p.    268;    §    1632,   p.    1005. 
Plow   Co.   V.   McDavid,   §    1140,   p.   670; 

§  1228,  p.  730;  §  1883,  p.  1170;  §  1883, 

p  1171. 
Plummer,    In   re,    §    756,    p.    449;    §   2115, 

'p.   1303. 
Plummer  v.  Myers,  §  1302,  p.  764. 
Plymouth    Co'rdage    Co.,    In    re,    §    201, 

p.    165;    §    207,    p.    170;    §    210,    p.    172; 

§  213,  p.   172;   §  213,  p.   173;   §   261,  p. 

195;    §    268,    p.    198;    §    268,    p.    199;    § 

269,   p.    199;    §    282,    p.    204;    §    283,    p. 

205;    §    284,    p.    205;    §    419,    p.    269;    § 

419,   p.   271;    §   447,   p.   294;    §   2888,    p. 

1696. 
Plylmouth     Cordage     Co.    v.     Smith,    § 

2888,    p.    1696. 
Polakoff,  In  re,  §  436,  p.   279;  §  449,  p. 


296;   §   1130,  p.  643;  §  2522,  p.   1522;  § 

2544,  p.   1532;  §  2550,  p.   1537;   §  2638, 

p.   1572;   §  2639,  p.   1572. 
Policy,   Welch  v. 
Pollman,  In   re,  §  1885,  p.  1179;   §   1885, 

p.  1180;  §  1888,  p.  1181. 
Pollock  V.  Jones,  §  1266,  p.  746;  §  1269, 

p.  748;   §   1370,  p.   796;   §  1399,  p.  828; 

§  2240,  p.  1370. 
Pond,  Moses  v. 
Pond    Trustee  v.  New  York  Exch.  Bk., 

§    1687,    p.    1038;    §    1694,    p.    1044;'  § 

1725,  p.   1063. 
Poore,   In  re,   §  1228,  p.   727;   §   1228,  p. 

731. 
Poor,    Finley   v. 
Pope,    In   re,   §   1047,   p.   595;   §    1047,  p. 

598. 
Port  Clyde  Development  Co.,  Moody  t". 
Porter,    Gueras   v. 
Porter,    In    re,    §    1582,    p.    956;    §    1586, 

p.    961;    §    1813,   p.    1112. 
Porterfield,  In  re,  §  1189,  p.  694;  §  1216, 

p.  721;   §   1266,  p.   746;  §  1267,  p.  748; 

§   1314,  p.   773;  §  1326,  p.   777;   §   1335, 

p.  783;  §  1500,  p.  896;  §  1633,  p.  1008; 

§    1696,    p.    1046;    §    1797,    p.    1097;    § 

1798,  p.   1098;  §   1885,  p.   1177;   §   1885, 

p.    1179;  §  1897,  p.   1186. 
Portner,   Blue   Mtn.,  etc.,  Co.  v. 
Portner,   In  re,  §  274,  p.  202. 
Portuondo    Co.,    In    re,    §    1168,    p.    686. 
Portuondo,   Haas-Barnick   Co.   v. 
Postel,   Techter  v. 
Potts  V.  Smith  Mfg.  Co..  §  1626,  p.  990; 

§   1627,  p.   992;  §   1628,  p.  994;   §   1629, 

p.  997. 
Powell   V.   N.    S.,   §    1203,   p.   698. 
Powers    Dry    Goods    Co.    v.    Nelson,    § 

1022,  p.  570;  §  1024,  p.  572;  §  1032,  p. 

578;   §   1100,   p.   625;    §    1435,  p.   849;   § 

1436,  p.  849;  §  1447,  p.  855;  §  1524,  p. 

906;  §  2668,  p.  1588;  §  2673,  p.  1590. 
Powers.  In  re.  §  1019,  p.  569;  §  1021,  p.* 

570;  §  121«,  p.  721. 
Prager,  In  re,  §  1080.  p.  613;  §  1930, 

p.  1205;  §  2549.  p.  1536. 
Pranke.  Halbert  v. 
Pratesi.  In  re,  §  1157.  p.  683;  §  1437,  p. 

850;  §  1673,  p.  1033;  §  1679,  p.  1034; 

§  1796,  p.  1089;  §  1826,  p.  1121;  § 

1885,  p.  1177;  §  1885.  p.  1180. 


table;  of  cases. 


2017 


Pratt  V.   Bothe,   §   99,   p.   96;   §   1117,   p. 

639;   §   1124,  p.   641;   §   1134,  p.   646;   § 

2085,  p.  1289;  §  2096,  p.  1296;  §  2097, 

p.  1296;  §  2097,  p.  1297;  §  2098,  p. 

1298;  §  2907,  p.  1705. 
Pratt  V.   Christie,  §  1216,  p.  720;  §  1217, 

p.  722;  §  1378,  p.  803;  §  1739,  p. 

1069. 
Pratt,  Griswold  v. 
Press  Post  Printing  Co.,  In  re,  §  1212, 

p.  711;  §  1241,  p.  736;  §  1242,  p.  737. 
Preston,  In  re,  §  1485,  p.  884;  §  1486, 

p.  885. 
Price,  In  re,  §  899,  p.  516;  §  1539,  p. 

918;  §  1541,  p.  919;  §  1544,  p.  922;  § 

1582,  p.  951;  §  1590,  p.  963;  §  1594, 

p.  964;  §  1605,  p.  976;  §  1641,  p. 

1011;  §  1643,  p.  1011;  §  1648,  p.   1013; 

§    2455,    p.    1487.  ' 
Prince,  Barrett  v. 
Prince,   Hesseltine  v. 
Prince  &  Walter,   In  re,   §   533,   p.   331; 

§   1047,  p.  596;   §   1048,  p.  599;   §   1051, 

p.   603;  §   1052,  p.  603;  §  1055,   p.   605; 

§  1089.  p.  616;  §  1885,  p.  1178;  § 

1885.  p.  1180;  §  1965,  p.  1224;  §  1965, 

p,  1225;  §  1969,  p.  1225;  §  1975,  p. 

1228;  §  1976,  p.  1228;  §  1979,  p.  1239; 

§  1989,  p.  1233;  §  1992,  p.  1233;  § 

1993,  p.  1234;  §  1996,  p.  1234;  §  1996, 

p.  1235;  §  2141,  p.  1319;  §  2141,  p. 

1321;  §  2145,  p.  1322;  §  2147,  p. 

1324;  §  2152,  p.  1329;  §  2160,  p.  1333; 

§  2161,  p.  1334. 
Prindle  Pump  Co.,  In  re,  §  723,  p. 

436;  §  724,  p.  437. 
Printing  Co.  v.   Brewing  Co.,  §  2280,  p. 

1395;  §  2881,  p.  1690;  §  2884,  p. 

1695;  §  2915,  p.  1709;  §  2942,  p.  1720. 
Jb'roctor,  In  re,  §  1387,  p.  818. 
Produce  Co.,  Barton  Bros.  v. 


Proc 
Prod 
Pros 

p.  465. 
Protter.  Bogen  &  Trummell  z 

T> ;j Txr^  „K  :.,  „. 


1U>_C       \^U.,       Uai   LUll        JJ1U3. 

;pect   Worsted    IMills,    In   re,   §   794, 

465. 
Protter.   Bogen   &   Trumme 
Providence  Washington   Ins.  Co.,  Tefft 

Publishing  Co.  v.  Hutchinson  Co.,  § 
1585.  p.  958;  §  1652,  p.  1020;  §  1668, 
p.    1032;    §    1796,    p.    1089. 

Pullen  V.  Hillman,  §  1627,  p.  993. 

Pulsifer  v.  Hussey,  §  1003,  p.  557;  § 
1004.  p.   558;   §   1005,  p.  558;   §  1006,   p. 

2  Rem  B-52 


559;  §  1006,  p.  560;  §  1014,  p.  564;  § 

1015,  p.  565;  §  1016,  p.  566. 
Pursell,  In  re,  §  1527,  p.  913;  §  1547, 

p.  926. 
Purvine,  In  re,  §  539,  p.  332;  §  1819,  p. 

1115;  §  1833,  p.  1127;  §  1836,  p.  1128; 

§  1840,  p.  1134;  §  1842,  p.  1137;  § 

1843,  p.  1141;  §  1848,  p.  1145;  §  1856, 

p.  1154;  §  1856,  p.  1155;  §  2881,  p. 

1690;  §  2938,  p.  1716;  §  2942,  p.  1720. 
Putman,  Knott  v. 
Quackenbush,  In  re,  §  2482,  p.  1499;  § 

2482,  p.  1501;  §  2497,  p.  1506;  §  2499, 

p.  1506;  §  2508,  p.  1509;  §  2508,  p. 

1510;  §  2510,  p.  1510;  §  2511,  p.  1511; 

§  2511,  p.  1512;  §  2514,  p.  1514;  § 
2:  S  2596.  o.  1553:  §  2605, 


)ii,  p.  ioia;  8  i;oj.4,  p.  j-d 
..595,  p.  1552;  §  2596,  p.  1553;  §  2605, 
p.  1558;  §  2608,  p.  1559;  §  26C 


p.  1559;  §  2608, 

"  2627 


In  re, 


599. 
2229,  p.  1364. 


1560;  §  2609,  p.  1561;  §  2627,  p.  1567. 

Quimby  Freight  Forwarding  Co.,  In 
re,  §  85,  p.  84;  §  94,  p.  89. 

Quincy  Granite  Quarries  Co. 
§  90,  p.  87;  §  93,  p.  87. 

Rabenau,  In  re,  §  1228,  p.  727;  §  1241, 
p.  736. 

Rafiferty,  In  re,  §  1047, 

Railroad  Co.  v.   Pettus,  ,, ,  ^.  ^ 

Railroad  Company  v.  Schutte,  §  2968, 
p.  1728. 

Railroad  Co.,  Rankin  v. 

Rand  v.  Iowa  Central  Railway  Co.,  § 
483,  p.  310;  §  872,  p.  499;  §  996,  p. 
555;  §  1019,  p.  568;  §  1112,  p.  635;  § 
1113,  p.  635;  §  1113,  p.  636;  §  1120,  p. 
640,  §  1121,  p.  640;  §  1121,  p.  641;  § 
1122,  p.  641;  §  1123,  p.  641;  §  1127, 
p.  642;  §  2500,  p.  1507. 

Randall,  In  re,  §  2827,  p.  1653;  §  2830, 

.  p.  1655. 

Randolph  v.  Scruggs,  §  144,  p.  126 
§  1602,  p.  967;  §  1603,  p.  968;  §  1603 
p.  971;  §  1606,  p.  976;  §  1614,  p.  980 
§  1614,  p.  981;  §  1615,  p.  982;  §  1621 
p.  986;  §  1621,  p.  987;  §  1622,  p.  988 
§   1713,   p.   1057;   §   2868,   p.   1683. 

Rankin,    Harper   v. 

Rankin  v.    Railway   Co.,   §    233,   p.    183 

Rasmussen,    In    re,    §    963,    p.    538; 
1228,    p.    727. 

Rathbone,  In  re,  §  2505,  p.  1508;  § 
2663,   p.    1585. 


§ 


2018 


TABivE  01^  case;s. 


Rauchenplat,    In    re,    §    552,    p.    3 
1547,   p.  924;    §   2457,  p.    1487;   § 


2541, 


7,    p.    924;    §    :i4o7,    p.    1487 

1530;    §    2545,    p.    1533;    §    2549,    p 

1535;  §  2549,  p.  1536;  §  2603,  p.   1 

S    262'      '^      if^fiR-    S    oe.' 


1557; 


',   p.   1729;   §   3023, 


P- 


i,    p.    1566;    §    2626,    p.    1566;    § 

2630,     p.     1569;     §     2631,  '  p.     1569;     § 

2636,     p.     1571;     §     2639,     p.     1572 

2818,  p.   1649;   §   296r 

p.    1748. 
Ray   V.    Norseworthy,    §    1885,    p.    1181 

§  1965,  p.   1223. 
Rayl  V.    Lapham,   §   444,  p.   283. 
Raymond    Bros.    Clark    Co.,    In    re,    : 

1284,  p.   758. 
Raymound  Bros.  Clark  Co.,  Hackneys 
Rea,  In  re,  §  611,  p.  363. 
Read,   In   re,   §    1385,   p.   816;   §   1387, 

819;  §  1388,  p.  819. 
Real    Estate    Trust    Co.    v.    Thompson, 

§   1811,  p.   1109. 
Realty  Co.,  Lesser  v. 
Rebman,  In  re,  §   684,  p.  415;   §   784,  p. 

462. 
Receivers    v.    Staake,    §    400,    p.    262;    § 

693,  p.   420;   §   1207,  p.  699;   §   1209,  p. 

707;    §    1489,    p.    888;    §    1490,    p.    888; 

§  1618,  p.  984;  §  1714,  p.  1057;  §  2018, 

p.   1255;   §  2018,  p.   1256. 
Rector  v.  City  Deposit  Bk.  Co.,  §  1303, 

p.  765;  §  1329,  p.  779;  §  3026,  p.  1749; 

§  3026,  p.  1750. 
Red  River  Valley  N.  Bk.,  Clendeningz/. 
Redmond,   In  re,  §   171,  p.   145. 
Reed  v.   Dippel,  §  2682,  p.  1595;  §  2761, 

p.  1622. 
Reed  v.  Equitable  Trust  Co.,  §  1586,  p. 

960;  §   1587,  p.  962. 
Reed  v.  Mclntyre,  §  149,  p.  129;  §  1603, 

p.  974. 
Reese,  In  re,  §  18,  p.  34;   §  19,  p.  37;  § 

1085,  p.  615;  §  2306,  p.  1403. 
Reeves  v.   McCracken,  §  2783,  p.   1628; 

§  2785,  p.   1630. 
Reichman,   In  re,  §  135,  p.  118;  §  1429, 

p.  847. 
Reid  V.  Cross,  §  1455,  p.  863;  §  2709,  p. 

1604. 


Reid,    In   re,   §   1567,   p.   941. 

Reid,  Katzenstein  v. 

Reiman,   In  re,  §  2369,  p.   1435;  §   2385, 

p.   1442. 
Reinhard,  Falter  v. 


Reinhart,   In  re,  §   1034,  p.   587;   §   1047, 

p.   596;   §   1047,  p.   598;   §   1077,   p.   612. 
Rekersdres,  In  re,  §  887,  p.  506. 
Reliance  Storage  &  Warehouse  Co.,  In 

re,  §  518,  p.  323;  §  817,  p.  475;  §  1885, 

p.    1178;    §    1885,    p.    1180;    §    2291,    p. 

1398;   §  2294,  p.  1399. 
Remington   Automobile    &    Motor    Co., 

In    re,    §    709,    p.    427;    §    714,    p.    428; 

§  1524,  p.  906;  §  1914,  p.  1193. 
Renda,  In  re,  §  1034,  p.  585;  §  1035,  p. 

588;  §  1035,  p.  589;  §  1058,  p.  606; 

§  1089,  p.  616;  §  1797,  p.  1093;  §  1798, 

p.  1098;  §  1807,  p.  1102. 
Rennie,  In  re,  §  53,  p.  63;  §  936,  p.  538; 

§  1117,  p.  639;  §  1130,  p.  643;  §  1133, 

p.  644;  §  1133,  p.  646;  §  1134,  p.  647; 

§   1135,  p.  648;  §  1316,  p.  773. 
Resler,    In    re,    §    787,   p.    462;    §    788,    p. 

463. 
Reukauff,  In  re,  §  2840,  p.  1659;  §  2840, 

p.    1660. 
Rex    Buggy    Co.    v.    Hearick,    §    132,    p. 

115;  §  132,  p.  116. 
Rex  %'.  Cole,  §  51,  p.  63. 
Reynolds,  In  re,  §  18,  p.  34;  §  19,  p.  36; 

§  1215,  p.  718;  §  1632,  p.  1007;  §-1686, 

p.    1037;    §    1687,    p.    1039;    §    1797,    p. 

1094;   §  1798,  p.  1098;  §  1800,  p.   1099; 

§    1807,    p.    1105;    §    1808,    p.    1108;    § 

1820,  p.   1117;  §   1916,  p.   1194. 
Rhodes,  Foster  v. 
Rhodes,  In  re,  §  723,  p.  436;   §  1047,  p. 

599;  §  1087,  p.  615. 
Rhutassel,  In  re,  §  2468,  p.  1491;  §  2470, 

p.    1493;    §    2595,    p.    1552;    §    2662,    p. 

1584;  §  2663,  p.  1586;  §  2748,  p.  1617; 

§  2748,   p.  1618. 
Ricand,   City  of  Wilmington  v. 
Rice,  Egan  State  Bk.  v. 
Rich,   In   re,   §   1124,   p.    641;    §    1158,   p. 

683. 


ooo. 

Richard,  In  re,  §  234,  p.  183;  §  632,  p. 
376;  §  699,  p.  423;  §  776,  p.  460;  §  777, 
p.  460;  §  778,  p.  460;  §  779,  p.  461;  § 
1089,  p.  616;  §  1484,  p.  883;  §  1487, 
p.  885;  §  1629,  p.  997. 

Richard,  Sparhawk  v. 

Rif^liards,   Tn  re,  §  387,  p.  255;  §  584,  p. 


P 

Rich 
351 
1429 
P 


.,  s  869.  p.  498;  §  1429,  p.  847;  § 
^9,  p.  848;  §  1430,  p.  848;  §  1431, 
848;  §  1432,  p.  848;  §  1434,  p.  848; 


TABLE  OF-  CASES. 


2019 


119, 
2942,    p. 
ITS.T; 
26;    § 


§  1451,  p.  860;  §  1463,  p.  868;  §  1463, 
p.  869;  §  1464,  p.  371;  §  1468,  p.  873; 
§  1474,  p.  878;  §  1479,  p.  881;  §  1487, 
p.  885;  §  1629,  p.  997;  §  1883,  p.  1169; 
§  2116,  p.  1304;  §  2119,  p.  1306;  §  2119, 
p.  1307;  §  2881,  p.  1691;  §  294^ 
1719;  §  2948,  p.  1722;  §  2949,  p.  1 
§  2950,  p.  1723;  §  2962,  p.  172 
2963,  p.  1726. 

Richardton,  Fitch  v. 

Richardson,   Graham  v. 

Richardson,  In  re,  §  1032,  p.  581;  § 
1034,  p.  585;  §  1104,  p.  631;  §  1705,  p. 
1052. 

Richardson  v.  Shaw,  §  804,  p.  470;  § 
1303,  p.  766;  §  1313,  p.  770. 

Richardson  v.  Woodward,  §  1022,  p.  571; 

•  §  1041,  p.  593;  §  1042,  p.  593;  §  1043, 
p.   593;  §   1047,  p.   599. 

Richter  v.  Nimmo,  §  1761,  p.  1074. 

Riddles'  Sons,   In  re,  §   1325,  p.  776 

Rider,  In  re,  §  799,  p.  467;  § 


iddles'  Sons,   In  re,  §   1 

ider,  In  re,  §  799,  p.  467;  §  800,  p.  467; 

§  2347,  p.  1425;  §  2356,  p.  1430;  §  2358, 

p.    1431;    §    2358,   p.    1431;    §    2358,    p. 

1432;  §  2359,  p.   1432;  §  2360,  p.  1432; 

§    2361,    p.    1432;    §    2361,    p.    1433;    § 
^2384,  p.   1441;   §  2393,  p.   1446;   §  2397, 
'p.  1449;  §  2861,  p.  1670. 
Ridge    Ave.    Bk.    v.    Snndh 

p.     S9Q 

JK.  IClg^,      ilVV.       JJtV.,      V_)U.lHJ.llV-ill 

iggin  V.  Magwire,  §  641 


leim,    §    1396, 
p.  823. 

Ige  Ave.  Bk.,  Sundheim  v. 
Ri~~---  -    ^' =-"    =  "' 


Rii 


re. 


124, 


'p.  1449;  §  2861,  p.  1670 

V.    Snndli 

Sundheim 

iggin  'u.   iviagwire,  §  641,  p.  382. 

iggs  Restaurant   Co.,   In 

112;    §    265,    p.    197;    §    8     ,    ^ 

1331,    p.    780. 
Riker,    In    re,    §    1696,    p.    1045;    §    1901, 

p.  1188. 
Riley,    In  re,   §   167,  p.   142. 
Riley.  Talbott  &  Hunt,  In  re.  §  167,  p. 

141;  §  170,  p.   143. 
Ripon    Knitting   Works   v.   Schreiber,   § 

1819,  p.  1115;   §  1834,  p.  1128;  §   18; 


6,  p.   1154;  §   1856,  p. 
Rise  V.   Bordner,  §   49,  p.   62;   §   243,   p. 

187;  §  245,  p.  188. 
Risteen,  In  re,  §  98,  p.  95;  §  312,  p.  220. 
Roach,  Whitley  Grocery  Co.  v. 
Roalswick,  In  re,  §  1169,  p.  687;  §  1879, 

p.  1166. 


Robert  Shaw   M'f'g  Co.,   In  re,  §  1 
p.  721;  §  2855,  p.  1666;  §  2856,  p.  li 


!16, 


p.  721;  §  2855,  p.  1666;  §  2856,  p.  1667; 
§  2957,  p.  1725;  §  2959,"  p.  1725;  § 
2962.  o.  1726:  §  2963.  o.  1727:  §  2964. 


i<.io,  V}  2963,  p.  1727;  §  2964, 
p.  1727;  §  2965,  p.  1727;  §  ^'"•'^     •- 


^  ^^^  . ,  ^.  -.- .  ~«  , 
2962,  p.  1726;  §  2 
p.  1727;  §  r"" 
1729;  §  2992 


2968,    p. 

j./;i»;   8   syy~,   p.    i(ao,   ^   3008,   p.    1741. 
Roberts,  Bacon  v. 
Roberts   v.    Johnson,    §    1496,    p.    895;    § 

1500.    p.    896;    §    1500,    p.    897;    §    1504, 

p.  900. 
Robinson,    In   re,   §    617,   p.    366;    §   619, 

p.    367;    §    621,    p.    367;    §    803,    p.    469; 

§  2585,  p.   1551;  §  2612,  p.  1562. 
Robinson,  Rugsley  v. 
Robinson  v.   White,   §    1653,   p.   1024;    § 

1721,   p.    1061. 
Roche   V.    Fox,    §   207,   p.   170;    §    282,    p. 

204. 
Roche,    In   re,    §   824,   p.   478;    §    1996,   p. 

1235;  §  2229,  p.  1364;  §  2827,  p.  1654; 

§  3901,  p.  1702;  §  2923,  p.  1713. 
Rochester,  Mackel  z'. 
Rochford,  In  re,  §  30,  p.  37;  §  355,  p. 

238;  §  531,  p.  331;  §  532.  p.  331;  § 

543,  p.  332;  §  1582,  p.  949;  §  1653,  p. 

1038;  §  1686,  p.  1037;  §  1696,  p.  1045; 

§  1698,  p.  1048;  §  1704,  p.  1051;  §  1796^ 

p.  1089;  §  1797,  p.  1096;  §  1816,  p 

1113;  §  1832,  p.  1126;  §  1873,  p.  1163 

§  1874,  p.  1164;  §  1885,  p.  1178;  §1888, 

p.  1181;  §  1889,  p.  1183;  §  1918,  p, 

1195;  §  3320,  p.  1361;  §  2464,  p.  1489. 
Rockwood,  In  re,  §  355,  p.  237;  §  357, 

p.  240;  §  1652,  p.  1020. 
Roden  Grocery  Co.  v.   Bacon,  §  1024,  p. 

574;  §  1033,  p.  579;  §  1034,  p.  585;  § 

1103,  p.  638;  §  1104.  p.  630. 
Rodgers,  In  re,  §  1140,  p.  669;  §  1146,  p. 

677;  §  1207,  p.  700;  §  1212,  p.  710;  § 

1216,  p.  719;  §  1228,  p.  728;  §  1655,  p. 

1029;   §  1797,  p.   1096;   §   1885,  p.   1177. 
Rodgers  &  Hite,  In  re,  §  1152,  p.  680;  § 

1205,  p.   698. 
Redo,   In  re,  §  333.  p.   182. 
Roeber,    In   re.   §   617,   p.   366;   §   715,   p. 

429;  §   1156,  p.  683. 
Roeblings  Sons,  Chicago,  T.  &  T.  Co  - 
"--hm  V.   Horst,  §  687,  p.   417. 
',   Joseph   V. 


V. 


Roeh 
Roff 
Ro 
Ro 


igers,   Carleton  Dry   Goods   Co.  v. 
igers.  In  re,  §   1616,  p.  983;  §  1620, 


2020 


TABLE  OF  CASES. 


985;    §    1620,   p.    986;    §    1637,   p.    1010; 

§   1646,  p.   1012;   §   2691,  p.   1597. 
Rogers,   Johnson  v. 
Rogers    Milling    Co.,    In    re,    §    198,    p. 

163;    §    333,    p.    182;    §    1363,    p.    793; 

§  1421,  p.  843. 

ogers   z'.    Mining    Co.,    §    26,    p.    41;    § 


Ro 

277,  p.  20 
Rogers  v.  Page,  §   1222,  p.   724; 


1222, 


p.  725;  §  1334,  p.   782;   §  1379,  p.  807; 

§  1396,  p.   824;  §   1399,  p.   828;  §   1408, 

p.  835;  §  (1410,  p.  836;  §  2927,  p.  1714. 
Rogers,  Page  v. 
Rogers  &  Woodward,  In  re,  §  1140,  p. 

668;   §   1140,   p.   669;   §    1140,   p.   670;    § 
735;  §  1256,  p.  741;  §  1371,  p. 


1238,  p 
800. 
Rolling 
Co. 


Mill     Co.,     Iron     and     Supply 
Co.  V. 

Rollins   Gold  &  Silver   Min.   Co.,   In  re, 
§  93,  p.  87;  §  167,  p.  141;  §  215,  p.  174. 

145,  p.  128;  §  207,  p. 


Rollo,   Gray  v. 

Romadka,  Sessions  v. 

Romanow,  In  re,  §  145,  p.  128;  §  207,  p. 

171; §  213,  p. 172;  §  213,  p.  173, §     224,  p. 

178;   §   1602,  p.  967;    §   1604,   p.  975;   § 

1606,  p.  977;  §  1632,  p.  1005. 
Rome  Iron  Co.,  Bank  v. 
Rome     Iron     Co.,     Chattanooga     Xat'l 

■Rinl-    -. 


Bank  v. 

Iron  Co.,  National  Bank  of  Chat- 


Rome 

tanooga  _ 
Rome   Planing    Mills, 


In   re,    §    120,    p. 


Lome  Planmg  Mills,  in  re,  §  120,  p. 
Ill;  §  129,  p.  113;  §  130,  p.  114;  §  132, 
p.  115;  §  132,  p.  116;  §  132,  p.  117; 
§  133,  p.  118;  §  135,  p.  119;  §  136,  p. 
119:  §  138,  n.  120;  §  138,  p.  121;  §  139, 


P- 


§  133,  p.    ,  „ 

119;  §  138,  p.  120;  §  138,  p.  121; 
p.  122;  §  140,  p.  122;  §  140,  p.  1' 
§  141,  p.  123;  §  172,  p.  146;  §  173.  p 
146;  §  175,  p.  148;  §  257,  p.  193;  §  412, 
p.  266;  §  412,  p.  267;  §  1429,  p.  848; 
§  1437,  p.  850;  §  2861,  p.  1670. 
omine.  In  re,  §  511,  p.  322;  §  523,  p. 
326;  §  548,  p.  334;  §  552, "p-  336;  §  552, 
p.  337;  §  560,  p.  340;  §  1547,  p.  925;  § 
1548,  p.  926;  §  1551,  p.  927;  §  1552,  p. 
928,  §  1554,  p.  928;  §  1554;  p.  929;  § 
2336,  p.  1418;  §  2337,  p.  1418;  §  2335, 
141S-  S  2.^40.  n   1419:  S  2342.  p. 

74; 


Rom 


),  p.  1419;  §  2342, 

1419;  §  2629,  p.  1567;  §  2646,  p.  15 

§  2839,  p.  1659;  §  2845,  p.  1661: 
2861,  p.  1670. 


Ronk,  In  re,  §  1222,  p.  724;  §  1229,  p. 

731;  §  1326,  p.  777;  §  1370,  p.  796. 
Rooney,  In  re,  §  998,  p.  556. 
Roosa,  In  re,  §  972,  p.  544;  §  2521,  p. 

1519;  §  2813,  p.  1647;  §  2816,  p.  1648. 
Rose,  In  re,  §  1879,  p.  1166;  §  2164,  p. 

1335;  §  2169,  p.  1336;  §  2169,  p.  1337; 

§  2171,  p.  1338;  §  2172,  p.  1338;  §  2175, 

p.  1340;  §  2176,  p.  1340;  §  2195,  p. 

1347.  i 

Rosenbaum,  In  re,  §  1316,  p.  773;  §  2271, 

p.  1390. 
Rosenberg,  In  re,  §  533,  p.  331;  §  676, 

p.  412;  §  1219,  p.  723;  §  1421,  p.  842; 

§  1427,  p.  846;  §  1582,  p.  955;  §  1658, 

p.  1029;  §  1696,  p.  1046;  §  1807,  p. 

1105;  §  1975,  p.  1228;  §  1985,  p.  1230. 
Rosenberg,  Mencke  v. 
Rosenblatt,  In  re,  §  956,  p.  536;  §  1558, 

p.  934;  §  1559,  p.  937;  §  1560,  p.  938; 

§   1815,  p.  1113;   §  1818,  p.   1114. 
Rosenfeld,  In  re,  §  2457,  p.  1487;  §2482, 

p.  1499;  §  2508,  p.  1509. 
Rosenfield,  In  re,  §  200,  p.   164;   §  1547, 

p.  925;   §  2663,  p.  1585. 
Rosenham  Co.,  Kimball  v. 
Rosenthal,  Coding  v. 
Rosenthal,   In  re,  §   384,  p.  252;   §  2710, 

p.   1604. 
Rosenthal   &  Lehman.  In  re,  §  2045,  p. 

1267;  §  2048,  p.  1271;  §  2052,  p.   1275; 

§  2077,  p.  1286;  §  2080,  p.  1288;  §  2085, 

p.    1289;    §    2087,    p.    1291;    §    2097,    p. 

1296. 
Ross,  English  v. 
Ross-Meeham    Fdy.     Co.    v.    Southern 

Car  &  Fdy.   Co.,  §   1707,  p.  1054. 
Ross   V.    Saunders,   §   17,   p.    33;   §   2375, 

p.    1439;    §    2376,    p.    1439;    §    2381,    p. 

1440;   §  2410,  p.  1454;  §  2411,  p.  1454; 

§  2412,  p.  1454;   §  2895,  p.  1700. 
Rosser,  In  re,  §   539,  p.   332;   §   1558,  p. 

933;   §   1819,  p.    1116;   §   1833,   p.   1127; 

§    1836,    p.    1128;    §    1838,    p.    1131;    § 

1839,  p.  1132;   §  1841,  p.   1135;   §   1842, 

p.    1138;    §    1843,    p.    1141;    §    1848,    p. 

1145;  §  1850,  p.  1147;   §   1855.  p.   1153; 

§  1856,  p.  1154;  §  1857,  p.  1155;  §  2881, 

p.    1690;    §    2938,    p.    1716;    §    2942,    p. 

1719. 
Rothenberg,  In  re,  §  230,  p.  179;  §  643, 

p.  383. 


TABLE  OF  CASES. 


2021 


Rothschild,  In  re,  §  824,  p.  477;  §  1096, 

p.  622;  §  1098,  p.  623;  §  1718,  p.  1060; 

§  1837,  p.   1130. 
Roukous.  In  re,  §  277,  p.  202;  §  2402,  p. 

1452;   §  2406,  p.  1453;  §  2408,  p.  1453; 

§  2409,  p.  1453. 
Rounsaville,  Evans 
Rouse,  H ■*  ^-  *" 


22; 

178, 


uunsavme,   nvans  v. 

ouse,  Hazard  &  Co.,  In  re,  §  5,  p. 

§  1023,  p.  571;  §  2014,  p.  1250;  §  2       , 

p.    1341;    §    2179,    p.    1341;    §    2197,    p. 

1350;  §  2203,  p.  1354;  §  2870,  p.  1684; 


2Z0S,  p.  1354;  S  ^S7U,  p.  IbS-l 
§  2881,  p.  1691;  §  2902,  p.  1703;  §  294S 
p.  1719. 


p.  niv. 
Rouse,    In   re,   §    494,  p.   313;   §.  709 
427;    §    713,    p.    428;    §    714,    p.    428; 
2742,  p.  1616 


:ouse,  In  re,  §  494,  p.  313 
427;  §  713,  p.  428;  §  714, 
2742,  p.  1616. 

Rowell,  Dowder  v. 

Rowland   v.   Auto    C; 


1063;  §  1727,  p.  1064. 


2541,   p. 


;ar    Co.,    §    1726,    p. 

iUD.j;  s  i-i'^t,  p.  -lO 
Rowley,  Jacquith  v. 
Roy.    In    re,   §   2528,   p.    1524; 

1529. 
Royal,   In   re,   §   563,   p.   341;   §   1048,  p. 

599;   §   1051,  p.   603;   §  1069,  p.  609;  § 

2437,  p.   1472;   §  2449,  p.  1486;  §  2457, 

p.    1487;    §    2493,    p.    1505;    §    2521,    p. 

1519;  §  2539,  p.  1528;  §  2541,  p.  1529; 

§  2547,  p.  1534;  §  2665,  p.  1586;  §  2680, 

p.  1594;  §  2843,  p.  1661. 
Royce  Dry  Goods  Co.,  In  re,  §  801,  p. 

468;  §  828,  p.  480;  §  831,  p.  481;  §  833, 

p.    482;    §    834,    p.   482;    §    897,    p.    513; 

§  1024,  p.  572;  §  1032,  p.  578;  §  1203, 

p.  698;  §  1821,  p.  1118;  §  1850,  p.  1147; 

§  2220,  p.  1361;  §  2861,  p.  1670. 
Royea,  In  re,  §  1883,  p.  1170;  §  1883,  p. 

1173;  §  1884,  p.  1175. 
Royston  v.   Weis,  §  69,  p.  73. 
Rozinsky,  In  re,  §  2027,  p.  1258;  §  2044, 

p.  1266;  §  2045,  p.  1266;  §  2054,  p. 

1276;  §  2061,  p.  1282. 
R.  R.  Co.,  Cowley  v. 
R.  R.  Co.,  Pierce  v. 
Rubber  Ref.  Co.,  In  re,  §  1228,  p.  730; 

§  1228,  p.  731;  §  1877,  p.  1165. 
Rude,  In  re,  §  20,  p.  37;  §  404,  p.  263;  § 

548,  p.  334;  §  849,  p.  489;  §  911,  p. 

520;  §  1885,  p.  1178;  §  1885,  p.  1179; 

§  2220,  p.  1361;  §  2228,  p.  1364;  §  2229, 

p.  i.-'.ni. 

Rudnick.    In   re,   §   1207,   p.   700;    §    1207, 


p.  703;   §  1314,   p.  771;   §   1316,  p.   773; 

§  2271,  p.  1390. 
Rudwick,  In  re,  §  2382,  p.  1441;  §  2400, 

p.  1451. 
Rugsley   t'.    Robinson,    §    936,    p.    524. 
Rumsey  z:  Machine  Co.,  §  106,  p.  105; 

§  109,  p.  106;  §  148,  p.   129;  §  1603,  p. 

971;  §   1606,  p.  976. 
Rumsey  v.  Novelty  Co.,  §  106,  p.   105; 

§    146,   p.    128. 
Rung  Bros.,  In  re,  §  863,  p.  496;  §  887, 

p.  507;  §  890,  p.  509;  §  2368,  p.  1435. 
Rung  Furn.  Co.,  In  re,  §  135,  p.  118;  § 

136,    p.    119;    §    137,    p.    120;    §    138,    p. 

121;    §    140,    p.    122;    §    1343,    p.    787;    § 

1350,  p.  789;  §  1361,  p.  793. 
Ruppel,  In  re,  §  664,  p.  404;  §  992,  p. 

553;  §  2204,  p.  1356. 
Rusch,  In  re,  §  902,  p.  516;  §  2864,  p. 

1679;  §  2941,  p.  1718. 
Rush  v.   Lake,  §  63,  p.  69;  §  70,  p.  74; 

§  801,  p.  468;  §  2247,  p.  1372;  §  2950, 

p.  1723. 
Russell  &  Birkett,  In  re,  §  1169,  p.  687; 

§  1582,  p.  949;  §  1780,  p.  1079;  §  1797, 

p.  1093;  §  1798,  p.  1098;  §  1814,  p. 

1112;  §  1874,  p.  1164;  §  1876,  p.  1165; 

§  1879,  p.  1165;  §  1879,  p.  1166;  § 

1879,  p.  1167;  §  1901,  p.  1189;  §  1908, 

p.  1191;  §  2916,  p.  1709. 
Russell,  Christmas  v. 
Russell,  In  re,  §  68,  p.  73;  §  76,  p.  78; 

§  971,  p.  544;  §  2798,  p.  1641;  §  2799, 

p.  1642;  §  2839,  p.  1659;  §  2846,  p. 

1662;  §  2850,  p.  1663. 
Russell  V.   Place,  §  158,  p.  135. 
Russie,  In  re,  §  53,  p.  63;  §  963,  p.  538; 

§  975,  p.  546. 


8  y<o,  p.  o-io. 
Ryan,  In  re,  §  202,  p.  x<jo,    «  ~t:±u,    y. 

270;   §   1179,   p.    690;    §   1427,   p.   846. 
Ryburn,  In  re,  §  899,  p.   515;   §  1641,  p. 

1011;  §  2300,  p.  1401;   S  9.514    r,    -id(\^ 

T ; T> 


Ryerson,      Lansing      Boiler      &      En 


Wks.   V. 

Ryttenberg  v.  Schefer.  §  1150,  p.  678; 
§  1150,  p.  679;  §  1196,  p.  696;  §  1216, 
p.  720;  §  1252,  p.  740;  §  I378,  p.  803; 
§  1396,  p.  825;  §  1689,  p.  1040;  §  1690, 
p.  1042;  §  1696,  p.  1045;  §  1698,  p. 
104*8;  §  1811,  p.  1110;  §  1883,  p.  1169; 
§  1883,  p.  1172;  §  1885.  p.  1178;  §  1885, 
p.  1179;  §  1885,  p.  1180. 


2022 


TABLE  OF  CASES. 


St.  Albans   Foundry  Co.,  In  re,  §  2227, 
p.    1364:    §    1646,    o.    1012:    §    1646,    p. 


L.   .Aiuans    rounury   \^u.,   in 

p.    1364;    §    1646,    p.    1012;    §    1646,    p. 

1013;  §  1787,  p.   1082. 
St.  Arbans  Furniture  Co.,  ^lason  v. 
St.   Cyr.   z:   Daignault,   §   682,   p.   414;   § 

699,   p.  423;   §  1449,   p.   858;   §   1453,  p. 

862;  §  1466,  p.  872. 
St.  John,   In  re,  §  972,  p.  544. 
St.   Louis   Cycle   Co.,   Gragassa  v. 
Sabine,   In   re,   §  528,  p.   330;   §   1586,  p. 

960;  §  2103,  p.  1299. 
Sabin  z'.  Camp,  §  1314,  p.  771. 
Sable,  Claster  v. 
Sagor    &    Bro.,    In    re,    §    1296,    p.    761; 

§   1416,   p.   839;   §   1418,   p.   840. 
S.  Ah.  Mi.,  In  re,  §  1458,  p.  865;  §  1459, 

p.  865;  §  1489,  p.  886;  §  1491,  p.  889. 
Salaberry,   In  re,  §  438,  p.   281. 
Sale,  In  re,  §  1047,  p.  597. 
Salisbury,  In  re,  §  2638,  p.  1571;  §  2639, 

p.   1572. 
Salkey,  In  re,  §  1543,  p.  919;  §  1819,  p. 

1115;  §   1842,  p.  1137;  §  1843,  p.  1141; 

§   1856,  p.  1154. 
Salmon  &  Salmon,  In  re,  §  104,  p.  104; 

§  106,  p.   105;   §   109,  p.   106;   §   112,  p. 

107;  §  146,  p.  128;  §  147,  p.  128;  §  148, 

p.    129;    §    222,    p.    177;    §    806,    p.    470; 

§  1603,  p.  971;  §  1606,  p.  976;  §  1625, 

p.  989;  §  1632,  p.  1007;  §  1634,  p.  1009; 

§  1883,  p.  1172;  §  2415,  p.  1460. 


Sa 


§  1883,  p.  1172;  §  2415,  p.  1460. 
amel  V.   Dodd,  §  1819,  p.  1115;  §  1840, 

p.  1134;  §  1841,  p.  1136;  §  1842,  p. 

1137;  §  1844,  p,  1141;  §  1845,  p.  1143; 

§  1853,  p.  1152;  §  1855,  p.  1154;  § 

1856,  p.  1154;  §  1857,  p.  1155;  §  2938, 

p.  1716;  §  3008,  p.  1741. 

imson  V.   Blake,  §  1800,  p.  1099. 
Sanborn,  In  re,  §  532,  p.  331;  §  533,  p. 

331;  §  1885,  p.  1181;  §  1888,  p.  1181; 

§  1960,  p.  1221;  §  1965,  p.  1223;  §  1975, 

p.  1228;  §  1980,  p.  1229;  §  2481,  p. 

1497. 
Sanderlin,  In  re,  §  59,  p.  65;  §  60,  p.  67; 

§  64,  p.  70;  §  171,  p.  144;  §  1992,  p. 

1233. 
Sanders,  Ross  v. 
Sanderson,  Horskins  z>. 
Sanderson,  In  re,  §  1310,  p.  767;  §  1411, 

p.   838. 
Sandusky   z:    National    Bank,    §    858,    p. 

491. 


Sanford  Furn.  M'f'g  Co.,  In  re,  §  2103, 

p.    1300;    §    2105,    p.    1300;    §    2112,    p. 

1302. 
San  Gabriel  Sanatorium,  In  re,  §  81,  p. 

80;   §  91,  p.  87;   §  94,  p.  90;   §  1582,  p. 
.956;    §    1586,   p.    961;    §    1653,    p.    1024; 

§  1805,  p.  1100. 
Sangenour,   Smalley  v. 
Sapiro,   In  re,  §   1558,  p.  935;   §   1562,  p. 

939. 
Sargent,   In  re,  §   236,  p.   184;   §   279,  p. 
.    203. 
Sarsar,    In   re,    §   341,   p.    233;    §   342,   p. 

233. 
Sasater,   First  Nat'l  Bk.  v. 
Sauer,  In  re,  §  914,  p.  520;  §  915,  p.  520; 

§  915,  p.  521. 
Saunders,   In   re,   §   844,   p..  484. 
Savage  v.  Savage,  §  798,  p.  466;  §  1147, 

p.   677;   §    1974,  p.   1227. 
Savage,  Williams   Bros.   v. 
Savannah     Trust     Co.,     Southern    Pine 
■  Co.  V. 

Savin  z:  Camp,  §  1370,  p.  799. 
Savings  Bank  v.  Jewelry  Co.,  §  444,  p. 

287;    §    1395,    p.    822;    §    1402,    p.    830; 

§  1403,  p.  831;  §  1404,  p.  832;  §  1582, 

p.  953;  §  1582,  p.  956;  §  1586,  p.  961; 

§  1648,  p.  1014;  §  1650,  p.  1015;  §  1687, 

p.    1038. 
Savings   Bk.,   Longfield  z'. 
Savory  v.  Stocking,  §  656,  p.  399. 
Sawyer,  Bank  z>. 
Sawyer,    In   re,    §    1196,   p.    696;    §   1326, 

p.  777. 
Sawyer,  National  Bank  v. 
Sawyer  v.  Turpin,  §  131,  p.  115;  §  1295, 

p.  760;   §   1320,  p.   774;   §   1379,  p.   807; 

§  1384,  p.  815. 
Sawyer  v.  Upton,  §  977,  p.   547. 
Sax,   In   re,   §   1842,   p.    1137;   §   1845,   p. 

1144;  §  1850,  p.  1149. 
Saxton    Furnace    Co.,    In    re,    §    533,    p. 

331;    §    562,    p.    340;    §    707,    p.    425;    § 

783,  p.  462;  §  1968,  p.  1225;  §  1975,  p. 

1228;  §  1977,  p.  1228;  §  1980,  p.  1229; 

§ '1983,  p.  1230;   §  1997,  p.   1236. 
Scammon  v.  Cole,  §  611.  p.  363. 
Scammon    r.    Kimball,    §    1173,    p.    688; 

§  1180,  p.   691. 
Scanlon   &  Co.,   In   re.   §   2170.   p.   1338; 

§   2171,   p.   1338. 


TABLE  OF  CASES. 


2023 


Schachter,    In    re,    §    1819,    p.    1115;    § 

1837,  p.   IKJO;  §   1838,  p.  1130;  §  1843, 

p.    1141;    §    1830,    p.    1148;    §    1856,    p. 

1154. 
Schafer,  In  re,  §  1274,  p.  753. 
Schawninger,  In  re,  §  2415,  p.  1461. 
Schcchter,  In  re,  §  1034,  p.  585;  §  1035, 

p.    587;    §   1035,   p.    589. 
Schefer,  Rytenberg  v. 
Schefield  v.   Gordon,   §   2632,   p.   1569. 
Scheld,  In  re,  §  1003,  p.   557. 
Schellenberg    v.    MuUaney,    §    2759,    p. 

1621. 
Schenck,  In  re,  §  1217,  p.  722;  §  1499,  p. 

895;  §  2521,  p.  1520. 
Schenkein  &  Coney,  In  re,  §  75,  p.  78; 

§   124,  p.   112;   §   177,  p.   149;   §  206,  p. 

170;    §    234,    p.    183;    §    235,    p.    183;    § 

1335,  p.  783. 
Scherber,  In  re,  §  545,  p.  333;  §  1652, 

p.  1020;  §  1695,  p.  1044;  §  1695,  p. 

1045;  §  1698,  p.  1049;  §  1699,  p.  1049; 

§  1699,  p.  1050;  §  1836,  p.  1129;  § 

1863,  p.  1159;  §  1865,  p.  1161;  §  1865, 

p.  1162. 
Schermerhorn,  In  re,  §  1782,  p.  1080;  § 

1782,  p.  1081;  §  1796,  p.  1089;  §  1797, 

p.  1096;  §  1800,  p.  1099;  §  1802,  p. 

1100;  §  1805,  p.  1100;  §  1807,  p.  1106; 

§  1814,  p.  1112;  §  1885,  p.  1178. 

^1-,^.-.-   T^  ^o       S  90S7   n 


p.  1081;  §  17C 

>,  p 

IK 

,     ^  §  looiJ,  p.  a.iiu. 

Scherr,  In  re,  §  2287,  p.  1398;  §  2851,  p. 

1664. 
Scherzer,  In  re,  §  1179,  p.  690;  §  1180, 

p.  691;  §  1297,  p.  762;  §  1341,  p.  785. 
Scheuer  v.   Book  Co.,  §  97,  p.  93;  §  134, 

p.  118;  §  142,  p.  124;  §  142,  p.  125;  § 

150,  p.  131;  §  1603,  p.  972;  §  1605,  p. 

975. 
Scheyer    v.    Book    Co.,    §    1472,    p.    874. 
Schiffer,    Morey    Mercantile    Co.   v. 
Schiller,   In  re,   §  478,  p.   309;  §   512,   p. 

322;   §  2839,  p.    1659;   §   2846,   p.   1662; 


§  2847,  p.  1662. 

/  Schiller  v.    Weinstein,  §  2443,  p.  1477; 

§  2468,  p.  1491;  §  2662,  p.  1584;  § 

2667,  p.  1587;  §  2775,  p.  1627;  §  2781, 

p.  1628. 

Schlesinger,    In    re,    §    1819,    p.    1115;    § 

1841,  p.  1136;  §  1843,  p.  1140;  §  1850, 

p.    1146;    §    1851,    p.    1151;    §    1856,    p. 

1154;  §  2517,  p.  1517;   §  2649,  p.   1575. 

Schley,    Dacovich    v. 


Schliep,  Bills  v. 

Schloerb,  In  re,  §  1797,  p.  1092;  §  1807, 

p.    1101;    §    1807,    p.    1106;    §    1885,    p. 

1178. 
Schloerb,  White  v. 
Schloss,    Strellow    v. 
Schmechel,  In  re,  §  611,  p.  362;  §   611, 

p.   363;   §  645,  p.  388. 
Schmidt,   In  re,  §   1209,  p.   707. 
Schmilovitz    v.     Bernstein,.   §     1429,    p. 

848;   §   1439,   p.   851;   §   1468,  p.    873;   § 

1479,  'p.   881. 
Schmitt  i:   Dahl,  §  1216,  p.  719. 
Schofield,    In   re,    §    2489,    p.    1504;    2490, 

p.    1504;    §    2491,    p.    1504;    §    2522,    p. 

1520;  §  2541,  p.   1530. 
Schlotz,  In  re,  §   1612,  p.  079;   §  1614,  p. 

980;   §  1614,  p.  981;   §   1631,  p.  1004. 
Schonfield,    Stern   v. 
Schophofen,  Van  Ingen  z'. 
Schreck,  In  re,   §   2489,  p.   1504;   §   2491, 

p.    1504;    §    2492,    p.    1505;    §    2511,    p. 

1511;  §  2511,  p.  1512;  §  2522,  p.  1522; 

§  2541,  p.  1530. 
Schreiber,   Ripon   Knitting   Works   v. 
Schreier,    Kaufman  v. 
Schrom,   In  re,  §   367,   p.   244;   §   393,  p. 

257;    §    395,    p.    257;    §    395,    p.    258;    § 

399,  p.  261;  §  1705,  p.  1052;  §  1708,  p. 

1055;  §   1717,  p.  1059. 
Schuchardt,  In  re,  §  636,  p.  377. 
Schuler  v.   Israel,   §   1186,   p.   694. 
Schuler  v.  Miller,  §   1095,  p.   620. 
Schuller,   In   re,   §   1047.   p.   595;   §   1Q61, 

p.  606;  §   1293,  p.   760. 
Schultze,  In  re,  §  171,  p.  144;  §  1038,  p. 

592;    §    1047,   p.    598;    §    2484,   p.    1502; 

§    2545,    p.    1533;    §    2549,    p.    1535;    § 

2563,  p.  1542;  §  2793,  p.  1633. 
Schutte,    Railroad    Company    v. 
Schuyler,   In   re,   §   2457,   p.   1487. 
Schuylkill   Plush   &  Silk   Co.,   Hardt  v. 
Schwaninger,   In  re,   §  41,   p.  57. 
Schwartz,  Davis  z'. 
Schweer  v.   Brown,   §    1819,   p.    1115;    § 

1841,  p.  1135;  §  1842,  p.   1137;  §  1843, 

p.    1140;    §    1851,    p.    1149;    §    1855,    p. 

1153;  §  1855,  p.  1154;  §  1863,  p.  1159; 

§  2873,  p.  1685;   §  2938,    p.   1716. 
Scollan,  Jetter   Brew.   Co.   z\ 
Scott  V.   Armstrong,   §    1173,   p.   688. 


2024 


TABLE  OF  CASES. 


Scott,  In  re,  §  22,  p.  38;  §  26,  p.  40;  § 
33,  p.  53;  §  430,  p.  276;  §  435,  p.  2 
§  523,  p.  327;  §  535,  p.  331;  §  546, 
333;  §  603,  p.  359;  §  603,  p.  360; 


278; 


„„„,  a  „„„,  p.  359;  §  603,  p.  360;  § 
604,  p.  360;  §  617,  p.  366;  §  1558 
933;  §  1560;  p.  938;  §  1995,  p.  1234,  a 
2118,  p.  1306;  §  2119,  p.  1307;  §  2131, 
p.  1310;  §  2132,  p.  1311;  §  2213,  p. 


34;  § 


p.  1310;  §  2132,  p.  1311; 
1360;  §  2467,  p.  1490;  §  24 
8  248."^  n  1.S01  •  8  25.'^fi.  n  1 


2482,  p. 


bu;  s  4-io^,  p.  i4yu;  §  -^isz,  p.  v 
s  2483,  p.  1-501;  §  2556,  p.  1540;  §  2. 
p.  1540;  §  2558,  p.  1541;  §  2674, 
1591;  §  2851,  p.  1664. 

Scott,  Paxton  v. 

Scott,  Walter  v.  Wilson,  §  2874, 
1686;  §  2875,  p.  1688;  §  2920,  p  ' 
§  2922,  p.  1712;  §  2925,  p.  17 


1499; 

57, 

P- 


P- 
1710; 


Scovil,  Cooke  v. 
Scrafford,    In   re,   §    206,    p.    170. 
Screws,   In   re,   §   2117,  p.   1305. 
Scrinopskie,    In    re,    §    1217,    p. 


Scrinopskie,    In 

1874,  p.   1164;  §   1885 

p.   1182. 
Scruggs,    Randolph   v. 
Scully,    In   re,   §   579,   p.   349;    §    584, 

351;  §  682,  p.  413;  §  776,  p.  460. 
Seaboard    Fire    Underwriters,    In   re, 

77,  p.  78. 


1217,    p.    722, 
p.   1181;   §  1889, 

349;    §    584,   p. 


Mills,      Durham 


I  I,    p.     lO. 

Seaboard      Knittin 

Paper  Co.  v. 
Seaboard    Steel    Casting    Co.   v.    Trigg. 

§  141,  p.   124;   §   150,  p.   132;   §  257,  p, 

193. 
Seabolt,  In  re,  §  99,  p.  96;  §  100,  p.  97; 

§  1022,  p.   570;   §  1024,  p.  572;  §   1025, 

D.   575:   §  1025.  o.   576:  §   1047.  o.   595: 


^   ,  ^.   ,._,   „  ...„-,  r.   _...;  §   1025, 

p.   575;   §  1025,  p..   576;  §   1047,  p.   595; 

§   1047,  p.  596;   §'  1047,  p.   599;   §  1062, 

p.   607;  §  1167,  p.   686. 
Seaholm,  In  re,  §  2571,  p.  1545;  §  2572, 

p.  1546;   §   2576,  p.   1547. 
Searchy  v.   McCourt,   §   1959,  p.   1220. 
Sears  Humbert  &  Co.,  In  re,  §  341,  p. 

233;    §   343,   p.    233;    §    344,    p.   233;    § 

345,    p.    234;    §    346,    p.    234;    §    347,    p. 

234. 
Sears,    In    re,    §    266, 

213;    §    297,    p 

298,  p.  215. 
Seay,  In  re,  §  1421,  p.   843. 
Sebring  v.   Wellington,  §   1277,  p.   755 

§  1351,  p.   790;  §  1395,  p.   822;  §   1396 

n     89.4  ■   8   -\!^()R.   p.    899;    §   1504,   p 


sars.  In  re,  §  266,  p.  197;  §  294,  p. 
213;  §  297,  p.  214;  §  297,  p.  215;  § 
298.  n.  215. 


§  1952,  p.  1216. 


899; 


Sechler,   In   re,   §   3  427,   p.    846 
Security  Bank,  Vaccaro  z\    ■ 
Security  Bk.  of  Richmond,  Dickinson  v. 
Seebold,   In   re,   §   1437,   p.    850;   §   1444, 

p.   854;   §  1472,  p.   875;   §   1474,  p.   877; 

§   1582,  p  951;   §   1582,   p.   957;   §   1589, 

p.    962;    §    1686,    p.    1037;    §    1696,    p. 

1046. 
Seeley,  In  re,  §  2482,  p.  1500. 
Seibert,  In  re,  §  1918,  p.  1195. 
Seiter,  Levor  v. 

Seldner,  Chesapeake  Shoe  Co.  v. 
Selkregg  t-.   Hamilton,   §   348,   p.   235;   § 

349,    p.    235;    §    349,    p.    236;    §    352,    p. 

236;   §   353,   p.   237;   §   354,  p.    237. 
Sellers  v.   Bell,   §   288,   p.   207;   §   288,  p. 

208;   §  1047,  p.   597;  §  2013,  p.  1250;  § 

2014,  p.  1350;   §  2015,  p.   1253;  §  2141, 

p.    1319;    §    2528,    p.    1524;    §    2541,    p. 

1530;   §  2542,  p.  1531;   §   2549,  p.   1536. 
Selwyn  Importing  Co.,  In  re,  §  2157,  p. 

1332;  §  2159,  p.  1332. 
Semmel,   In  re,  §  2495,  p.   1505;  §  2511, 

p.    1511;    §    2522,    p.    1520;    §    2522.    p. 

1521;  §  2541,  p.   1529;   §  2541,  p.  l.oliO; 

§   2644,   p.   1574. 
Semons,  In  re,  §   2895,  p.   1700. 
Sentenne  &  Green  Co.,  In  re,  §  1147,  p. 

677;    §   1199,  p.   697;   §    1489,   p.   887;   § 

1489,  p.  888;  §  1491,  p.  E-89;  §  1582,  p. 

949;  §  1797,  p.  1097;  §  1873,  p.  116;;; 

§  1885,  p.  1177;  §  18S5,  p.  1178 
Servis,  In  re,  §  2457,  p.  1487;  §  2459,  p. 

1488;  §  2460,  p.  1488;  §  2594,  p.  1552; 

§  2603,  p.  1556;  §  2612,  p.  1562. 
Sessions  v    ^  i<    «        _» . 


iSions  V.    Romadka,  §  935, 
veil,  In  re,  §  1209,  p.  707; 


iCW 

734 


omaaKa,    §    y,io,    p.    524. 
§   1209,  p.  707;   §  1234,  p. 
.o,,   s   1242,  p.  737;   §   1245,  p.  739. 
Seydel,   In  re,  §  ]037,  p.   591. 
Seymour,  In  re,  §  465,  p.  305. 
Seymour  Lumber  Co.,   Carling  v. 
Shaeffer,   In   re,   §   1166,   p.   686;   §   1971, 
p.    1226;    §    1972,    p.    1227;    §    1973,    p.  ^ 
1227. 
Shafifer,    Heath    v. 

Shaffer,   In  re,   §   494,   p.   313;   §   658,   p. 
10;  §  659,  p.  401;  §  659,  p.  402;  §  665, 
404;  §  665,  p.   405;   §  723,  p.  436;   § 
!6,  p.  437;   §   1073,  p.   611;   §  >1090,   p. 
-7:   §   2315,  p.    1405;    §  2442,   p.   1477; 
§    2445,    p.    1477;    §    2686,    p.    1595;    § 


400 

P- 

7J 
61 


table:  of  cases. 


2025 


2714, 


4,  p.  1606;  §  2717,  p.  1606;  §  2812, 
p.  1646;  §  2815,  p.  1647;  §  2824,  p. 
1650. 


J-DOU. 

Sliainwald,  Lewis  v. 

Shanker,  In  re,  §  457,  p.  302;  §  1538,  p. 

918;  §  1577,  p.  945;  §  2455,  p.  1487. 
Shannahan,    Dcvries   z'. 
Sharp,   Tn  re,  §   1048,   p.  599;   §  1062,  p. 

607;   §   1095,  p.   619;   §   1478,   p.   880;   § 

1663,  p.  1030. 
Sharp   z\    Woolslare,    §    1029,   p.    578;    § 

1032,  p.  578;  §  1063,  p.  607;  §  1100,  p. 

625. 
Shattuck    &    Bugh,    In    re,    §    2245,    p. 

1372. 
Shaw,    In    re,    §    801,    p.    468;    §    815,   p. 

474;    §    844,    p.    484;    §    844,    p.    485;    § 

1207,  p.  699;  §  1207,  p.  703;  §  1208,  p. 
705;  §  1222,  p.  724;  §  1230,  p.  732;  § 
1236,  p.  734;  §  2203,  p.  1355. 

Shaw,  Richardson  v. 

Shawham  v.  Wherritt,  §  444,  p.  283. 

Shea,   In  re,  §   1950,  p.   1215;   §  1954,  p. 

1217;  §  1954,  p.  1218;  §  1957,  p.   1219; 

§  1958,  p.  1220;  §  1960.  p.  1221;  §  2854, 

p.   1665;  §  2857,  p.   1668. 
Shedaker,  In  re,  §  993,  p.  553. 
Sheehan,  Berry  Bros.  v. 
Sheets  Ptg.   &  Mfg.  Co.,  In  re,  §  1140, 

p.   668;   §  1228,  p.  727;   §   1241,  p.  736. 
Sheinbaum.    In    re,    §    1653,    p.    1028;    § 

1864,   p.    1159;    §   1865,   p.   1161. 
Sheldon    v.    Parker,    §    1207,    p.    700;    § 

1208,  p.  705;  §  1226,  p.  726;  §  1653,  p. 
1028;  §  1687,  p.  1038;  §  1687,  p.  1039; 
§  1726,  p.  1063;  §  1760,  p.  1074;  § 
1790,  p.  1083;  §   1791,  p.  1083. 

Shenberger,  In  re,  §  953,  p.   535;  §  972, 
p.   544. 

'  I,    p. 

634. 

p.  760;  §  1320, 


p.   544. 
Shepard.    In    re,   §    59,    p.    67;    §    683, 

415;    §   2756,   p.    1620;   §   2794,   p.   16 
Shepherd,  In  re,  §  1295,  p.  760;  §  13 

n    774. 


Sh 

p.   774. 

Shera,  In  re,  §  1558.  p.  933. 
Sheridan,  In  re,  §   1370,  p.  798. 
Sherman,  Bank  v. 
Sherman   "    """    ' 
Sh 


hcrman  v.   Bingham,   §   1705,   p.   1051. 
berman  v.   Luckhardt,   §  1494,  p.   891; 
§  1745,  p.  1071. 
Sherman    Mfg.    Co.,    In    re,    §    1146,    p. 

677. 
Shertzer,  In  re,  §  2544,  p.  1533. 


Shesler   v.    Patton,    §    1954,    p.    1218;    § 

1959,  p.  1220. 
Shields,    In   re,   §   2356,   p.    1430. 
Shirley,  In  re,  §  1140,  p.  668;  §  1209,  p. 

707;  §  1222,  p.  724;  §  1230,  p.   732. 
Shoe   Co.,   Wilkinson  v. 
Shoe    &    Leather    Reporter,     In    re,    § 

1935,  p.   1209;  §  1965,  p.  1223;  §   1967, 

p.    1225;    §    1986,    p.    1231;    §    1987,    p. 

1231;  §  2948,  p.  1722;  §  3002,  p.  1738; 

§    3002,    p.    1739;    §    3007,    p.    1740;    § 

3010,  p.  1742 


3010,  p.  1742. 
Shoemaker,  In  re,  §  1458,  p. 

1459,  p.  865;  §  1472,  p.  874;  §  1472,  p. 

876;  §  1473,  p.  877;  §  1582,  p.  949;  § 

1600,  p.  966;  §  1904,  p.  1190. 
Shoesmith.   In   re,   §   261,  p.   195;   §  262, 

p.  196;   §  265,  p.  197;   §  273,  p.   202;   § 

1344,  p.  788. 
Shorer,  In  re,  §  2482,  p.  1499;  §  2544,  p. 


1532. 

Shriver,  In  re,  §  2634,  p.  1569;  §  2861, 
p.  1670. 


SI 


hropshire,  Woodlifif  &  Co.  z:  Bush,  § 

2135,  p.  1318;   §  2183,  p.   1342;   §  2183, 

p.   1343. 
Shufeldt,   Audubon  f. 
Shulte  V.  Patterson,   §   98,  p.  95;   §  306, 

p.   219. 
Shults,   In  re,  §  1176,  p.  689;  §  1180,  p. 

691;   §   1182,   p.   692;   §   1183,   p.   693;   § 

2861,   p.    1672. 
Shults  and  Marks,  In  re,  §  544,  p.  332; 

§   545,   p.    333;    §   1414,  p.   838;   §   1695, 

p.  1044;  §  1699,  p.  1049. 
Shultz,  In  re,  §  2650,  p.  1575. 
Shuster,  In  re,  §  1215,  p.  718;  §  1234, 

p.  734;  §  1236,  p.  734. 
Shutts  V.   Bank,  §  1653,  p.  1024;  §  1832, 

p.  1126. 
Siebert,  In  re,  §  472,  p.  306;  §  527,  p. 

330;  §  528,  p.  330;  §  1028,  p.  577;  § 

2702,  p.  1602. 
Siegel-Hillman   Dry   Goods    Co.,  In  re, 

§  20,  p.  37;  §  2220,  p.   1361;  §  2220,  p. 

1362. 
Siegel,   Swarts  v. 
Sievers.  In  re,  §  1602,  p.  967;  §  1604,  p. 

975;   §   1606,  p.   977;   §   1629,  p.   996;   § 

1632,  p.  1005;  §  1632,  p.  1007;  §  1653, 

p.  1024. 


2026 


TABLE  0:F  CASES. 


P- 


Silberhorn,  In  re,  §  1653,  p.  1024;  § 
1674,   p.    1033;   §   1887,  p.    1181. 

Silberman,  In  re,  §  22,  p.  38. 

Silberstein  v.  Stahl,  §  1302,  p.  764;  § 
1303,  p.  765;  §  1687,  p.  1038. 

Sill  V.  Solberg,  §  611,  p.  363. 

Silverman  Bros.,  In  re,  §  132,  p.  117;  § 

■  686,  p.  416;  §  704,  p.  424;  §  707,  p.  425; 
§  712,  p.  428;  §  2018,  p.   1254. 

Silverman   &   Schoor,   In  re,   §   2045,   p. 

■       1266;   §  2047,  p.   1270;   §  2072,  p.  1285. 

Silvey  &  Co.  v.  Tift,  §  444,  p.  284;  §  445, 

p.   288;   §   638,   p.   380;   §   1302,   p.   764; 

§    1776,    p.    1078;    §    1879,    p.    1166;    § 

1880,   p.   1168. 
Simmons,  Wheeler  v. 
Simon,   In  re,   §   1647,  p.   1013. 
Simon    &    Sternberg,    In    re,    §    523, 

■  325;  §  2316,  p.  1410;  §  2861,  p.  1671. 
Simon,  U.  S.  v. 

Simonson,   In   re,   §   282,   p.    204;   §   316, 

p.  221. 
•Simonson  r.   Sinsheimer,  §   406,  p.   265; 

§  408,  p.  265;   §   1632,  p.   1005;   §  2881, 

p.   1690;  §   2894,  p.   1700. 
Simonson,   Sinsheimer  f. 
Simonson,    Whiteson    &    Co.,    In    re,    § 

277,  p.  202. 
Simpson  v.   Van   Etten,   §   1460,   p.   866. 
Sims,  In  re,  §  2152,  p.  1329. 
Singer   z:    Xat'l    Bedstead    Mfg.    Co.,    § 

2,  p.  21;  §  3,  p.  21;  §  7,  p.  23;  §  10,  p. 

26:  §   14,   p.   29;   §  21,  p.   37;   §   103,  p. 
.     103;    §    150,   p.    132;    §    1603,    p.   975;    § 

1625,  p.  989;  §  1627,  p.  993;  §  1628,  p. 

994;  §  1630,  p.  998;  §  1630,  p.  1001;  § 

1630,  p.  1003. 
Sinsheimer  v.   Simonson,  §  223,  p.  177; 

§  612,  p.  979;  §  1653,  p.  1023;  §  1666, 

p.  1031;  §  1666,  p.  1032;  §  1840,  p. 

1134. 
Sunsheimer,  Simonson  v. 
Sisler,  In  re,  §  1032,  p.  581;  §  1034,  p. 

585;  §  1035,  p.  587;  §  1102,  p.  627. 
Skillen  v.   Endelman,  §  1140,  p.  671;  § 

1207,  p.  700;  §  1217,  p.  722;  §  1220, 

p.  723;  §  1227,  p.  726;  §  1258,  p.  742; 

§  1261,  p.   743;   §  1262,  p.  744;   §  1741, 

p.  1070. 
Skilton    V.    Codington,    §    1208,    p.    705; 

§  1209,  p.  707;  §  1209,  p.  708;   §   1214, 

p.  715;  §  1235,  p.  734;  §  1258,  p.  741; 


§  1760,  p.  1074;  §  1780,  p.  lOSO;  § 

1782,  p.  108U;  §  1813,  p.  1111;  §  1814, 

p.  1112. 
Skinner,  In  re,  §  444,  p.  283;  §  2502,  p. 

1507;  §  2505,  p.  1508;  §  2521,  p.  1520; 

§  2655,  p.  1577. 
Skinner,  Wright  v. 
Slack,  In  re,  §  99,  p.  96;  §  99,  p.  97; 

§  100,  p.  97;  §  1166,  p.  686;  §  1167,  p. 


686. 

Slater,   Oxford  Iron   Co.  v. 
:  Co..  In  re.  5  35.  o.  55 


ate  Co.,  In  re,  §  35,  p.  55;  §  86,  p.  85; 
§  93,   p.   87. 
Slate  Co.,  Van  Kirk  v. 

■luff.   In   re,   §   1005,   p.    558;   §   1006, 


SI; 


Slin 


p.  559;  §  1015,  p.  565. 


In  re,   §   1032,   p. 
"    —'  589;    " 


)79;   §   1034,   p. 


Sloan,   in  re,   §   luda,   p.   o^y;   s   nJ^-t,  P- 

587;   §   1035,   p.   589;   §   1058,  p.   606;   § 

1061,  p.  606;  §   1331,  p.  780;  §  2204,  p. 

1356. 
Sloan,   Lewis   z\ 
Slocum,  In  re,  §  2257,  p.  1377. 
Slomka,    In    re,    §    1603,    p.    971;    §    1603, 

p.    974;    §    2014,    p.    1250;    §    2178,    p. 

1341;  §  2179,  p.  1341;  §  2196,  p.  1347; 

§    2198,    p.    1351;    §    2203,    p.    1354;    § 

2203,  p.  1355. 
Small  V.   Miller,   §   1216,  p.   719;   §   1267, 

p.  747;  §  1655,  p.  1029;  §  1687,  p.  1038; 

§   1813,  p.   1111. 
Smalley   v.   Laugenour,    §    1022,   p.    570; 

§   1025,  p.  575;   §  1041,  p.   593;   §   1073, 

p.   611;   §  1086,  p.  615;   §   1109,  p.   634; 

§  1110,  p.  634;   §  3026,  p.  1749. 
Smart,  Brown  v. 
Smart,   In   re,   §   806,   p.   470;   §   1883,   p. 

1169;    §    1883,   p.   1172. 
Smelting    Co.,    In    re,    §    1115,    p.    637; 

§  1540,  p.  918;  §  1558,  p.   934;   §   1856, 

p.   1155;  §   1858,  p.   1157. 

^;n,    „,      Ts^lden,    §    1718,    p.    1060;     § 


541,' 


Smith    V.    Bel 

2830,    p.    1655. 
Smith  V.   Belford;   §   528,   p.   330;   „    .__, 

p.    332;    §    1836,    p.    1129;    §    1838,    p. 

1132. 
Smith,    Bindseil   v. 
Smith,  Buchanan  v. 
Smith    v.    Cooper,    §    2045,    p.    1266;    § 

2046,  p.   1267;  §   2046,  p.  1268;  §  2047, 

p.  1268;  §  2064.  p.  1282. 
Smith  &  Dodson,  In  re,  §  1602,  p.  967; 

§  1607,  p.  977;  §   1611,  p.  978;   §  1625, 


TABI.E  OF  CASES. 


2027 


p.  989;  §  1629,  p.  997;  §  1632,  p.  1005; 

§  1633,  p.  1008. 
Smith  V.   Evans,  §  2861,  p.  1670;  §  2875, 

p.  1687;  §  2925,  p.  1713. 
Smith,  French  v. 
Smith,  Goldman  v. 
Smith,  Harvey  z': 
Smith,  Hoston  v. 
Smith,  In  re,  §  282,  p.  204;  §  313.  p. 


mith.  In  re,  §  282,  p.  204; 
221;  §  348,  p.  235;  §  349,  p.  236 
§  352,  p.  236;  §  353,  p.  237; 


221;  §  348,  p.  235;  §  349,  p.  236; 
§  352,  p.  236;  §  353,  p.  237;  §  358,  p. 
240;  §  359,  p.  242,  §  573,  p.  348;  § 
642,  p.  383;  §  643,  "  """  " 
409;  §  672;  --  *-"^' 


i;    s  04d,  p.  383;  §  672,  p. 

'.,   p.  410;  §  683,  p.  415;  § 

838,  p.  483;  §  872.  o.  499;  §  882,  p. 


»,  p.  1S6;    8  o'^,  P-  -199;  §  882,  p. 

504;  §  886,  p.  504;  §  896,  p.  511; 

901,  p.  516;  §1000.  p.  556;  §  1047, 
59    " 


)1.  p.  516;  §1000.  p.  556;  §  1047,  p. 
597;  §  1073,  p.  611;  §  1111,  p.  634; 
§  1130,  p.  643;  §  1152.  p.  680;  §  1558, 
p.  934;  §  1778,  p.  1079;  §  1779,  p. 
1079;  §  1783,  p.  1081;  §  1798,  p.  1098; 
§  1819,  p.  1115;  §  1820,  p.  1118;  § 
1875,  p.  1164;  §  1901,  p.  1188;  §  1905, 
p.  1190;  §  1986,  p.  1230;  §  1987,  p. 
1231;  §  2018,  p.  1254;  §  2045,  p.  1266; 
§  2045,  p.  1267;  §  2047,  p.  1268;  § 
2048.  p.  1271;  §  2050,  p.  1274;  §  2081, 
p.  1288:  §  2089,  p.  1293;  §  2097,  p. 
1296;  §  2169,  p.  1336;  §  2169,  p.  1337; 
§  2171,  p.  1338;  §  2172,  p.  1338;  § 
2172,  p.  1339;  §'2]73,  p.  1339;  §  2174, 
p.  1339;  §  2176,  p.  1340;  §  2211.  p. 
1359;  §  2511,  p.  1512;  §  2521,  p.  1519; 
§  2754,  p.  1620;  §  2785.  p.  1630;  § 
2839,  p.  1659;  §  2840,  p.  1660;  §  2846, 
p.  1662. 

Smith  V.  Keegan,  §  2522.  p.  1520;  § 
2533,  p.  1526;  §  2545,  p.  1533;  §  2637, 
p.  1571. 

Smith,  Liddon  &  Bro.  v. 

Smith,  Linn  z'. 

Smith  Lumber  Co..  In  re.  §  801,  p. 
468;  §   1204,  p.   698. 

Smith,  McMurtrey  v. 

Smith  7'.  Mason,  §  1655,  p.  1029;  §  2864 
p.    1682 


re, 


oni'th    &    Xixou    Piano    Co.,    In 

1228,  p.  730. 
Smith  V.  Parsons,   §   1627,  p.   993. 
Smith    Perkins    Co.,    Gleason  v. 
Smith,  Plymouth  Cordage  Co.  v. 
Smith  &  Shuck,  In  re,  §  1140,  p.  668;  § 

1212,    p.    711;    §    1215,   p.    718;    §    1241, 

p.  736. 
Smith  v.  Stanchfield,  §  2718,  p.  1607;   § 

2721,  p.  1607;  §  2723,  p.   1608. 
Smith    z'.    Township,    §    551,    p.    335;    § 

1567,   p.   941;   §    1883,  p.   1169;   §   1883, 

p.    1172;    §    1884,    p.    1174;    §    1884,    p. 

111-7;  §  1885,  p.  1178;  §  1885,  p.  1179; 

§    1888,    p.    1181 


Smith    &    Wallace    Co.    a.    ^... 
2748,   p.   1617;   §  2748,   p.   1618. 

Smith      "'        \Mht^f>'\(^r       S      fij-i        n 


:'.    Lambert,    § 
§ 


V.    Wheeler,    §    644,    p.    385; 

2741,   p.    1615. 
Smith  V.  Zachry,  §  1086,  p.  615;  §  2668. 

p.  1588;  §  2673,  p.  1590. 
Smithwick,    Brinkley  v. 
Smythe,  Crane  Co.z;. 
Snell,    In   re,   §   1451,   p.   860;   §   1588,   p. 

962;    §    1903,  p.    1190. 
Snyder  v.   Bougher,  §   1999,  p.   1236 
Snyder,   Breckons  v. 
Snyder    v.    Guthrie,    §    1104     "     ""^ 

110~         """     "   


p.    628;    § 
7,   p.    633;   §    2704, 
■  "  ■     "  ~~'"    p.  16uo. 

ion    Co.,    In    re,    §    94, 

1416,   p.   839;  §   1427, 


Snyder    &    Johns 

p.   89. 
Solberg.   Lill  z<. 
Soldosky,   In   re. 

p.   846. 
Soloman,   Grill  v. 
Sonnabend,  In  re,  §  523,  p.  325;  §  2391, 

p.   1445. 
Sonneborn   v.   Stewart.   §   354,   p.   237. 
Soper   &  Slada,   In   re,   §   2303,   p.   1402; 

§  2304,  p.   1402;  §  2310,  p.  1404. 
Soudans    M'f'g    Co.,    In    re,    §    1262,    p. 

744;    §    1314.    p.    771;    §    1357,    p.    791; 

§  1357,  p.  792;  §  1500,  p.  896;  §  1500, 

p.  897;  §  1501,  p.  898;  §^  1504,  p.  900; 

§  2900,  p.  1702;  §  2923,  p.  1713. 
Southern   Car  &  Fdy.   Co.,   Ross   Mee- 

ham  Fdy.  Co.  z'. 
Southern    Loan    &    Trust    C 

bow,   §   18,  p.  34;  §  19    "    ' 


;  18,  p.  34;  §  1>J.  p.  36;  §  22,  p 
38;    §    1885.    p.    1178;    §    1965,    p.    1"~" 


Ben- 
!,  p. 
223. 


2028 


TABLE  OF  CASES. 


Southern   Pine    Co.   v.    Savannah   Trust 

Co.,  §   1146,  p.   677;   §  2861,  p.   1671. 
Spalding,    In   re,   §   98,   p.   95;    §   150,   p. 

130;    §    151,    p.    132;    §    152,    p.    132;    § 

153;    p.    133;    §    155,    p.    133;    §    157,    p. 

134;  §  158,  p.  134;  §  158,  p.  135;  §  159, 

p.  137;  §  350,  p.  236;  §  352,  p.  236. 
Sparhawk  v.   Richard,   §   131,  p.   114. 
Sparhawk  v.   Yerkes,  §  935,  p.   524. 
Spear,   Crosby  v. 
Spear,   In   re,   §   2544,   p.   1532. 
Speer   Bros.,   In   re,   §   2241,   p.   1371. 
Spencer  v.   Duplan   Silk   Co.,   §   1686,   p. 

1037;  §  2864,  p.   1679;   §   3017,  p.   1746. 
Spencer,   Duplan  Silk  Co.  v. 
Speyer,   In   re,   §   1819,   p.   1115. 
Spicer,   In   re,   §   494,  p.   313;    §   2303,   p. 

1402;    §    2782,    p.    1628. 
Spike    &    Iron    Co.    v.    Allen,    §    128,    p. 

113;   §    138,    p.    120;   §    138,    p.    122:   § 

139,    p.    122;    §    142,    p.    125;    §    171,    p. 

144;  §  1385,  p.  815. 
Spitzer,   In   re,   §   1780,   p.   1079;   §   1781, 

p.    1080;    §    1797,    p.    1093;    §    1798,    p. 

1098;    §   1814,   p.    1112. 
Spoke  &  Nipple  Co.,  M'fg    Co.  v. 
Spring  7'.   Ins.   Co.,  §   1372,  p.   801. 
Staake,   First  National   Bk.  v. 
Staake,    Receivers   v. 
Staale,  Evans  v. 
Stahl,   Furth  v. 
Stahl,    Silberstein  v. 
Stalker,   In  re,   §   2141,   p.   1319;   §   2141, 

p.    1320;    §    2147,    p.    1324;    §    2148,    p. 

1327;  §  2153,  p.   1330;   §  2154,  p.  1330. 
Stanchfield,  Smith  v. 
Standard   Laundry    Co.,    In   re,    §    1144, 

p.     673;    §     1148,    p.     678;     §    1207,    p. 

700. 
Standard    Spoke    &    Nipple    Co.,    Bean- 
Chamberlain  M'fg  Co.  V. 
Stansell,    In   re,   §    233,   p.    182. 
Stapleton,  Ex  parte,  §  674,  p.  412. 
Stark,    In    re,    §    2544,    p.    1533;    §    2545, 

p.    1533;    §   2549,   p.   1536. 
Stark  V.  Stinson,  §  2716,  p.  1606. 
State    Bank  v.    Cox,    §    1117,   p.    639;    § 

1121,  p.  640;  §  1126,  p.  642;  §  1138,  p. 

665;   §    1207,    p.    703;   §    1215,    p.    718; 

§    1453,   p.   862;    §   1808,   p.   1108. 
State  Bank,  Cox  v. 
State   Bank,   Cullinane  v. 


State  Bank,  First  National  Bank  v.  > 

State,  Burrell  v. 

State  ex  rel.  Strohl  v.  Sup.  Ct.  of  Kings 

Co.,  §  1461,  p.  867. 
State    of    New    Jersey    v.    Anderson,    § 

2141,  p.  1319;   §  2155,  p.   1330;   §   2155, 

p.    1331;    §    2156,    p.    1331;    §    2156,    p. 

1332;   §  2157,  p.   1332;  §   2158,  p.   1332. 
State    of    Pennsylvania,    v.    W.     &    B. 

Bridge   Co.,  §   2659,   p.    1578. 
State    National    Bank,    First    National 

Bank  of  Miles   City  v. 
State  V.  Strait,  §  2323,  p.  1412. 
Staufifer,  Coal  &  Coke  Co.  v. 
Staunton,   In  re,  §  1041,  p.   592;  §   1055, 

p.   605;   §   1097,  p.   623. 
Steadman  v.  Taylor,  §  1950,  p.  1215. 
Steam  Vehicle    Co.   of  Am.,   §   1279,   p. 

756. 
Stearns  v.  Flick,  §  1614,  p.  981. 
Stedman  v.  Bank  of  Monroe,  §  1314,  p. 

771;   §    1324,    p.    776;  §    1326,    p.    777; 

§  1395,  p.  823;  §  1396,  p.  825;  §  1500, 

p.  897. 
Steed  &  Curtis,  In  re,  §  1047,  p.  596; 

§  2318,  p.  1410;  §  2480,  p.  1497;  §  2557, 

p.  1540;  §  2597,  p.  1554;  §  2598,  p. 

1554;  §  2603,  p.  1556;  §  2630,  p.  1569; 

§  2638,  p.  1572;  §  2639,  p.  1572. 
Steel  Co.,  Woodford  r. 
Steele  v.    Buel,  §  1003,  p.  557;  §  1022, 

p.  571;  §  1041,  p.  592;  §  2864,  p.  1679; 

§  2892,  p.  1698;  §  2805,  p.  1705;  § 

2906,  p.  1704;  §  2911,  p.  1705;  §  2928, 

p.  1714;  §  2930,  p.  1715;  §  2982,  p. 

1733;  §  2992,  p.  1736. 
Steele,  In  re,  §  1004,  p.  558;  §  1015,  p. 

565. 
Steers  Lumber  Co.  In  re,  §  1280,  p. 

757;  §  1421,  p.  842;  §  1421,  p.  843;  § 

1427,  p.  846. 
Stegar,  In  re,  §  291,  p.  210;  §  301,  p. 

216;  §  302,  p.  216;  §  303,  p.  217. 
Stein  &  Co.,  In  re,  §  54,  p.  64;  §  59,  p. 

65;  §  76,  p.  78;  §  96,  p.  93;  §  198,  p. 

164;  §  207,  p.  171;  §  268,  p.  198;  §  269, 

p.  200;  §  306,  p.  219;  §  309,  p.  220; 

§  311,  p.  220;  §  731,  p.  439;  §  1055,  p. 

605;  §  1058,  p.  606;  §  1069,  p.  609; 

§  1089,  p.  616;  §  2214,  p.  1360;  §  2238, 

p.  1369. 
Stein,  Lipman  v. 


TABLE  OF  CASKS. 


2029 


Steindler  &  Hahn,  In  re,  §  2469,  p.  1492; 
§  2481,  p.  1498;  §  2511,  p.  1511;  § 
;511,  p.  1512;  §  2521,  p.  1519;  §  2814, 
).    1647. 


P 

t 
Steiner 


teiner,  In  re,  §  24,  p.  39. 

teiner  v.  Marshall,  §  1047,  p.  599;  § 
2916,  p.  1709;  §  2917,  p.  1709;  §  2918, 
p.  1709;  §  2930,  p.  1715;  §  2949,  p. 
1722. 


Steinharclt  z'.  Xat'l  Bk. 

1180,  p.   692. 
Steininger,  In  re,  §  177,  p.  148. 
Steininger  Mercantile  Co.,  In  r( 


§  629,  p.  374;  § 

teininger.  In  re,  §  177,  p.  148. 
teininger  Mercantile  Co.,  In  re,  §  1494, 
p.   891;   §   1733,  p.   1067. 
telling   z'.   Jones   Lumber   Co.,   §    1146, 
p.  677;  §  1258,  p.  742;  §  1691,  p.  1042; 
§    1696,    p.    1045;    §    2874,    p.    1686;    § 


Stellin 

p.  67 

§    1696, 

2878,   p.   1689;   §   2920,   p.   1710. 
Stengel,   Leidigh   Carriage   Co.  v. 
Steoling,    Godshalk  v. 
Stephens,    Hanson  v. 
Stephens,   In  re,  §   1047,  p.  599;  §   1098, 

p.  623;   §  2861,  p.  1670. 
Stephenson,   In  re,  §  265,  p.   197. 
Sterling,   Ahrens   &  Co.,  In  re,  §   1520, 

p.  904;  §  1522,  p.  905. 
Sterllow  z'.  Schloss,  §  171,  p.  144. 
Stern,  Falk  &  Co.  z:  Trust  Co.,  §  1224, 

p.  725;   §   1299,  p.  763;   §   1332,  p.  781; 

§  1335,  p.  783;  §  1393,  p.  821;  §  1770, 

p.  1076. 
Stern,  In  re,  §  230,  p.  179;  §  232,  p. 

180;  §  242,  p.  186;  §  674,  p.  410;  §  687, 

p.  416;  §  704,  p.  423;  §  707,  p.  425; 

§  826,  p.  479;  §  851,  p.  490;  §  902,  p. 

516;  §  1196,  p.  696. 
Stern  v.   Mayer,  §  1329,  p.  778. 
Stern  &  Schonfield,  §  265,  p.  197. 
Steuer,    In   re,   §    501,   p.   320;    §   527,   p. 

329;   §   545.  p.   333;   §   1653,   p.   1027;   § 

1695,  p.  1044;  §  1695,  p.  1045;  §  1696, 

p.  1045;  §  1698,  p.  1048;  §  1698,  p. 

1049;  §  1699,  p.  1049;  §  1699,  p.  1050; 

§  1811,  p.  1110;  §  1832,  p.  1127;  §1863, 

p.  1159;  §  1888,  p.  1181;  §  1901,  p. 

1188;  §  1918,  p.  1195;  §  1921,  p.  1196. 
Stevens,  Bank  v. 
Stevens,  Briggs  v. 
Stevens,  Davis  v. 
Stevens,  Dunnigan  v. 
Stevens,  In  re,  §  602,  p.  358;  §  603,  p. 

359;  §  614,  p.  364;  §  617,  p.  366;  § 


1486,  p.  885;  §  2259,  p.  1385;  §  2260, 

p.  1385;  §  2796,  p.  1637. 
Stevens,  Jones  v. 
Stevens  v.    Meyer,  §  2682,  p.  1594;  § 

2682,  p.  1595;  §  2687,  p.  1596;  §  2706, 

p.  1603;  §  2707,  p.  1604. 
Stevens  v.   Nave-McCord  Co.,  §  17,  p. 

34;  §  205,  p.  168;  §  233,  p.  182;  §  233, 

p.  183;  §  632,  p.  376;  §  28.36,  p.  1656; 

§  2888,  p.  1697;  §  2890,  p.  1697;  §  2893, 

p.  1698. 
Stevenson,  In  re,  §  189,  p.  154;  §  283, 

p.  205;  §  284,  p.  205;  §  1375,  p.  803; 

§  1454,  p.  863. 
Stevenson  &  King,  In  re,  §  1041,  p. 

593;  §  1042,  p.  593;  §  1047,  p.  595;  § 

1047,   p.    596. 
Stevenson  r.  Milliken,  §  1395,  p.  823;  § 

1407,  p.  834. 
Stevenson     r.      Milliken-Tomlinson,      § 

1343,  p.  786;  §  1343,  p.  787. 
Stewart,  In  re,  §  303,  p.  217. 
Stewart  v.  Piatt,  §  1144,  p.  674;  §  1209, 

p.  707;  §  1993,  p.  1234. 
Stewart,  Sonneborn  v. 
Stich  V.  Berman,  §  1170,  p.  687;  §  1182, 

.p.  692;  §  1182,  p.  693;  §  1367,  p.  794. 
Stiffler,  Githens  v. 
Stillwell,  In  re,  §  900,  p.  516. 
Stinson,  Stork  v. 
Stix,  Wolf  V. 
Stocking,  Savory  v. 
Stoddard,  In  re,  §  2492,  p.  1505. 
Stoever,   In   re,  §   707,  p.   425;   §   707,   p. 

426';  §  730,  p.  439;  §  840,  p.  484;  §  2189, 

p.  1346;  §  2191,  p.  1346;  §  2192,  p. 

1346;  §  2193,  p.  1346. 
Stoever,  Parmenter  M'f'g  Co.  z\ 
Stokes,  In  re,  §  34,  p.  54;  §  64,  p.  69; 

§  65,  p.  71;  §  1047,  p.  599;  §  1461,  p. 

867;  §  1611.  p.  978;  §  1612,  p.  979; 

§  1665,  p.  1031;  §  2233,  p.  1367;  §  2248, 

p.  1373;  §  2663,  p.  1585. 
Stone,  In  re.  §  1041,  p.  593;  §  1042,  p. 

593. 
Stone  z'.  Jenkins,  §  2347,  p.  1424. 
Stone  &  Supply  Co.,  Weaver  v. 
Stoner,  In  re,  §  1135,  p.  648. 
Storck  Lumber  Co..  In  re,  §  97,  p.  94; 

§  166,  p.  140;  §  321,  p.  224;  §  333,  p. 
227;  §  1602,  p.  967;  §  1625,  p.  989;  § 

1626,  p.  990;  §  1634,  p.  1008. 


2030 


TABLE  OF  CASES. 


125: 


itton,  Holden  v. 

luse  V.   Hooper,  §  59,  p.  65;  §  2232, 

1366;  §  2243,  p.  1371;  §  2251,  p.  1374; 

2457,  p.  1487;  §  2469,  p.  1492;  >: 


Storm,  In  re,  §  97,  p.  94;  §  142,  p. 

§  150,  p.  131. 
Stotts,  In  re,  §  2045,  p.  1267;  §  2053, 

p.  1275;  §  2054,  p.  1276;  §  2089,  p. 

1293;  §  2091,  p.  1295. 
Stout,  In  re,  §  643,  p.  383;  §  644,  p.  384; 

§  850,  p.  490;  §  1032,  p.  579;  §  1035, 

p.  587;  §  1047,  p.  597;  §  1310,  p.  767; 

§  2861,  p.  1670. 
Stover,  In  re,  §  824,  p.  477.  , 
Strain  v.   Gourdin,  §  131,  p.  115. 
Strait,  In  re,  §  265,  p.  197. 
Strait,  State  v. 
Stratemeyer,  In  re,  §  2045,  p.  1267;  § 

2078,  p.  1287;  §  2082,  p.  1288;  §  2086, 

p.  1291;  §  2087,  p.  1293;  §  2088,  p. 

1293. 
Stratton,  Holde 
Strause  v.   H 

p.  1366;  §  2: 

§     2457,     p.     1487;   §    2469, 

2480,    p.    1496. 
Strickley,  Highland  Boy  v. 
Strobel  v.  Knost,  §  1421,  p.  843. 
Strohl,  ex  rel.  v.  Sup.  Ct.  Kings  Co.,  § 

150,   p.   130;   §    1634,  p.   1008. 
Stroud  V.  McDaniel,  §  1199,  p.  697. 
Stroud,   McDaniel  v. 
Structural  Stee]   Car  Co.,  In  re,  §  707, 

p.  425. 
Stucky    V.    Masonic    Savings    Bank,    § 

1407,  p.  835. 
Studebaker,   In   re,   §   2550,   p.   1537. 
Stumpf.   In   re,   §   2898,  p.   1701;   §   2928, 

p.    1714. 
turgeon.  In  re,  §  552,  p.  336;  §  1570,  p. 

943;  §  1571,  p.  943. 
Sturgis    V.    Corbin,    §    1934,    p.    1208;    § 

1953,  p.   1216;   §   1953,  p.  1217;  §   1954, 

p.    1218;    §    1960,    p.    1221;    §    1965,    p. 

1224. 

Sturgis  V.  Crowninshield,  §  1627,  p.  992; 

§   1631,  p.  1003;  §   1632,  p.   1004. 
Stursburg,  A^lowitch  v. 
Stuyvesant,  In  re,  §  1547,  p.  925;  §  1573, 

p.  943. 


St 


p.  943. 
Styer,  In  re,  §  532,  p.  331;  §  533,  p.  331; 

§  1927,  p.  1204;  §  1945,  p.  1214;  §  1946, 

p.  1214;  §  1971,  p.  1226;  §  1975.  p. 

1228. 
Suffel  V.    Nat'l  Bk.,  §  1402,  p.  830;  § 


1403,  p.  830;  §  1407,  p.  834;  §  1410,  p. 
836:  S  1410.  D.  837:  8  1729.  o.  1064. 


Su 


836;  §   1410,  p.   837;  §   1729,  p.   1064. 

enheimer.    In    re,    §    584,    p.    351;    § 
588    "    ■'''''■  «  ^--^    -    ^«« 


nneiiiier,    xii    ic,    s    oo'±,    p.    ooi,    jj 
3o,  p.  353;  §  614,  p.  365. 
Sullivan,  In  re,  §  1041,  p.  593;  §  1042,  p. 

593;  §  1047,  p.  595;   §  2691,  p.  1597;   § 

2754,  p.  1620. 
Sullivan,  King  v. 
Sully,  In  re,  §  821,  p.  476;  §  915,  p.  521; 

§   818,  p.   475;   §  822,   p.  476;   §   824,  p. 

477;    §    824,    p.    478;    §    826,    p.    479;    § 

827,  p.  479;  §  2116,  p.   1304;  §  2119,  p. 

1307. 
Summers  v.  Abbott,  §  142,  p.  125;  §  144, 

p.   127;   §   1606,  p.  976;   §   1614,  p.  980; 

§    1615,   p.'982. 
Sumner,   In  re,  §   571,  p.   346;   §   814,  p. 

474;  §  815,  p.  474;  §  844,  p.  486;  §  846, 

p.  488;   §   863,  p.   496. 
Sundheim,    Bank  v. 
Sundheim    v.  Ridge  Ave.  Bk.,  §  1396,  p. 

823:   §    1396,   p.   824;   §    1398,   p.   826;   § 

1399,  p.  827;  §  1400,  p.  828;   §  1401,  p. 

829. 


829. 
Sundheim,  Ridge  Ave.  Bk.  v. 
Sunseri,   In   re,  §   336,   p.   231;   §   340,   p. 
~       1,  p.  233;  §  355,  p.  237;  §  355, 
1863,  p.  1159;  §  1864,  p.  1159. 


Sunseri,   In   re,  §   336,   p 

233;  §  341,  p.  233;  §  35      . 

p.  238;  §  1863,  p.  1159;  §  1864,  p 
Superior  Court,  Herron  Co.  v. 
Sup.    Ct.    of    King    Co.,    State    ex 

Strohl  z'. 
Surety   &   Guarantee   Trust   Co.,   In   re, 

§  79,  p.  79;  §  82,  p.   82;   §  83,  p.  83;   § 
:•    s   QA    T^    89. 


rel. 


94,   p.   88;   §   94,   p.   89. 
Sutherland   v.    Lasher,   §   486,   p.   311;    § 
489,  p.  312;   §  2443,  p.  1477;   §  2667,  p. 
p.     1595:   §      276 
1626;   §   2777,  p. 


489,  p.  312:   §   2443,  p.   147.,    ^ ,  ^ 

1587;  §  2686,  p.  1595:  §  2764,  p 
1624;  §  2774,  p.  1626;  §  2777,  p.  1627; 
§   2781,  p.    1628. 

Sutter    Bros.,    In    re,    §    1572,    p.    943;    § 
1705,   p.   1051. 

Swafford  v.   Cornucopia   Mines,   §   1686, 
p.  1037. 

at'l  Bk.,  §  17,  p.  34; 

§ 

759;   § 


p.    1U,)(. 

Svvarts  V.  Fourth  Nat'l  Bk.,.  §  17,  p.  34; 
§  629,  p.  374;  §  644,  p.  384;  §  645,  p. 
387;  §  756,  p.  449;  §^757,  p.  450;  § 
1274,  p.  753;  §  1276.  p. '754;  §  1277,  p. 
756;  §  1288,  p.  759;  §  1289,  p.  759;  § 
1310,  p.  767;  §  1385,  p.  815;  §  1387, 
p.  818;  §  1390,  p.  820;  §  1411,  p.  838; 
§   1421,   p.   844;   §   2741,  p.   1615. 

Swarts  V.    Hammer,   §   2152,  p.   1329. 


TABLE  OP  CASES. 


2031 


p- 


18; 
1,  p. 
644, 
767; 
P- 


20 


Swarts,  People  v. 

Swarts  V.  Siegel,  §  20,  p.  37;  §  22, 

§   231,  p.   180;   §  419,  p.  270;   §   CI 

362;  §  611,  p.  363;  §  629,  p.  374;  § 

p.   384;    §   645,   p.   387;   §    1310,   p. 

§  1411,  p.  838;  §  1421,  p.  843;  §  222 

1361;   §   2220,  p.   1362. 
Sweetser,    Pembroke    &    Co.,    In    re,    § 

686,  p.  416. 
Swift.  In  re,  §  629,  p.  374;  §  636,  p.  378; 

§   640,  p.   381;  §   672,  p.  407;   §  674,  p. 

411;  §  707,  p.  426;  §  766,  p.  455;  §  804, 

p.  470;   §  1519,  p.  904;  §  1521,  p.  905; 

§  1884,  p.  1173;  §  2236,  p.  1367;  §  2839, 

p.    1659;    §    2845,    p.    1661;    §    2861,    p. 

1672. 
Switzcr,   In   re,   §    1842.   p.    1138;   §    1850, 

p.  1149;  §  1859,  p.  1157. 
Swords,    In    re,   §    1032,   p.    579;    §    1034, 

p.  585;  §  1034,  p.  587. 
Sykes,  In  re,  §  2417,  p.  1464. 
Syman,  Harvester  Co.  v. 
Syman,   International   Harvester  Co.  v. 
Symonds,  Elmore  v. 
Taft  V.  Century  Savings  Bk.,  §  29,  p.  45; 

§  30,  p.  46;  §  2888,  p.   1697;  §  2893,  p. 

1698:   §   3004,   p.   1739. 
Taft,    In   re,   §    1883.   p.    1169;   §    1883.   p. 

,1172;  §  2282,  p.  1396;   §  2839,  p.  1659; 

§  2847,  p.  1662;  §  2849,  p.  1663;  §  2855, 

p.    1666;    §    2857,    p.    1668;    §    2942,    p. 

1719;  §  2947,  p.   1722;  §  2948,  p.  1722; 

§  2649,  p.  1722:   §  2955,  p.  1724. 
Talbott,  Bashinski  v. 
Talbott,   In   re,   §   627,   p.    373;    §   631,   p. 

375;  §  780,  p.  461;  §  798,  p.  467. 
Talton,    In    re,    §    2045,    p.    1267;   §    236S, 

p.   1435. 
Tanner,    In    re,    §    1189.   p.   695;    §    1191, 

p.  695;  §  1422,  p.  844;  §  1427,  p.  846. 
Tanner,  Olney  v. 
Taplin,  In  re.  §  2596,  p.  1553;-  §  2596,  p. 

1554;   §   2605,   p.   1558. 
Tarante,   ex   rel.   t'.    Erlanger,   §   472,   p. 

.306. 
Tatem,   Mann   &   Co.,   In   re,   §   1241,   p. 

736;  §  1614,  p.  981. 
Tatman  v.  Humphrey,  §  1369,  p.  795. 
Tatman,   Humphrey  2'. 
Taylor,  Hunt  v. 
Taylor,   In  re,  §  30.   p.   48;   §   46,  p.   59; 

§    46,    p.    60;    §    244.    p.    187;    §    245,    p. 


188;    §    317,    p.    222;    §    320,    p.    223;    § 

330,  p.   226;   §   1098,  p.   623;   §   1841,  p. 

1136;  §  1842,  p.  1137. 
Taylor,   Lumber  Co.  z'. 
Taylor,  North,  Trustee,  v. 
Taylor  v.   Taylor,   §   896,  p.   511;   §   896, 

p.  512;   §  1455,  p.   863;   §   1582,  p.  954; 

§  1586,  p.  960;  §   1593,  p.  964. 
Teague,  In  re,  §  1412,  p.  838. 
Tebbetts,  In  re,  §  2460,  p.  1488. 
Tebo,  In   re,   §   1898,  p.   1187;   §   1989,   p. 

1233;   §  1993,  p.  1234;  §  2030,  p.  1260; 

§  2045,  p.  1267. 
Tecopa   Min.   &  Smelt  Co.,   In  re,  §   84, 

p.  83;  §  90,  p.  87. 
Tefft    V.    Providence    Washington    Ins. 

Co.,  §  1122,  p.  641. 
Tefft-Weller  Co.,  MacDonald  v. 
Tenney,  May  v. 
Terrell,  Adams  v. 
Terrill  In  re,  §  1266,  p.  746;  §  1376,  p. 

803;   §   2043,   p.   1265;   §•  2045,   p.    1267; 

§  2090,   p.   1294;   §   2090,  p.   1295. 
Terry  z:  Johnson,  §  1510,  p.  902;  §  1511, 

p.  902. 
Teschmacher   &  Mrazay,   In  re,  §   1652, 

p.    1022;    §    1653.    p.    1023;    §    1699,    p. 

1049;   §   1796,   p.   1089;   §   1863,   p.   1159; 

§  1864,  p.   1160. 
Teslow,  In  re,  §  1421,  p.  843. 
Teuthorn,   In  re,   §  902,  p.   516. 
Thackara,  Bassett  z'. 
Thackara,   In   re,   §   1265,  p.   745. 
Thackara    M'f'g   Co.,    In    re,    §    1140,   p. 

668;   §  1459,  p.  866. 
Theise,   Haack  z'. 
'"Viessen,   In  re,  §  987,  p.  550. 

omas   z'.   Adelman,   §   1395,   p.    823;   § 

1396,    p.    824. 
homas.  In  re,   §   135,  p.   119;  §   136,  p. 

119;  §  1072,  p.  610;  §  2258,  p.  1384;  § 

2457,  p.   1487;  §  2468,  p.  1491;   §  2469, 

p.    1492;    §    2662,    p.    1585;    §    2663,    p. 

1585;  §  2748,  p.   1617. 
Thomas,   Merchants'  Bk.  z'. 
Thompson  r.  Fairbanks,  §  1139,  p.  667; 

§   1140.  p.  668;   §  1140,  p.  669; 


Thi 
Th 


Tl 


)mpson  z'.  I'airbanks,  §  1139,  p.  667; 
1140.  p.  668;   §  1140,  p.  669;  §   1140, 

671;  §  1144,  p.  673;  §  1214,  p.  717; 
1235,  p.  734;  §  1237,  p.   735;   §.1238, 

735;  §  1258.  p.  742;  §  1371,  p.  800; 


:58.  p.  742;  §  1371,  p.  800; 
i.i.  p.  »02;  §  1436,  p.  849; 
865;  §  1489,  p.  886;  §  1489, 


p.  735;  §  1258.  p.  742;  § 

§  1373,  p.  802;  §  1436,  p.  849;  §  1459, 

D.  865:  §  1489.  n.  886;  §   " 


p.  888; 


2032 


TABLE  OF  CASES. 


§  1492,  p.  890;  §  1498,  p.  895;  §  1505, 
p.  901;  §  1896,  p.  118n 


p.  901;  §  1896,  p.  1185. 
Thompson,  In  re,  §  48,  p.  61;  §  50,  p. 
62;  §  233,  p.  182;  §  1047,  p.  596;  § 
1047,  p.  598;  §  1096,  p.  622;  §  1098,  p. 
623;  §  1202,  p.  698;  §  1602,  p.  967; 
§  1604,  p.  975;  §  1611,  p.  978;  §  1612, 
p.  979;  §  1665,  p.  1031;  §  1824,  p.  1120; 


p.  yvy;  §  J-0d5,  p.  1031;  §  1824,  p.  1120; 
§  1827,  p.  1122;  §  1836,  n  1129-  8  1953. 
1217. 


Th 


Th 


p.  1129;  §  1953, 

1217. 

..ompson  ^Mercantile  Co.,  In  re,  §  693, 

p.  420;  §  1485,  p.  884;  §  1487,  p.  885; 

§  1490,  p.  888. 

hompson's  Sons,  In  re,  §  617,  p.  366; 

§  717,  p.  430;  §  736,  p.  440;  §  1416,  p. 

839;   §   1421,   p.    844;   §    1427,   p.    846. 
Thompson,  Watschke  v. 
Thompson,  White  v. 
Thornor,  Ahl  v. 

Thornton  v.  Hogan,  §  444,  p.  283. 
Thornton  v.  Nichols  ■&  Lemon,  §  2718, 

p.    1607;    §    2719,    p.    1607;    §    2722,    p. 

1607;  §  2728,  p.   160&. 
Thorp,    In    re,    §    1138,    p.    663;    §    1207, 

p.   700;   §  1212,  p.  710;   §  1230,  p.   732; 

§  1248,  p.  740. 
Throckmorton,  In  re,  §  1960,  p.  1221;  § 

2942,  p.  1720. 
Tice,    In   re,    §    1140,   p.    667;    §    1228,   p. 

728. 
Ticknor,  Paret  z\ 
Tiffany   v.    Boatman's    Inst.,    §    1500,    p. 

896;  §  1504,  p.  899. 
Tiffanj^  Hosmer  v. 
Tiffany,   In   re,   §   972,   p.   545;   §  975,   p. 

546;    §    1265,    p.    745;    §    1439,    p.    850; 

§  1654;  p.  1028;  §  1901,  p.  1188;  §  1907, 

p.    1191;    §    2446,    p.    1478;    §    2655,    p. 

1578. 
Tiffany    z:'  Institution,    §    1314,    p.    770; 

§   1503,   p.   899. 
Tiffany  v.    La    Plume    Condensed   Milk 

Co.,  §  31.  p.  52;  §  95,  p.  92;  §  97,  p.  93. 
Tiffany  z:   Lucas,  §  1494,  p.   892. 
Tiffin  Sav.  Bank,  Keppel  v. 
Tifft,  In  re,  §  1705,  p.  1051. 
Tift,  Silvery  Co.  v. 
Tilden,    In   re,   §   523,   p.   325;   §    536,   p. 

331;   §   2141,   p.   1319;   §   2141,  p.   1320; 

§  2146,  p.  1323. 
Tillyer,  In  re,  §  2522,  p.  1521. 


Tindle    v.    Birkett,    §    2731,    p.    1610;    § 

2732,  p.   1612;   §  2733,  p.   1613;   §  2748, 

p.    1617;    §    2783,    p.    1628;    §    2784,    p. 

1629;   §  2785,  p.  1629. 
Tinker,  Colwell  v. 
Tinker   v.    Colwell,    §    2754,    p.    1620;    § 

2760,   p.   1621. 
Tinker,   In   re,   §   2468,   p.   1491;    §   2470, 

p.    1493;    §    2472,    p.    1494;    §    2662,    p. 

1584;    §   2665,   p.   1587. 
Tirre,  In  re,  §  205,  p.  168. 
Title  &  Trust  Co.,  Bank  v. 
Title  &  Trust  Co.  v.   Pearlman,  §   393, 

p.  257;  §  399,  p.  261. 
Tobias,  In  re,  §  1035,  p.  589;  §  1047,  p. 

595;  §  1098,  p.   623. 
Todd,  In  re,  §  490,  p.  312;  §  535,  p.  331 

§   1050,  p.  603;  §  1579,  p.  945;   §  1995 

p.    1234;    §    2002,    p.    1244;    §    2003,    p 

1244;  §  2004,  p.  1245;  §  2005,  p.   1245 

§  2006,  p.  1245;  §  2007,  p.  1246;  §  2011 

p.    1249;    §    2027,    p.    1258;    §    2031,    p 

1260;  §  2494,  p.   1505;  §  2539,  p.   1528 

§  2547,  p.   1534. 
Tollett,  In  re,  §  1062,  p.  607;  §   1095,  p. 

621;    §   1096,   p.   622. 
Tomlinson  v.  Bk.  of  Lexington,  §  1297, 

p.  763;  §   1329,  p.  778;   §  1341,  p.   785; 

§  1370,  p.  797;   §  1396,  p.   825. 
Tomplins   z\    Hazen,   §   2718,   p.    1607.' 
Tonawanda  Street  Planing  Mill  Co.,  In 

re,  §  188,  p.  154;  §  189,  p.  154. 
Tontine  Surety  Co.,  In  re,  §  87,  p.  85. 
Toof  z:  Martin,  §  132,  p.  115;  §  132,  p. 

117;    §    1399.    p.    827;    §    1409,    p.    836; 

§  1410,  p.  837. 
Toothacker,  In  re,  §  872.  p.  499;  §  1217, 

p.  722;  §  1499,  p.  895;  §  2500,  p.  1507; 

§    2502,    p.    1507;    §    2507,    p.    1508;    § 

2505,  p.   1508;   §  2521,  p.  1520;   §  2541, 

p.    1529;    §    2816,    p.    1648;    §    2822,    p. 

1649. 
Topliff,   In.  re.  §   804,  p.  470;   §   1418,  p. 

840;  §  1419*,  p.   841. 
Topliff,   Parsons  z'. 
Torrance.  ]\Iollan  v. 
Torrance  v.  Winfield  Nafl  Bk.,  §  1370, 

p.  797. 
Torre3%  Frey  z\ 
Towne,  In  re,  §  725,  p.  437. 
Townsend,  Couts  v. 
Township,  Smith  v. 


TABLE  OF  CASES. 


203S 


Tracy,  In  re,  §  2663,  p.  1585. 
Traders'  Bk.  v.  Campbell,  §  131,  p.  114 

§  1180,  p.  691. 
Traders'  Ins.  Co.  v.  Mann,  §  899,  p.  515 

§  899,  p.   516;  §  1641,  p.  'lOll;  §  1721 

p.    1061;   §    1722,    p.    10t52;   §    1797,    p 

1093.- 
Trainos,  Gruenberg  v. 
Traphagen,  Ex  parte,  §  2460,  p.  1488. 
Treat    v.    Wooden,    §    1780,    p.    1080;    § 

1785,  p.   1081;  §   1797,  p.   1092;  §   1814, 

p.  1112. 
Tredway,  Kaufman  v. 
Tribelhorn,   In  re,   §   204,  p.  167;   §   208, 

p.   171;   §  209,  p.   171;  §  213,  p.   172;  § 

■213,  p.  173;  §  237,  p.  185. 
Trigg,  Seaboard  Steel  Casting  Co.  v. 
Troeder,  In  re,  §  2523,  p.  1523;  §  2533, 

p.    1526;    §    2583,    p.    1549;    §    2603,    p. 

1557;  §  2606,  p.  1558;  §  2635,  p.  1571; 

§   2639,  p.   1572. 
Trombly,  In  re,  §  780,  p.  461;  §  781,  p. 

461;   §   798,   p.   466;   §   1047,   p.   597. 
Troppner,  Elliott  v. 
Troth,  In  re,  §  2011,  p.  1249;  §  2117,  p. 

1305;   §   2660,   p.   1578. 
Troy   Steam   Laundering   Co.,   In   re,   § 

87,   p.   86;   §  94,  p.   88. 
Troy  Wagon   Works  v.   Vastbinder,    § 

121,   p.    Ill;   §   126,   p.    113;    §    329,   p. 

226;   §   333,   p.   226;   §   1228,   p.   728;   § 

1299,  p.  763;  §  1303,  p.  764;  §  1342,  p. 

786;  §  1353,  p.  791. 
Troy  Woolen  Co.,  In  re,  §  2827,  p.  1653. 
Trust  V.  Child,  §  1370,  p.  797. 
Trust  Co.,  Carson,  Pirie  &  Co.  v. 
Trust  Co.,  Frazier  v. 
Trust  Co.,  Stern,  Falk  &  Co.  v. 
Trust  Co.  V.   Wallis,   §  1819,  p.   1115;  § 

1822,  p.  1119;  §  1840,  p.  1135;  §   1842, 

p.    1138;    §    1844,    p.    1141;    §  '1856,    p. 

1154. 
Trust  Co.  &  Warehouse  Co.  v.  Wilson, 

§  1146,  p.  677. 
Trustee  v.  Mercantile  Nat'l  Bk.,  §  1171, 

p.  688;   §   1187,  p.   694. 
Tucker  v.  Curtin,  §  798,  p.  466;  §  1150, 

p.  679. 
Tucker,   In  re,  §  780,  p.  461;  §  798,  p. 

466:  §  858,  p.  492. 
Tudor,  In  re,  §  1819,  p.  1115;  §  1836,  p. 

2  Rem  B— 53 


1864,  p.  1161;  §  1901,  p.  1188;  §  1910, 

p.  1191;  §  2682,  p.  1594;  §  2700,  p. 

1601;  §  2702,  p.  1602;  §  2704,  p.  1603; 

§  2705,  p.  1603;  §  2706,  p.  1603. 
TurnbuU,  In  re,  §  1047,  p.  597;  §  1085, 

p.  615. 
Turner,  Davis  v. 
Turner  v.   Fisher,  §  1395,  p.  822;  §  1396^ 

p.  824;  §  1400,  p.  828;  §  1403,  p.  831; 

§  1407,  p.  834;  §  1409,  p.  835. 
Turner,    Phillips   v. 
Turner  v.  Turner,  §  683,  p.  415;  §  2691, 

p.   1597;  §   2756,  p.   1620. 
Turner,  Turner  v. 
Turpin,  Sawyer  v. 
Turrentine    z\     Blackmore,    §    2330,    p. 

U414. 


T 


1128;  §  1841,  p.  1137;  §  1845,  p.  114L, 
§  1854,  p.  1153;  §  2861,  p.  1670. 
une.  In  re,  §  1028,  p.  577;  §  1100,  p. 
626;  §  1447,  p.  855;  §  1462,  p.  868;  § 

-I  ICO   »^   QCa.   S  -I  ARQ       r^   Q7Q-   S 


1463,  p.  869;  §  1468,  p.  873;  §  1582,  p. 
I;  §  1827,  p.  1124;  §  1863,  p.  1159;  § 
U  n  llfil!  8  1901.  n.  1188:  S  1910. 


952 


Turrentine    v. 


Blackwood,    §    1582,    p. 


mtme    v.    Blackwood,    §    issz,    p. 

949;   §  1582,  p.  953;  §  1797,  p.  1094;  § 

1798,  p.   1098. 
Tuttle,  Goodall  v. 
Tuxbury  v.  ]\Iiller,  §  2814,  p.  1647. 
Twadell,  In  re,  §  970,  p.  543;  §  971,  p. 

544;  §  972,  p.  544;  §  972,  p.  545. 
Tweed,  In  re,  §  1212,  p.  711;  §  1215,  p. 

718;   §   1228,  p.   729;   §   1241,   p.   736;  § 

1249,  p.  740. 
Tybo  Min.   &  Reduc.   Co.,  In  re,  §  18, 

p.   36;   §   294,   p.   213;   §   295,  p.   213;   § 

297,  p.   214;   §   1705,   p.   1053. 
Tyler,   In  re,   §  1439,  p.   850;   §  1605,  p. 

975. 
Tyrrel  v.  Hammerstein,  §  2761,  p.  1622; 

§  2773,  p.  1626. 
Ulfelder  Clothing  Co.,   In  re,  §  444,  p. 

•283;  §  448,  p.  295. 
Ullman,  \^ehoa  v- 
Ullman,  Vernon  z'. 
Umstadtter,  Ludvigh  zK 
Union    Feather   &   Wool   Mfg.    Co.,   In 

re,  §   1314,   p.   772. 
Union  Nat'l   Bk.  v.   ]McKay,  §   1173,  p. 

688. 
Union  Nat'l  Bk.  v.  Neill,  §  794,  p.  465; 

§    2240,    p.    1370;    §    2887,    p.    1696;    § 

2898,   p.   1701;    §   2918,   p.   1709. 


2034 


tabive;  of  cases. 


Union  Surety  Co.,  U.  S.  ex  rel.  v. 
Union  Surety  &  Guaranty  Co.,  Alex  v. 
Union  Trust  Co.  v.  Bulkeley,  §  555,  p. 

338;    §    556,    p.    338;    §    853,    p.    490;    § 

§   858,  p.   490;   §    1140,   p.    670;   §    1150, 

p.  679. 
Union     Trust     Co.,      Euclid     National 

Bank  v. 
Union  Trust  Co.,  In  re,  §  1885,  p.  1177; 

§  1967,  p.  1225;  §  2881,  p.  1690. 
United  Button  Co.,  In  re,  §  293,  p.  213; 

§   296,  p.   213;   §   297,  p.   214;   §  297,  p. 

215;    §    636,    p.    377;    §    636,    p.    378;    § 

702,    p.    423;    §    705,    p.    424;    §    710,    p. 

427;    §    712,    p.    428;    §    713,    p.    428;    § 

714,  p.  428;  §  1705,  p.  1052;  §  2160,  p. 

1333;   §  2731,  p.  1611;  §  2731,  p.  16'12. 
United  States  v.  Behan,  §  687,  p.  417. 
United  States  Hotel  Co.,  In  re,  §  82,  p. 

81;    §    83,   p.    82;    §   83,   p.    83;    §   94,   p. 

88;  §  94,  p.  89. 
Unitype   Co.  v.  Long,  §   1241,  p.   736;  § 

3000,    p.'  1738. 
Unmack  v.  Douglass,  §  1494,  p.  891. 
Upshur  V.  Briscoe,   §   2785,  p.   1630. 
Upson,    In    re,    §   636,   p.    378;    §   799,   p. 

467;   §   2806,   p.    1644;   §   2815,   p.    1647; 

§  2815,  p.  1648. 
Upson,  Marks  v. 
Upson    V.    Mt.    Morris    Bk.,    §    1283,    p. 

758;   §   1303,  p.   765;   §   1343,   p.   786;   § 

1343,  p.  787;  §  1364,  p.  794;  §  1395,  p. 

822:   S   1396.  D.   824:   §  1396.  p.   825;   § 


1343,  p.  ■{»'{;  9  ic!t)4,  p.  iyi;  § 

822;   §   1396,  p.   824;   §  1396,  p.   825;   § 

1397,  p.  825;  §  1399,  p.  827;  §  1405,  p. 

832;  §  1407,  p.  834;  §  1409,  p.  836. 
Upson,  Young  v. 
Upton,  Sawyer  v. 
Urban  &  Suburban,  In  re,  §  30,  p.  49; 

§314,   p.    221;   §   433,   p.   277;    §   436,   p. 

279;  §  437,  p.  280. 
U.  S.,  Bartlett  v. 
U.  S.,  Boyd  v. 
U.   S.    V.  Carll,  §  255,  p.  191 

1560. 
U.   S.  V.   Cohn,  §   2319,  p.   1410;   §   2316, 

p.    1410;    §    2318,    p.    1410;    §    2319,    p. 

1411;  §  2482,  p.  1501;  §  2498,  p.  1506; 

§   2500,   p.   1506;    §   2508,   p.   1509. 
U.  S.,  De  Lemos  v. 
U.  S.,  Edelstein  v. 
U.  S.  ex  rel.  Adler  v.  Hommond,  §  17, 

p.    32;   §   23,   p.   38;   §    2345,   p.    1423;   § 


2608,  p. 


2349,  p.    1426;   §   2384,   p.   1441;   §   2385, 

p.    1442;  §    2410,    p.    1454;   §    2411,    p. 

14.54;    §    2414,    p.    1459. 
U.  S.  ex  rel.  Scott    v.  McAleese,  §  467, 

p.   305;   §   472,  p.   306. 
U.    S.    ex    rel.    v.    Union    Suretj^    Co.,    § 

877,  p.  502. 
U.  S.  Fidelity  &  Guaranty  Co.,  Wood  v. 
U  S.,  Field  v. 
U.   S.   Food   Co.,   In  re,   §   1223,   p.   725; 

§  1314,  p.  771;   §   1319,  p.   774;   §  1379, 

p.   804;   §   1500,  p.   896. 
U.    S.    V.    Goldstein,    §    1557,    p.    932;    § 

1558,  p.  933;   §  1562,  p.  939;   §  2320,  p. 

1411;   §  2330,  p.  1414;  §  2333,  p.  1417; 

§    2338,    p.    1419;    §    2491,    p.     1504;   § 

2500,  p.   1506. 
U.  S.  V.  Lake,   §   171,  p.   145;   §  2316,  p. 

1410;   §  2321,  p.  1411;  §  2321,  p.   1412; 

§   2325,  p.   1412;  §  2326,  p.  1412. 
U.    S.,    Ledbetter   v. 
U.   S.  V.   Levinson   &  Kornblut,  §   2316, 

p.    1410;    §    2487,    p.    1503;    §    2500,    p. 

1506;  §  2511,  p.  1511;  §  2511,  p.  1512; 

§  2511,  p.  1513. 

U.  S.  z'.  Lowenstein,  §  2316,  p.  1410. 

U.   S.,   McNeil  V. 

U.  S.  V.    Marsh.  Chambers,  §  1556,  p. 

931;  §  2316,  p.  1410;  §  2323,  p.  1412. 
U.  S.,  Powell  V. 
U.  S.  V.   Simon,  §  1556,  p.  931 

933;  §  2324,  p.  1412;  §  23^ 
U.  S.,  Wagner  v. 
U.  S.  v.    Wechsler,  §  1547,  p.  924;  § 

2327,  p.  1413;  §  2524,  p.  1523;  §  2525, 

p.  1523;  §  2526,  p.  1523;  §  2533,  p. 

1526;  §  2535,  p.  1526;  §  2540,  p.  1528. 

U.  S.,  Wechsler  v. 

Utt,  In  re,  §  1965,  p.  1223;  §  1989,  p. 
1233;  §  1993,  p.  1234;  §  1996,  p.  1234; 
§  1996,  p.  1235;  §  1996,  p.  1236;  § 
2075,  p.  1286;  §  2103,  p.  1299;  §  2827, 
p.  1654;  §  2835,  p.  1656.. 

caro  z'.   Security  Bank,  §  59,  p.  65; 
§  60,  p.  67;  §  150,  p.  'l30;  §  247,  p. 
189;  §  2238,  p.  1369;  §  2255,  p.  1375. 
entine,  Blake  zj. 
entine.  In  re,  §  1917,  p.  1194. 


1558,  p. 
p.    1413. 


Vac 


Val 
Val 
Van 
Van 
Van 


Alstyne,   In   re,  §   1650,  p.   1015. 
Buren,  In  re,  §  681,  p.  413. 


TABI.E  OF  CASES. 


2035 


Van  Ingen    v.    Schophofen,    §    2544,    p. 

1532;   §   2544,  p.   1533;   §   2549,   p.   1535. 
Van  Kirk  v.   Slate  Co.,  §  1005,  p.   558; 

§  1014,  p.  564;   §'1015,  p.  565;  §   1016, 

p.  566;  §  1017,  p.  567;  §  1116,  p.  639. 
Van  Nostrand,  Minon  v. 
Van  Orden,   In  re,  §  683,  p.   415. 
Van  Sickel,  Jacobs  v. 
Varick  Bank,  Hiscock  v. 
Varnish    Wks.    v.    Haydock,    §    638,    p. 

379;  §  639,  p.  381. 
Vastbinder,  In  re,  §   140,  p.   122;   §  140, 

p.   123,  §  213,  p.    173;   §   233,  p.   183;   § 

237,    p.  "185;    §    257,   p.    192;    §    257,    p. 

193;    §    258,    p.    194;    §    261,    p.    195;    § 

277,    p.    203;    §    280,    p.    204;    §    282,    p. 

204;    §    324,   p.    225;    §    1582,   p.    954;    § 

1662,  p.  1030;  §  1816,  p.   1114;   §  1827, 

p.    1122;    §   ,1901,    p.    1188;    §    1903,    p. 

1190. 
Vastbinder,  Troy  Wagon  Works  z'. 
Vaughn,  In  re,  §  1429,  p.  847;  §  1464,  p. 

871. 
Vehon    v.    Ullman,    §    2489,    p.    1504,    § 

2502,   p.   1507;   §   3001,   p.    1738. 
Veitch,  In  re,  §  2141,  p.  1320;  §  2146,  p. 

1323;   §   2147,   p.    1324. 
Veneer   &   Panel   Co.,   In   re,   §   1342,   p. 

785;   §   1370,  p.  798;  §  1372,  p.  801. 
Vernon    v.    Ullman,    §    2514,   p.    1514;    § 

2541,   p.    1531. 
Vetterman,  In  re,  §  141,  p.  124;  §  143,  p. 

126;  §  257,  p.   193. 
Victor  V.  Lewk,  §  360,  p.  242;  §  1917,  p. 

1194;    §   2017,   p.    1253. 
Viquesnay    v.    Allen,    §    401,    p.    262;    § 

1686,  p.  1037;  §  1712,  p.   1057;   §  1716, 

p.   !l058;    §    1718,    p.    1060;    §    1732,    p. 

0«07       r.       -IRKA 


1065;  §  2827,  p. 

Co.,    In    re, 


Virginia  Hardwood  Mfg.  Co.,  In 
§  444,  p.  284;  §  1395,  p.  823;  §  1398, 
p.  826;  §  1399,  p.  826;  §  1399,  p.  828; 
§  1403,  p.  830;  §  1404,  p.  831;  §  1776, 
o.  1078. 


p.  1078. 

Vogcl,   In  re,  §  1798,  p.  1098. 
VoIIkommer  v.  Frank,  §  1267,  p.  747;  § 

"1725,  p.  1063;  §  1813,  p.  1111. 
Vollkommers,  Frank  v. 
Von   Hartz,    In    re,    §    1705,    p.    1051;    § 

1867,  p.  1162. 
Von    Kerm,    In    re,    §    1048.    p.    599;    § 

1048,  p.  601;  §  1051,  p.  603;  §  1052,  p. 

603;   §    1057,    p.    605;  §    1063,    p.    607; 


§ 


1065,  p.  608;   §  1066,  p.  608;  §   1070, 

p.   610. 
Vorchofsky,  Friedman  v. 
Waddell,  E-x  parte,  §  1472,  p.  874. 
Wagar,  Cohen  v. 
Wager  v.   Hall,  §  132,  p.  115;   §  132,  p. 

117;    §    1496,   p.   895. 

V 


Wagner,  Hays 


Wagner,  In  re,  §  2427,  p.  1466. 

agner  v.  U.  S.,  §  464,  p.  304;  §  472,  p. 
sn6:   8   2693.   n.   1598. 


Wag....   ..  ^.  ^.,  ,   ..^ 

306;  §   2693,  p.  1598. 


Wagon    Co.,    Harriskamp   v. 

Walburn   v.    Babbitt,    §    1409,   p.    836;    § 

1410,  p.  837;  §  1496,  p.  894;  §  1496,  p. 

895. 


Wald,  Johnson  v. 

:r,  In  re,  §  lui~,  p.  ^^^^,  o  - 
1139;  §  1842,  p.  1140;  §  1845,  p 

K^       r^      1  1  f^i 


Johnson  v. 
Walder,  In  re,  §  1842,  p.  1138;  §  1842,  p. 
:  S  1842.  o.  1140;  §  1845,  p.   1143; 


§  1851,  p.  1151.      , 
Walker,  Brown  v. 
Walker,   In  re,   §   465,-  p.   305;   §   573,   p. 

348;    §    575,    p.    348;    §    580,    p.    350;    § 

1529,  p.  914;   §   1532,  p.  915;   §  1532,  p. 

916;  §  2461,  p.  1488. 
Wall  V.   Cox,  §  1653,  p.   1024;   §  1676,  p. 

1034;   §   1725,  p.  1063;   §   1726,  p.   1063. 
Wall,  Cox  V. 

Wallace,  In  re',  §  444,  p.  283. 
Walace,  Wiseman  z\ 
Wallblom,  Loomis  z'. 
Wallerstein   v.    Ervin,    §   235,    p.    183;   § 

802,  p.  468;  §  2243,  p.  1371. 
Walles,  Trust  Co.  v. 
Wallis,    American    Trust    Co.   v. 
Walsh,  In  re,  §  1556,  p.  931;  §  1558,  p. 

933;  §  1559,  p.  937;  §  1562,  p.  939. 
Walther,  In  re,  §  1852,  p.  1152;  §  2469, 

p.    1492;    §   2480,   p.   1497. 
Walton,   In   re,   §    1547,  p.   925. 
Ward,    In    re,    §   355,    p.    238;   §   399,   p. 

261;    §    541,    p.  .332;    §    672,    p.    407;    § 

1485,  p.  884;  §  1486,  p.  885;  §  1487,  p. 

885:  §  1653,  p.  1026;  §  1654,  p.  1028;  § 

1836,  p.  1129;  §  1905,  p.  1190. 
Ward   z'.    Kohn,    §    2047,   p.    1268. 
Ward,    Mahoney   v. 
Warden,    Electric    Corp'n   z'. 
Warehousing   Co.   v.    Hand,    §    il46,   p. 

677;  §  1207,  *p.  702;  §  1228,  p.  728;  § 

1265.  p.  746;  §  1372,  p.  801;  §  1702, 

p.  1051;  §  1900,  p.  1187;  §  2875,  p. 

1688;  §  2926,  p.  1714. 


2036 


tabi^e;  of  cases. 


p.  775. 


Waring  v.  Buchman,  §  1321,  p. 
Warne,  In  re,  §  2511,  p.  15112. 
Warner,  In  re,  §  189,  p.  154;  §  1454,  p. 

863. 
Warren   v.   Bank,   §   131,   p.    114;  §    136, 

p.  120. 
Warren  v.  Bishop,  §  2716,  p.  1606. 
Washburn  Bros.,  In  re,  §  438,  p.  281. 
Waterbury   Furn.   Co.,  In  re,   §   611,  p. 

363;  §  1287,  p.  758;  §  1311,  p.   768. 
Waterloo    Organ    Co.,   In   re,   §   533,   p. 

331;    §   802,   p.    469;    §    1238,    p.    735;    § 

1675,  p.   1033;   §  1800,  p.   1099;   §   1885, 

p.    1178;    §    1885,    p.    1181;    §    1896,    p. 

1185;     §     1965,     p.    ,1223;     §     1967,     p. 

1225;  §  1975,  p.  1228;  §  1994,  p.   1234; 

§   1996,   p.    1235;   §   1997,  p.    1236. 
Waters  v.  Davis,  §  1745,  p.  1071. 
Watertown     Carriage    Co.    v.     Hall,     § 

2783,  p.  1628;  §  2785,  p.  1630. 
Watertown,   Metcalf  v. 
Watkinson,  In  re,  §  709,  p.  427;  §  784,  p. 

462;  §  1419,  p.  841;   §   1425,  p.  845. 
Watkinson  Co.,  George,  In  re,  §  838,  p. 

483;   §    842,    p.    484;   §    847,    p.    489;   § 

848,  p.   489;   §  1570,   p.  943;   §   1575,  p. 

944. 
Watschke  v.  Thompson,  §  1429,  p.   847 

§   1480,  p.  882;    -        --  -  -        « 

p.   889. 
Watson 


Wats 


§   1489,  p.   887;   §   1489, 

V.    McDuff,    §    2625,    p.    1566;    § 
2626,   p.    1566. 

''atson  V.  Merrill,  §  451,  p.  297;  §  640, 
p.  381;  §  652,  p.  393;  §  653,  p.  396;  § 
653,  p.  397;  §  '656,  p.  400;  §  660,  p. 
402;  §  982,  p.  549;  §  2729,  p.  1609;  § 
2730,   p.    1610. 

Watson,  Wilbur  v. 

Watts,  In  re,  §  1602,  p.  967;  §  1602,  p. 
967;  §  1603,  p.  972;  §  1605,  p.  975;  § 
1625,  p.  987;  §  1626,  p.  990;  §  1634, 
p.  1008;  §  1860,  p.  1158;  §  2330,  p. 
1414;   §  2491,  p.   1504. 

Watts,   Wilder  v. 

Waugh,  In  re,  §  20,  p.  37;  §  428,  p. 
275. 

Waukesha  Water  Co.,  In  re,  §  1707,  p. 
1055;  §  1863,  p.  1159;  §  1866,  p.  1162; 
§  1887,  p.  1181;  §  1889^  p.  1182. 

Waxelbaum,  In  re,  §  33,  p.  53;  §  196, 
p.  160;  §  293,  p.  213;  §  297,  p.  214;  § 
299,    p.    216;    §    300,    p.    216;    §    304,    p. 


Weav( 


217;    §    414,   p.    268;    §    431,   p.   277;    § 

432,  p.  277;   §   1038,  p.  592;   §  1047,  p. 

599;  §  1098,  p.  623;  §  2861,  p.  1670. 
W.    &    B.    Bridge    Co.,    State    of    Penn- 
sylvania  V. 

/■eaver.  In  re,  §  1100,  p.  624;  §  1100,  p. 

625;  §  1104,  p.  628;  §  1108,  p.  633. 
Weaver    v.     Stone     &    Supply     Co.,     § 

2172,  p.  1338;   §  2175,  p.   1340;  §   2176, 

p.    1340. 
Webb,    In   re,    §    653,    p.   394;    §    656,   p. 

399;    §   2497,   p.   1506;   §   2508,  p.   1509; 

§    2541,    p.    1530. 
Webb  V.  Manheim,  §   1726,  p.  1063. 
Weber    Furn.    Co.,    In    re,    §    2361,    p. 

1433;  §  2482,  p.  1499;  §  2385,  p.  1441; 

§   2386,   p.    1442. 
Webster,  In  re,  §  58,  p.  65. 
Wechsler   v.    U.    S.,    §   2524,    p.    1523;    § 

2525,  p.   1523;   §  2526,  p.   1523;   §  2533, 

p.    1526;    §    2535,    p.    1526;    §    2540,    p. 

1528. 
Wechsler,  U.   S.   v. 
Wehmeyer,   Foryth    v. 
Weil,    In   re,    §    1169,    p.    687;    §    1879,   p- 

1165. 
Weinger,    Bergman     &    Co.,    In    re,    § 

359,   p.   241;   §  1443,  p.   854;   §   1586,  p. 

959;   §   1807,  p.   1102;   §   1863,   p.   1159; 

§   1901,  p.   1188;  §  1916,  p.  1194. 
Weinger,   In  re,  §   1429,  p.   848. 
Weinman,  In  re,  §  261,  p.  195;  §  269,  p. 

199;   §   269,  p.   200. 
Weinreb,  In  re,  §  1819,  p.  1115;  §  1850, 

p.    1147;    §    1851,    p.    1150;    §    2649,    p. 

1575. 
Weinstein,    Schiller   v. 
Weintraub,    In    re,    §    2436,    p.    1471;    § 

2437,   p.    1471. 
Weis,    Royston   v. 
Weisenberg  &  Co.,  In  re,  §  2244,  p.  1372; 

§   2245,  p.  1372;   §  2263,  p.  1386. 
Weissner,  In  re,  §  1287,  p.  758;  §  1311, 

n    7fifi 

1508;    §    2511, 

1079;  ■  § 
1883,  p.   1170. 


v-   768. 
Welch,   In   re,   §   2505,   p. 

p.    1512;   §   2521,  p.   1519. 
Welch    V.    Policy,    §    1780,    p.    ,    ^ 

1814,  p.  1112;   §   1883,  p.   1170. 
Welling,  In  re,  §  972,  p.  545;  §   1006,  p. 

559;  §  1015,  p.  565;  §  1016,  p.  566. 

''ellinston.    Sebrins-   ?'. 


Wellington,    Sebriug    c. 

Wells,    In    re,    Introd.     (m),    p.    14;    § 


TABLE  OF  CASES. 


2037 


1022,  p.  570;  §  1024,  p.  572;  §  103. 

578;   §   1035,  p.   589;   §   1101,  p.   62 

llOi,  p.  630;  §  1228,  p.  730;  §  1582 

p.    953;    §    1582,    p.    956;    §    ^'=°- 

958;  §  1796,  p.  1089;  §  1797, 

§  1807,  p.  1101;  §  1807,  p. 


101;    §    1807,    p.    1102;    § 


1807,  p.  1105;   §  1822,  p.   1119. 
Wells,  Mace  v. 


p.    956;    §    158 

vvcub,    iviace   v. 

Welty  V.   Welty,   §   683,  p.   415; 

p.  1611. 
Wenham  v.   Mallin,   §   2673 

2678,  p.  1592;  §  2fi'7j: 
Wenham.  Mallin  v. 
W 


P- 

7;  § 

p- 

p. 

p.    1093 


2731, 


din      t/,      nxaiiiii,      >(      ^\j  t  tjy     p.      loJUj 

:678,  p.  1592;  §  2678,  p.  1593. 
/enham.  Mallin  v. 

/enman,  In  re,  §  464,  p.  304;  §  471, 
306;   §   472,   p.   306;   §   2784,   p.   1629; 


2785,    p.    1629 


Wennian,  Whitney  v. 
Wertheimer,    In    re,    §    1303,    p.    765;    § 
I6l5,   p.   982;   §   2521,  p.   1519. 


\\ 


.  'escott  V.  Berry,  §  1625,  p.  989;  „ 
1626,  p.  991;  §  1628,  p.  994;  §  1629,  p. 
997;  §  1631,  p.  1003. 

West  V.  Bk.  of  Lahoma,  §  1180,  p.  691; 
§  1297,  p.  762;  §  1329,  p.  778;  §  1331, 
p.  780;  §  1341,  p.  785;  §  1385,  p.  815; 
§  1765,  p.  1075. 

'est  Co.  v.  Lea  Bros.,  §  26,  p.  41;  § 
145,  p.  128;  §  147,  p.  128;  §  147,  p. 
129;  §  149,  p.  129;  §  149,  p.  130;  § 
177,  p.  149;  §  259,  p.  195;  §  1603,  ;). 
971;  §  1603,  p.  973;  §  1610,  p.  978. 

West,  In  re,  §  177,  p.  149;  §  333,  p.  227; 
§  451,  p.  298;  §  1C47,  p.  599;  §  1098, 
p.  623;  §  1150,  p.  679;  §  2257,  p.  1377; 
§  2861,  p.  1670;  §  3006,  p.  1740. 

West,  Lea  Bros,  v; 

Western  Tie  &  Timber  Co.  v.  Brown, 
§'1176,  p.  689;  §  1179,  p.  690;  §  1180, 
n.   692:  S  1182.  o.  692:  S  1277.  o.  755: 


p.  692;  §  1182,  p.  692;  §  1277,  p.  755; 
§  1303,  p.  765;  §  132^    -    '''^s-   ^  ""-"if^ 

*^      ryot'    R    lon^      *-.      co 


5j  J.OV.O,  y.    .ua,  s  .Lo29,  p.  778;  §  1340. 

p.  784;  §  1396,  p.  824;  §  1396,  p.  825; 

§  1398,  p.  826;  §  1400,  p.  828;  §  1401, 

^   Qon.   S   11  OS   .^   CQO-  R   111-1  .^   QOO. 


§  1398,  p.  826;  §  1400,  p.  828;  §  1401 

p.  829;  §  1405,  p.  832;  §  1411,  p.  838; 

§  1418,  p.  840;  §  2910,  p.  1705;  §  3014, 

p.   1745. 
Western    Union    Cold    Storage    Co.    v. 

Hurd,    §    2747,    p.    1617;     §    2783,    p. 

1628;     §    2785,    p.     1629;     §    2788,     p. 

1632;   §   2789,   p.    1633. 
Westfall  Bros.  Co.,  In  re,  §  1542,  p.  910. 


Westheimer     v.     Howard,     §     2761,     p. 

1622;  §   2771,  p.  1626;   §  2774,  p.  1626. 
Westlund,    In    re,    §    2135,    p.    1318;    § 

2183,   p.   1343. 
West    Norfolk    Lumber    Co.,    In    re,    § 

1154,  p.  681;  §  1159,  p.  683;  §  1161,  p. 

684;  §  2205,  p.  1357. 
Wetmbre,  In  re,  §  887,  p.  505;  §  970,  p. 

543;  §  1130,  p.  643;   §  2469,  p.  1492;  § 

2481,  p.  1498;  §  2522,  p.   1523;  §  2583, 

p.    1549;    §    2595,    p.    1552;    §    2596,    p. 

1553;  §  2600,  p.  1554;  §  2603,  p.  1556; 

§    2605,    p.    1558;    §    2608,    p.    1560;    § 

2627,     p.     1567;     §     2635,     p.     1571;     § 

2639,   p.    1572. 
Wetmore  v.  Wetmore,  §  683,  p.  414;  § 

2756,  p.  1620. 
Wetstein  v.   Franciscus,  §   1395,  p.  823; 

§    1396,  p.   824;   §   1729,  p.   1064. 
Whaling,   Cady  v. 
Whealton  Restaurant  Co.,  In  re,  §  1160, 

p.  683;  §  2204,  p.  1356. 
Wheeler  v.  Simmons,  §  2716,  p.  1606. 
Wheeler,  Smith  v. 
Wherritt,   Shawham  v. 
Whipple,  In  re,  §  2385,  p.  1441. 
Whit,  Packer  v. 
White  v.  Bradley  Timber  Co.,  §  142,  p. 

124;    §    263,    p.    196;    §    264,    p.    197;    § 

265,   p.    197;    §   274,   p.    202;    §    1274,   p. 

753. 
White,   Bradley  Timber   Co.   v. 
White,   In   re,   §   26,   p.   40;   §   46,   p.   59; 

§   240,  p.   185;   §.243,  p.   187;   §   245,   p. 

188;    §    252,    p.    191;    §    257,   p.    192;    § 

259,    p.    194;    §    261,    p.    195;    §    268,    p. 

199;    §    269,    p.    199;    §    527,    p.    329;    § 

528,  p.   330;   §   1050,  p.   603;  §   1055,  p. 

605;   §   1066,  p.   608;   §   1082,   p.   613;   § 

1095,  p.  619;  §  1095,  p.  620;  §  1098,  p. 

623;   §    2603,   p.    1556;   §   2663,   p.   1585. 
White    Mountain    Paper    Co.,    In    re,    § 

87,   p.   86;   §   90,   p.   86. 
White  Mountain  Paper  Co.  v.  Morse,  § 

90,  p.   86;   §  97,  p.  93;   §   101,  p.   99;   § 

142,  p.  125. 
White,   Robinson  v. 
White  V.  Schloerb,  §  503,  p.  320;  §  523, 

p.  325;  §  1582,  p.  949;  §  1797,  p.  1092; 

§   11798,    p.    1098;    §    1800,    p.    1099;    § 

18S5.  p.  1178;  §  1901,  p.   1188;   §   1908, 

p.   1191. 


2038 


TABLE  OF  CASES. 


White   Star   Laundry   Co.,    In   re,   §   94, 

p.  88. 
White  V.   Thompson,   §   1100,   p.    624;   § 

1447,  p.  855;  §  1458,  p.  865;  §  1595,  p. 

964;   §   1910,  p.   1191;  §   2691,  p.  1597; 

§  2700,         


7, 


8  'tii^u,  p.  1601. 
Whitener,  In  re,  §  1582,  p.  949;  §  179., 

p.    1093;    §    1798,    p.    1098;    §    1800,    p. 

1099;  §  1873,  p.  1163;  §  1901,  p.  1188; 

§    ,1908,    p.    1191;    §    2891,    p.    1698;    § 

2904,  p.  1704;  §  2908,  p.  1705;   §  2913, 

p.    1708;    §    2917,    p.    1709;    §    2942,    p. 

1719. 
Whiting,    Ex   parte,    §    756,    p.    449. 
Whitley  Grocery  Co.  v.  Roach,  §  1375, 

p.  803. 
Whitmore,  Batchelder  &  Lincohi  Co.  v. 
Whitney  v.  Dresser,  §  844,  p.  485. 
Whitney    v.    Wenman,    §    18,    p.    35;    § 

789,  p.    463;    §   790,   p.   463;    §    1690,   p. 

1041;  §  1690,  p.  1042;  §  1796,  p.  109(1; 

§  1797,  p.  1096;  §  1800,  p.  1099;  § 

1801,  p.  1099;  §  1802,  p.  1100;  §  1807, 

p.  1105;  §  1811,  p.  1110;  §  1822,  p. 

1119;  §  1885,  p.  1177;  §  1916,  "  "'-•"^ 
Whittier,  Packer  v. 
Wick,  Durham  v. 
Wielarski,  In  re,  §  303,  p.  217. 
Wiesen  Bros.,  In  re,  §  1555,  p 

1816,  p.  1113;  §.'1825,  p.  1121; 

p.  1133;  §  2641,  p.  1573. 

''iesen,  McNulty  v. 

iessner.    In    re,    §    2031: 


p.   1194. 


930;    § 
§   1839, 


Wiesen,  McNulty  v. 

Wiessner,    In    re,    §    2035,    p.    1262. 

Wigmore,   In   re,   §   635,   p.   377;   §   636, 

p.  377;  §  636,  p.  378;   §   705,  p.  424;  § 

710,  p.  427. 
Wilbur   V.    Watson,    §    1603,    p.    974;    § 

1614,  p.  981. 
Wilcombe.   Gomila  v. 
Wilcox,  Atkins  v. 
Wilcox,  In  re,  §  1547,  p.  924;  §  1552,  p. 

928;   §  11555,  p.  930;  §  1564,  p.  940;   § 

1839,  p.  1133;  §  2238,  p.  1369;  §  2238, 

p.  1370;  §  2255,  p.  1375;  §  2256,  p. 

1376;  §  2257,  p.  1377;  §  2643,  p. 

1574. 
Wilcox  &  Wright,  In  re,  §  638,  p.  379. 
Wilder,  Bemis  v. 
Wilder,  In  re,  §  621,  p.  367;  §  765 

454. 
Wilder  v.   Keeler,  §  756,  p.  450. 


Wilder  r.  Watts,  §  123,  p.  Ill;  §  261,  p. 
196;  §  264,  p.  197;  §  266,  p.  197;  §  271, 
p.  201;  §  275,  p.  202;  §  298,  p.'  215; 
§  328,  p.  225;  §  1150,  p.  679;  §  1370, 


1150,  p.  679;  §  1370, 
p.  799;  §  1372,  p.  801. 


§ 

P 

Wild 


p.  <yy;  s  i-^t'^,   P-  ^^i- 

'ilde's  Sons,  In  re,  §  552,  p.  335;  § 

552,  p.  337;  §  1196,  p.  696;  §  1196,  p. 

697;  §  1554,  p.  929;  §  1571,  p.  943;  § 

2629,  p.  1569;  §  2862,  p.  1673;  §  3001, 

p.  1738. 
Wilhelmy,  Knost  v. 
Wilka,  In  re,  §  1706,  p.  1054;  §  1885,  p. 

1178;  §  18S5,  p.  1180;  §  1888,  p.  1181; 

§  1889,  p.  1182;  §  ,1889,  p.  1183;  § 

1891,  p.  1183;  §  1931,  p.  1207;  §  1967, 

p.  1225;  §  1975,  p.  1228;  §  1978,  p. 

1228;  §  1979,  p.  1228. 
Wilkes,  In  re,  §  527,  p.  329;  §  1035,  p. 

587;  §  1101,  p.  627;  §  1901,  p.  1188;  § 

1918,  p.  1195. 
Wilkesbarre  Furniture  Mfg.  Co.,  In 

re,  §  523,  p.  326;  §  1772,  p.  1077;  § 

1883,  p.   1170;   §  1883,  p.   1171;   §  1883, 

p.   1172;   §   1884,  p.   1176. 
Wilkins  v.   Davis,   §  2796,   p.   1639. 
Wilkinson   v.    Shoe    Co.,    §   24,   p.    39;   § 

354,  p.  237. 


Willetts  V.  Catherson,  §  2716,  p. 


1606. 


Will 


/illiams  Bros.  v.  Savage,  §  2953,  p. 
1724;  §  2962,  p.  1726;  §  2964,  p.  1727; 
§  2972,  p.  1730;  §  2975,  p.  1731;  § 
2979,  p.  1732;  §  2978,  p.  1732;  §  2981, 
p.  1733;  §  2982,  p.  1733;  §  2983,  p. 
1733. 

Williams,  Gazley  v. 

Williams,  In  re,  §  31,  p.  52;  §  33,  p.  5S; 
§  34,  p.  54;  §  207,  p.  170;  §  221,  p. 
175;  §  336,  p.  231;  §  348,  p.  235;  § 
352.  p.  236;  §  352,  p.  237;  §  370,  p. 
245;  §  418,  p.  269;  §  1147,  p.  677;  § 
1222,  p.  724;  §  1547,  p.  923;  §  1572,  p. 
943;  §  1570,  p.  943;  §  1705,  p.  1051;  § 
1705,  p.  1052;  §  1705,  p.  1053;  §  1707, 
p.  1054;  §  1709,  p.  1055;  §  1912,  p. 
1192;  §  2861,  p.  1671. 

Williamson,  In  re,  S  1047,  p.  599:  S 


iia-i,  8  <;aDi,  p.  it)Yi. 
Villiamson,  In  re,  §  1047,  p. 
1098.  p.  623. 


599;    § 


Wil 


'yo.  p.  \3-z6. 
mington    Hosiery   Co.,   In   re.    §   21, 
37:    8    103.    n.    103:    8    107     n     IO.t- 


P- 


p.  37;  §  103,  p.  103;  §  107.  p.  105; 
§  108,  p.  106;  §  109,  p.  106;  §  112,  p. 
107;  §  150,  p.  131;  §  165,  p.  140;  § 
166,  p.  140. 


TABLE  OF  CASES. 


2039 


Wilson  Bros.  v.  Nelson,  §  135,  p.  118; 
§  136,  p.  119;  §.  140,  p.  123;  §  140, 
123;   §   277,   p.   202;   §   1282,   p.   757; 


.»,     §.    J.*U,     p.     J.ii.i,     5j     ±-±\J,     p. 

j-iio;    8   an,   p.   202;    §    1282,    p.   757;    § 

1336,  p.  783;  §  1370,  p.  799. 
iVilson     V.    City   Bank,    Introd.    (n),    p. 
.15;    §    142,    p.    125;    §    1337,    p.    783; 

-I  OOQ         ...        no  A 


Wil 


,  -     ,    „    -      ,    .  .    §    1337,    p.    783;    § 

1338,   p.   784. 
Wilson,  Durack  v. 
Wilson,   Eppstein  v. 
Wilson,  Ingram  " 


on,  Ingram  v. 

on.  In  re,  §  383,  p.  252;  §  897,  p. 
513;  §  1022,  p.  570;  §  1046,  p.  594;  § 
1047,  p.  595;  §  1047,  p.  598;  §  1048,  p. 
599;  §  1121,  p.  640;  §  1306,  p.  766;  § 
1819.  o.  1115:  S  1845.  o.  1142:  §  1850, 


599;  §  1121,  p.  640;  ^  1306,  p.  766;  § 
1819,  p.  1115;  §  1845,  p.  1142;  §  1850, 
p.  1147;  §  1856,  p.  1154;  §  2283,  p. 
1396. 
Wilson  V.   Parr,  §  450, 

SnO-    8    1-t4fi     n     9.r,^- 


JWson  V.  Parr,  §  450,  p.  296;  §  1439,  p. 
850;  §  1446,  p.  855;  §  1472,  p.  874;  § 
^1590,  p.  963;  §  1603,  p.  973;  §  1605,  p. 
'975;  §  1616,  p.  983;  §  1616,  p.  984;  § 
1620,  p.  985. 


Wilson   V.   Penna.   Trust   C 
9,    p.    401;    §    ( 
4;    §    665,    p.    ' 
!.    p.    553;   §    1 
^^^^,   ^.   .262;  §   2204,   p 

Wilson,   Scott,   Walter  v. 

Wilson,    Trust    Co.    &    \\ 


o.,   §    655,   p. 


iisoii    V.    jreiiiia.     iiusL     ,    „     ,    ^. 

399;    §    659,    p.    401;    §    659,    p.    402;    § 
665,    p.    404;    §    665,    p.    405;    §   989,    p. 
552;  §    992.    p.    553;   §    1160,    p.    683;   § 
2035,   p.   1262;  §   2204,   p.   1356 
Ailson.   Scott.   Walter   v. 


•oa,  p.  -tut,  vj  000,  p.  405;  §  989,  p. 
52;  §  992.  p.  553;  §  ii«n  r,  rs^-  S 
n^-'^    p.   1262;  §  2204, 

I,   Scott,   Walter  v. 

1,    Trust    Co.    &   Warehouse    Co. 


Winfield  Mfg.  Co.,  In  re,  §  656,  p.  400; 

§  659,  p.  401;   §  665,  p.  404;   §  665,  p. 

405;  §  2035,  p.  1262. 
Winfield  Nat'l   Bk.,  Torrence  v. 
Wing   Yick   Co.,    In   re,  §    60,   p.   67;   § 

65,    p.    72;    §    171     "     ■""' '    ^    ""-^     " 


65,  p.  72;  §  171,  p.  144;  §  233,  p. 
182;  §  276,  p.  202;  §  312,  p.  221;  § 
2231,  p.   1366. 


p.    221;    § 
Z-i6\,   p.    liibO. 
Winkels,  In  re,  §  798,  p.  466;  §  798,  p 
467 


467. 
Winkens,  In  re,  §  59,  p.  67;  §  2794,  p. 

1634. 
Winship    Co.,    J.    C,    In    re,    § 

253;    §    397,    p.    258;    §    1031, 

§  1033, 


iiisiiip  \^u.,  J.  \^.,  J.11  re,  §  385,  p. 
253;  §  397,  p.  258;  §  1031,  p.  578; 
§  1033,  p.  585;  §  1070,  p.  610;  §  1582, 
p.    949:    §    1797,    p.    1093;    §    1873,    p. 


p.    949:    §    1797,    p.    1093;    §    1873,    p. 

1163;  §  2398,  p.  1450. 
Winslow,    Mitchell   v. 
Winsor  v.  McClellan,   §  "1144,  p.  674;   § 

1208,    p.    705. 
Winston,  In  re,  §  219,  p.  175;  §  225,  p. 

178;  §  279,  p.  203;  §  333,  p.  227. 


Wintej-s,  In  re,  §  67,  p.  73;  §  68,  p.  73; 

§  1798,  p.  1098. 
Wise,  In  re,  §  233,  p.  182. 
Wiseman,    In    re,    §    2242,    p.    1371;    § 

2255,  p.  1375. 
Wiseman  &  Wallace,  §  648,  p.  389. 
Wissler  Mfg.  Co.,  Mott  v. 
Wissler  Min.   Co.,   Mott  v. 
Wiswall  V.  Campbell,  §  17,  p.  34;  §  23, 

p.  38;   §  2867,  p.   1683. 
Witthaus     V.     Zimmerman,     §     653,     p. 

396;  §  662,  p.  403;  §  2730,  p.  1610. 
Wolcott,  In  re,  §  1047,  p.  599. 
Wolf  &  Bros.  Dry  Goods  Co.,  Marshal 

Field  &  Co.  V. 
Wolf,    In    re,   §    306,   p.    219;    §    1201,   p. 

698;   §  11314,  p.   773;   §   1326,   p.   777;   § 

1500,  p.  896;  §  1500,  p.  897;  §  1504,  p. 

899;  §  2204,  p.  1357. 
Wolf  &  Levy,   In  re,  §   1283.  p.  758. 
Wolf  V.   Levy,  §   1421,  p.   843. 
Wolf  V.  Stix,  §  1511,  p.  902. 
Wolfensohn,    In   re.    §   2541,    p.    1530;    § 

2603,  p.    1555;   §   2627,   p.   1567;   §   2629, 

p.   1568. 
Wolfif,  In  re.  §  2425,  p.   1465;  §  2426,  p. 

1465;  §  2426,  p.   1466;  §  2434,  p.  1470; 

§   2436,   p.    1471. 
Wolke,  In  re,  §  2460,  p.  1488. 
Wolkowick,  Mason  v. 
Wollerstein  v.  Ervin,  §  794,  p.  464. 
Wollock,  In  re,  §  2691,  p.  1597;  §  2697, 

p.  1599;  §  2748,  p.  1617. 
Wolpert,  In  re,  §  2659,  p.  1578;  §  2661, 

p.   1579. 
Wood  V.  Carr,  §  1438,  p.  850;  §  1465,  p. 

871;  §  2732,  p.  1612. 
Wood,    In    re,    §    860,   p.   493;    §   972,    p. 

544;   §    1022,  p.   570;   §   1041,   p.   593;   § 

1042,  p.  593;  §  1046,  p.  594;  §  1228,  p. 

728;  §  1228,  p.  730;  §  2137,  p.  1318; 

§  2490,  p.  1504;  §  2521,  p.  1520;  § 

2538,  p.  1527;  §  2861,  p.  1672. 
Wood  &  Malone,  In  re,  §  1883,  p.  1169; 

§  1884,  p.  1173. 
Wood  V.    U.  S.  Fidelity  &  Guaranty 

Co.,  §  1370,  p.  800;  §  1371,  p.  800; 

§  1372,  p.  801;  §  1373,  p.  802. 
Woodard,  In  re,  §  972,  p.  545;  §  1022,  p. 

570;  §  1042,  p.  593;  §  1089,  p.  §16; 

§  2011,  p.  1248;  §  2045,  p.  1267;  § 


2040 


table;  of  cases. 


2048,     p.     1271;     §     2052,     p.     1275;     § 

2085,  p.  1289. 
Woodbury,   In  re,  §   1653,  p.   1024. 
Wooden,    Treat    v. 
Woodend,  In  re,  §  2369,  p.  1435;  §  2384, 

p.  1441;  §  2386,  p.  1442. 
Woodford  &  Chamberlain,  In  re,  §  203, 

p.  167. 
Woodford,  Crim  v. 
Woodford    Gaj-lord,    In    re,    §    1557,    p. 

933. 
Woodrufif  V.   Cheeves,  §  1022,  p.   570;   § 

1032,  p.  580;  §  1034,  p.  585;  §  (1104,  p. 

628;   §  1104,  p.  631. 
Woods,   In   re,   §  427,  p.   275;   §   970,   p. 

543;  §  1172,  p.  688. 
Woods     V.    Little,    §    2491,    p.    1504;    § 

2522,  p.   1522;  §  2626,  p.   1566;   §  3009, 

p.  1741. 
Woodside  Coal  Co.,  In  re,  §  93,  p.  87. 
Woodward,  In  re,  §  127,  p.  113;  §  186, 

p.  153;  §  187,  p.  154;  §  1024,  p.  572;  § 

1041,   p.   592. 
Woodward,  Richardson  v. 
Woolford  V.  Steel   Co.,  §  221,  p.  175;  § 

224,   p.    178;    §   242,   p.    186;    §   261,   p. 

195;    §    269,    p.    199;    §    271,   p.    200;    § 

305,  p.   218;  §  333,  p.  227. 
Woolslarr,   Sharp  v. 
Wooten,   In  re,  §  556,  p.  338;   §  784,  p. 

462;    §    785,    p.    462;    §    787,    p.    462;    § 

787,    p.    463;    §    799,    p.    467;    §    800,    p. 

467;    §    831,    p.    481;    §    831,    p.    482;    § 

844,    p.    484;    §    844,    p.    485;    §    851,    p. 

490;   §  854,  p.  490;  §   1193,  p.  696. 
Wootten,  Odell  v. 
Worcester   Co.,   In   re,   §   203,   p.  t'l66;   § 

431,    p.    276;    §    602,    p.    358;    §    605,    p. 

360;    §    607,    p.    361;    §    608,    p.    361;    § 

858,  p.  491;  §  1631,  p.  1003;  §  2135,  p. 

1317;  §  2135,  p.  1318;  §  2139,  p.  1318; 

§    2189,    p.    1346;    §    2194,    p.    1347;    § 

2197,  p.   1350;  §  2851,  p.  1663;  §  2887, 

p.    1696;    §    2903,    p.    1703;    §    2916,    p. 

1709;  §  2918,  p.  1709;  §-2990,  p.  1735; 

§   2993,   p.    1736;    §    2997,   p.    1737. 
Wordell,  Morgan  v. 
Warden,  Columbus  El.  Co.  v. 
Worland,  In  re,  §  1885,  p.  1178;  §  1965, 

p.  1223. 
Worrell,   In   re,  §   1565,   p.   940. 
Worsham,    In    re,    §    436,   p.    279. 


Vorth,  In  re,  §  780,  p.  461;  §  803,  p. 
469;  §  822,  p.  476;  §  823,  p.  477;  § 
1140,  p.  669;  §  1140,  p.  670;  §  1196,  p. 
696;  §  1196,  p.  697;  §  2008,  p.  1246;  § 
2018,  p.  1254;  §  2051,  p.  1275;  §  2071, 
p.  1285;   §  2271,  p.   1390. 

vVright,    Dutcher  v. 

Wright  V.    Gansevoort 
745;  §  a269,  p.  748;   ^ 

Wright,    Gorman  v. 

Wright  V.   Hart,  §  1140 


Wright,    Dutcher  v. 

"(^right   V.    Gansevoort    Bk.,    §    1265,    p. 
745;  §  a269,  p.  748;   §  1401,  p.   829. 


re,   §   565,   p.    3 
r,  p. 
636;  §  1115 


Wright,   In   .  ^,   o   ■■ 
471;    §    947,    p.    5,26 
1115,  p    ""'■-   ''   " 
644 


p.  671. 
43;  §  808,  p. 
§  994,  p.  555   " 
p.  63 


§ 


1115,  p.  636;  §  1115,  p.  637;  §  1131,  p. 
644;  §  1209,  p.  707;  §  1212,  p.  710;  § 
1222,  p.  724;  §  1222,  p.  725;  §  1230,  p. 
732;  §  1379,  p.  804;  §  1381,  p.  808;  § 
1500,  p.  896;  §1502,  p.  898;  §1628, 


p.  804;  §  1381,  p.  808;  § 

p.  896;  §1502,  p.  898;  §1628, 

§  2663, 


,  P 
p.  994;  §  1631,  p.  1003 


.  p.  826:  § 
1073;  §  1769; 


p.  »;?■*,  s  J.UOJ.,  jj 

1585;  §  2990,  p.  Yico. 
Wright  Lumber  Co.,  In  re,  §  130,  p. 

114;  §  132,  p.  115;  §  ^132,  p.  116;  § 

1314,  p.  770;  §  1326,  p.  777;  §  1412,  p. 

838. 
Wright,  Norrington  v. 
Wright    V.    Skinner,    §    1397, 

1739,  p.  1069;   §  1754,  p.  10 

p.   1076. 
Wrisley    Co.,    In    re,    §    89*1,    p.    509;    § 

897,   p.    513;    §   943,   p.   525;    §   2375,    p. 

1439;  §  2388,  p.  1444;  §  2400,  p.  1451; 

§  2404,  p.  1452;  §  2407,  p.  1453. 
Wulbern  v.  Drake,  §  48,  p.  61;  §  49,  p. 

61. 
Wunder,   In   re,   §   1041,   p.   593;   §   1048, 

p.    599;    §     1052,     p.     604;     §     1055,    p. 

604;    §   1055,   p.   605;   §   1057, 

1066     ^     fine-    S    1  o'rn     ts     «ir> 


604;    §   1055,   p.   605;   §   1057,   p.   605;    § 

1066,  p.  608;  §  1070,  p.  610. 
Wyly,    In   re,   §    794,   p.   464;    §   1311,   p. 

768. 
Wyoming  Vallej^  Ice  Co.,  In 

p.  1319;  §  2148,  p.  1326. 


aple  V.  Dahl-Millakan  Grocery  Co., 

1419,  p.  841;  §  1420,  p.  842. 

ates.  In  re,  §  41,  p.  57;  §  227,  p.  179; 

§  232,  p.  !181;  §  440,  p.  282;  §   635,  p. 

377;  §  705,  p.  424;  §  710,  p.  427. 
Yeatman  v.  Institution,  §  1144,  p.  674. 
Yerkes,    Sparhawk  v. 
''■  '     Co.,  In  re,  §  233,  p.  183. 

er,    In    re,    §    47.    p.    60;    §    2172,    p. 

1339;  §  2173,  p.  1339. 


Ya 
1 

Yat 
§ 


Yick 
Yod 


TABLE  OF  CASES. 


2041 


York   Mfg.    Co.    v.    Cassell;    §    1144,    p. 

673;   §   1209,  p.   707;   §   1210,   p.   709;   § 

1212,  p.  710;  §  12.14,  p.  715;  §  1214,  p. 

717;   §   1242,  p.   737;   §   1245,  p.   739;   § 

1379,  p.  807;  §  1896,  p.  1185;  §  2874,  p. 

1686;   §  2925,  p.   1713. 
Yost,    In   re,   §    1098,   p.   623;   §   2857,   p. 

1668. 
Young,  Carrol,  Geo.  &  Bros.  Co.  v. 
Young,    In    re,    §    24,    p.    39;    §    355,    p. 

238;  §  1796,  p.  1089;  §  2046,  p.  1267;  § 

2048,  p.*  1271;   §  2050,  p.  1274;  §  2053, 

p.    1276;    §    2054,    p.    1277;    §    2064,    p. 

1282;  §  2527,  p.  1524;  §  2529,  p.   1524; 

§  2542,  p.  1531;  §  2553,  p.  1539. 
Young,   Kuntz  v. 
Young,   Lott  V. 
Young  Nap,  Hoffschlarger  v. 
Young    V.    Upson,    §     1140,    p.    667;     § 

1140,  p.  671;   §  1150,  p.  679;   §  1314,  p. 

771;    §    1501,    p.    898. 
Young  V.   Young,   §  683,  p.   415;  §  2756, 

p.   1620. 
Yukon   Woolen   Co.,    In   re,    §    1207,   p. 

700;   §   1212,  p.  710;  §  1241,  p.  736;   § 

1247,  p.  739. 


Zachry,    Smith    v. 

Zartman    v.    Hines,    §    1189,    p.    695;    § 

11191,  p.  695;  §  1194,  p.  696. 
Zartman  v.   Nat'l  Bk.,  §   1140,  p.  669;*^^ 

1199,  p.  697;  §  1207,  p.  703;  §  1209,  p. 

708;   §    1236,  p.   734;   §.1237,  p.   735;   § 

1238,  p.  735;  §  1258,  p.  741;  §  1262,  p. 

744;  §  1265,  p.  745. 

Zehner,  Christ  v. 

Zeiber  v.  Hill,  §  1485,  p.  884;  §  1486,  p. 

885;    §    1487,   p.    885. 
Zeitner  Brew.   Co.,   In   re,  §   150,  p.  131. 
Zeperink  v.  Card,   §  2785,   p.   1630. 
:ier  &  Co.,  In  re,  §  1616,  p.  982;  §  1616, 

p.    983;    §    1621,    p.    986;     §    1621,    p. 

Ketchum,     §     2777,    p. 


987 
Zimmerman 

1627. 

Zimmerman,  Witthans  v. 
Zodikow,  Newland  v. 
Zollinger,    Fisher  v. 
Zugalla  V.  M 


.igalla  V.  Mercantile  Agency,  §  82,  p. 
8'1;  §  82,  p.  82;  §  83,  p.  82;  §  92,  p. 
87;   §  94,  p.  90;   §   157,  p.   134;   §   2893, 

^       1  fiQS 


p.  1698. 


GENERAL  INDEX. 


GENERAL  INDEX. 


ABANDONMENT 

Of  Lien,  State  law  controls,  §  1459,  p.  865. 

ABANDONMENT   OF  WORTHLESS    OR   BURDENSOME  ASSETS 

By  trustee,  §  932,  p.  524. 

Matter  of  discretion,  §  933,  p.  524. 

Declining  to  accept  burdensome  property,  §  932,  p.  524;  §  935,  p.  524. 

Manner  of  effecting  abandonment,  §  934,  p.  524. 

Failing,  after  notice,  to  accept,  is,  §  935,  p.  524. 

Once  abandoned  not  again  reclaimable,  §  936,  p.  524. 

ABATEMENT 

None  by  death  or  insanity  after  filing  of  petition,  §  98,  p.  94;  §  2420,  p.  1464; 

§  2421,  p.  1465;  §  2456,  p.  1487. 
None  by  dissolution  of  corporation  after  filing  of  petition,  §  101,  p.  99. 
None  of   replevin   suit,  where   State   court  first  obtains   possession,   §    1585, 

p.  958. 

ABBREVIATIONS 

In  Schedules  to  be  avoided,  §  486,  p.  311;  §  2764,  p.  1624. 
Whether  "due  scheduling,"  §  2764,  p.  1624. 

"ABSOLUTELY  NECESSARY  FOR  PRESERVATION  OF  ESTATE" 

Sole  ground  for  appointment  of  Receiver,  §  384,  p.  252. 

"ABSOLUTELY  OWING" 

Judgments  and  written  instruments  must  be,  to  be  provable,  §  670,  p.  406. 

ABSTRACT 

Chargeable  as  part  of  costs  on  selling  free  from  liens,  §  1996,  p.  1234. 

ABUSE  OF  DISCRETION 

Refusal    to    confirm    composition    not    to    be    reversed,    except    for,    §    2413, 

p.  1455. 
Refusal  to  permit  amendment,  reviewable  for,  §  2622,  p.  1565. 

ACCEPTANCE 

Of  new  Promise  requisite  to  revive  discharged  debt,  §  2723,  p.  1608. 

ACCOMMODATION  PAPER 

Allowability  of,  §  794,  p.  464. 

ACCORD  AND  SATISFACTION 

Trustee  may  plead,  §  1202,  p.  698. 

ACCOUNT 

Itemized,  to  be  attached  to  proof  of  claim,  §  604,  p.  360. 

Open,  must  be  owing  at  time  of  filing  bankruptcy  petition,  to  be  provable, 

§  672,  p.  407. 
Are  provable,  §  694,  p.  420. 

ACCOUNTING  FOR  ASSETS 

Bankrupt's  inability  to  make  reasonable,  §  2652,  p.  1576. 


2046  GENERAL  INDEX. 

ACCOUNTS  AND  REPORTS 

Approval  of,  §   2292,  p.  1399. 

Auditing  of,  §  2291,  p.  1398;  §  517,  p.  323;  §  518,  p.  323. 

Duty  of  Referee  to  audit  trustee's,  §  517,  p.  323;  §  2291,  p.  1398. 

Duty  of  trustee  to  file  reports,  §  917,  p.  521;  §  2285,  p.  1397;  §  2297,  p.  1401. 

Duty  of  referee  to  audit  receiver's,  §  518,  p.  323;  §  2291,  p.  1398. 

Duty   of  trustee   to   keep   accounts,   §   916,   p.    521;   §   2285,   p.    1397;    §   2297, 

p.  1401. 
Exceptions  to,  §  2293,  p.  1399. 
Form  of,  §  2286,  p.  1397. 
Notice  of,  §  2288,  p.  !1398. 

To  be  kept  separately,  of  firm  and  individual  estates,  §  2234,  p.   1367. 
Trustee's  accounts  and  papers   open  to  inspection,  §  915,   p.   520. 
Review^  of  Order  approving,  §  2287,  p.  1398. 

ACKNOWLEDGMENTS 

See,  "Oaths  and  Acknowledgments." 

ACTS  OF  BANKRUPTCY 

Adding  other  acts   by  amendment  to   petition,  §   263,  p.   196;   §   264,   p.    196; 
§  265,  p.  197;  §  266,  p.  197. 

Assignments,  Receiverships  and  Trusteeships,  as 

See  "Assignment  for  Benefit  of  Creditors — as  Act  of  Bankruptcy." 
See  "Receiverships  and  Trusteeships — as  Acts  of  Bankruptcy." 
Bankruptcy _  petition  itself  an  act,  §  73,  p.  77;  §  102,  p.   102;  §  164,  p.   139; 
§  192,  p.  1*59. 

Fifth    act    of    bankruptcy    committed    by    filing    voluntary    partnership 
petition,  §  73,  p.  77. 
Burden  of  proof  of  commission  of,  on  creditors,  §  172,  p.  146. 
Distinct  Acts  alleged  in  same  Petition,  §  249,  p.  189. 

Fifth  Class  of  Acts  of  Bankruptcy,  see  "Acts  of  Bankruptcy — 'Written  Ad- 
missions' as." 
First  Act,  see  "Acts  of  Bankruptcy — 'Fraudulent  Transfers,   Removals  and 

Concealments'  as." 
Fourth  Act,  see  "Acts  of  Bankruptcy — 'Assignments  and  Receiverships,'  as." 
"Frauds  on  the  Bankruptcy  Act,"  not  Acts  of  Bankruptcy,  §  106,  p.  105. 

Fraudulent  transfers,  removals  and  concealments,  as,  §  104,  p.  104. 

"Continuing    Concealments,"    bringing    commission    of    act    within    four 
months,  §  183,  p.  152. 

Historically  original  act,  §  105,  p.  104. 

Insolvency  of  debtor  not  requisite  in  chief,  §  116,  p.  109. 

Must  have  occurred  within  preceding  four  months,  §  115,  p.   109. 

Same  as  reprobated  at  Common  law,  or  by  Stat.  EHz.,  §   106,  p.  105. 

Solvency  a  valid  defense,  §  116,  p.  109. 

Meaning  of  Removal,  §  107,  p.  105. 

Meaning  of  "Permit,"  §  108,  p.  106. 

Actual  Intent  to  Defraud  Necessary,  §  109.,  p.  106. 
Imputed  Acts,  §  171,  p.  144. 

By  agents  of  corporations  and  partners,  §  171,  p.  144. 
Individual  partners  joined  with  partnership,  what  acts  of  bankruptcy  requi- 
site, §  64,  p.  70. 
None  requisite  in  partnership  petitions  filed  by  one  partner,  §  73,  p.  77. 


GENERAL,  INDEX,  2047 

ACTS  OF  BANKRUPTCY— Continued. 

None  requisite  in  Voluntary  Bankruptcy,  §  102,  p.  102;   §  192,  p.   159;   §  73, 

p.  77. 
Need  not  be  actually  committed  by  all  partners,  §  66,  p.  72. 
i\Iust  be  committed  in  same  capacity  as  act  charged,  §   171,  p.  144. 
Preferences  as,  §  117,  p.  109. 

Creditor's  Claim  must  be  pre-existing  debt,  §  123,  p.  111. 

Creditor's  Intent  immaterial,  §  130,  p.  114. 

Definition  as  act  of  bankruptcy,  §  117,  p.  109;  §  119,  p.  110. 

All  elements  of  preference  in  fact  must  exist,  §  120,  p.  110. 

Must  give  greater  percentage  over  others,  §  128,  p.  113. 

Depletion  of  Insolvent  Estate  implied,  §  121,  p.  111. 

Elements  of,  §  120,  p.  110. 

Fraudulent  or  fictitious  debt  not  implied,  §  122,  p.  111. 

"Four  months"  limit,  §  127,  p.  112. 

Insolvency,  §  126,  p.  112. 

Intent  to  prefer  requisite,  §  129,  p.  113. 

Must  give   recipient   "greater   percentage"   than   other   creditors,    §    128, 
p.  113. 

"Notorious  possession,"  §   127,  p.  112. 

"Transfer"  or  seizure  by  debtor's  acquiescence,  §  124,  p.   112. 

Transfer  to  apply  on  debt,  §  125,  p.  112. 
Preferences  by  legal  proceedings  not  vacated  in  five  days,  as,  §  133,  p.  117. 

No  fraudulent  intent  implied,  §  134,  p.  118. 

Intent  to  prefer  not  requisite,  §  135,  p.  118. 

Continuing  consent,  §  136,  p.  119. 

Debtor's  resistance  of  suit  without  release  of  property,  §  137,  p.  120. 

Preference  must  have  been  obtained  thereby,  §  138,  p.  120. 

Legal  proceedings  must  have  created  the  preference,  §  139,  p.  122. 

Date  of  levy  determines  whether  within  four  months,  §  184,  p.  152. 

Vacating  ineffectual  unless  accomplished  at  least  five  da5^s  before  sale, 
§  140,  p.  122. 

"At  least  five  days  before  a  sale,"  §  141,  p.  123. 

How  vacating  accomplished  and  how  not,  §  142,  p.  124. 

The  lien  must  have  been  obtained  within  four  months,  §  143,  p.  125. 

Mere  enforcement  of  lien  obtained  before,  insufficient,  §   143,  p.  125. 
-  Must  have  been  obtained  after  passage  of  Bankruptcy  Act,  §  143,  p.  125. 
Producing  books  and  appearing  for  examination  at  trial,  §   154,  p.   133;   § 
179,  p.   150. 

Destruction  or  loss  of  adequate  books  no  excuse,  §  180,  p.  150. 

Failure  to  keep  adequate  books  no  excuse,  §  180,  p.  150. 

Whether   requirement  of,   applies   in   cases   of   receiverships   as    acts   of 
bankruptcy,  §  ISI,  p.  151. 
Requisite  in  involuntary  bankruptcy,  §  103,  p.  103. 
Second  act,  see  "Acts  of  Bankruptcy — 'Preferences'  as." 
Third  act,  see  "Acts  of  Bankruptcy — -'Preferences  by  Legal  Proceedings  Not 

Vacated  in  Five  Days,'  as." 
Voluntary  petition  itself  act  of  bankruptcy,  §  73, 'p.  77;  §  102,  p.   102;  §  164, 

p.  139;  §  192,  p.   159. 
What    were,    in    First    English    Bankruptcy    Act,    34    Henry    VIIT,    Introd. 

(g),  p.  5;  §  105,  p.  104. 
Written  Admissions  of  Inability  to  Pay  Debts,  etc.,  as,  §  161,  p.  138. 

Are  acts  of  bankruptcy,  §  161,  p.  138. 


2048  GEXER-\L  INDEX. 

ACTS  OF  BANKRUPTCY— Continued. 

Admissions  by  board  of  directors  of  corporations,  §  167,  p.  140. 

Admissions  to  be  unqualified,  §  165,  p.  139. 

Assent  of  stockholders,  whether  requisite,  §  167,  p.  141. 

Mere  admission  of  insolvency  insufficient,  §  166,  p.  140. 

Not  contrary  to  prohibition  against  voluntary  bankruptcy  of  corpora- 
tion, §  168,  p.  142;  §  44,  p.  58. 

No  fraud  implied,  §  162,  p.  138. 

Insolvency  not  requisite  in  proof  of,  §  170,  p.  143. 

By  partners,  §  169,  p.  143. 

Purpose  of  Act,  §  163,  p.  139. 

Solvenc}^  not  competent  as  defense,  §  170,  p.  143. 

Voluntary  petition  itself,  a  commission  of  the  Act,  §  73,  p.  77;  §  102,  p. 
102;  §  164,  p.  139;  §  192,  p.  159. 

Voluntary  petition  itself,  a  written  admission  of  inability  to  pay  debts 
and  Willingness,  etc.,  §  164,  p.  139;.  §  102,  p.  102;  §  73,  p.  77;  §  192, 
p.  159. 

"ACTS,"  "CONDUCT"  AND  "PROPERTY" 

Broad  scope  of  general  examination  as  to,  §  1547,  p.  922. 

ACTUAL  KNOWLEDGE 

As  curing  defective  scheduling,  §  2777,  p.  1627. 

ADJOURNMENT 

Of  meetings  of  creditors,  §  590,  p.  353. 

ADJUDICATION  OF  BANKRUPTCY 

After  adjudication,  no  preference,  §  1378,  p.  803. 
Appealable,  §  2892,  p.  1698;  §  2893,  p.  1698. 

Not,  when  jury  trial  had,  §  2894,  p.  1699. 
Collateral  attack  on,  §  450,  p.  296. 
Consent  to,  §  314,  p.  221. 
Contractual  relations  not   affected   by,   §   451,  p.   297;   §   641,   p.   382;   §   1118, 

p.  639. 
Date  of 

If  life  insurance  policy  has  no  actual  value  at,  will  not  pass  to  trustee, 
§  1012,  p.  562. 

Fixes  right   to  exemptions,  §   1025,  p.   575. 

Description  of  exempt  property  to  be  as  of,  §  1053,  p.  604. 

Determines  whether  requisite  number  have  joined  as  petitioning  cred- 
itors, §  201,  p.  165. 

Is  Date  of  cleavage  of  title,  §  1117,  p.  639. 
Default 

Referee  may  adjudge  bankrupt  on  default,  §  524,  p.  328. 

Jurisdiction  to  make,  §  424,  p.  273. 

By  referee  in  Judge's  absence  or  disabilitj',  §  425,  p.  273. 

A  judgment  on  merits  binding*  on  all,  §  426,  p.  274. 
Discharge   barred,  does  not  prevent,   §   2579,  p.   1548. 
Due  Process  of  Law,  §  12,  p.  28. 
Effect  of  on  rights  of  peurties 

Contractual  relations  not  affected  by,  unless  merged  in  provable  debt, 
§  451,  p.  297;  §  641,  p.  382;  §   1118,  p.  639. 

Establishes  status  of  debtor  as  bankrupt,  §  452,  p.  301. 


GENERAI,  INDlvX.  2049 

ADJUDICATION  OF  BANKRUPTCY— Continued. 

•    Res    adjudicata    on    question    of    insolvency,    §    1362,   p.    793;    §    1461,    p. 
867  n.;  §  1776,,  p.  1078. 
Establishes  status  of  debtor  as  bankrupt,  §  452,  p.  301. 
On  involuntary  petitipn,  "soon  as  may  be,"  §  423,  p.  273. 
In  name  of  ostensible  partner,  §  62,  p.  68. 
Notice  to  creditors  not  necessary,  §  19,  p.  36. 
On  pleadings,  §  428,  p.  275. 

Premature  adjudication  on  bankrupt's  consent,  §  427,  p.  274. 
Former  refusal  of  discharge  does  not  prevent,  §  2441,  p.  1477. 
Of  individual  partner  requisite,  to  avoid  preferences   or  liens  by   legal  pro- 
ceedings on  individual  partner's  property,  §  1461,  p.  867. 
Of  Partnership 

Only  actual  partnership  subject  to,  §  63,  p.  68. 
Partnership  by  "holding  out"  not  subject  to,  §  63,  p.  68. 
Of  partnership  in  firm  name,  §  61,  p.  67. 

Of  partnership  v\^here  non-joining  partner  comes  in  and  joins,  §  72,  p.  74. 
As  proof  of  insolvency,  §  1461,  p.  867  n.;  §  1362,  p.  793;  §  1776,  p.  1078. 
Property  acquired  after,  does  not  pass,  §  1130,  p.  643. 
Question  in  "bankruptcy  proceedings"  proper,  §  2865,  p.  1682. 
Record  of 

Existence    of   jurisdictional    facts    need    not    appear    on    face    of    record, 

§  30,  p.  51  n. 
But  if  lack  of  jurisdictional  facts  affirmatively  appears  on  face,  decree 
void,   §  30,  p.  51   n. 
Requisite  to  annul  liens  by  legal  proceedings,  §  1461,  p.  867.- 
Requisite  to  avoid  preference,  §  1393,  p.  821  n. 
Res  Judicata 

In  general,  §  444,  p.  283;  §  1776,  p.  1078;  §  1777,  p.  1078;  §  1362,  p.  793; 

§  1461,  p.  867  n. 
Not  binding  except  on  mere  status  of  debtor  as  bankrupt  unless  parties 

actually,  contest,  §  445,  p.  288. 
As  to  "reasonable  cause  for  belief,"  §  446,  p.  290;  §  1777,  p.  1078. 
Refusal  to  adjudge  bankrupt,  after  hearing  merits,  res  adjudicata  as  to 

all,  §  448,  p.  295. 
Second  petition  not  maintainable  after  refusal  to  adjudge  bankrupt  on 

merits,  §  448,  p.  295. 
As  to  insolvency,  §  1362,  p.  793;  §  1461,  p.  867n;  §  1776,  p.  1078. 
As  to  petitioning  creditors'  claims  when  presented  for  allowance,  §  447, 
p.  291. 
Rights   of   creditors  against   sureties  for  bankrupt,   etc.,   not   impaired   by, 
§  1510,  p.  902. 

See  "Sureties  and  Guarantors." 
No    summary   jurisdiction    to   compel    surrender   where    liens    by   legal    pro- 
ceedings annulled  until  adjudication,  §  1461,  p.  867;  §  1662,  p.  1030. 
Vacating  of 

"After  term,"  §  431,  p.  276. 

Any  "party  in  interest"  competent,  §  433,  p.  277. 

Application  to  judge,  not  referee,  §  430,  p.  276. 

Creditors  proper  parties,  §  435,  p.  278. 

Disturbing  of  vested  rights  may  bar  vacating,  §  443,  p.  283. 

Grounds  for — no  provable  debt  sufficient  ground,  §  440,  p.  282. 

2  Rem  B— 54 


2050  GENERAL  INDEX. 

ADJUDICATION  OF  BANKRUPTCY— Continued. 

Laches  bars  right,  §  436,  p.  278. 

Present  interest  requisite,  §  434,  p.   278. 

Record   of,   imports   jurisdiction,    and   need   not   recite   all   jurisdictional 

facts,   §   437,   p.   279. 
That  only  debis  not  dischargeable,  insuflicient,  §  441,  p.  282. 
Voluntary  bankrupt  may  move  to  vacate,  §  438,  p.  281. 
Voluntary   adjudication   vacated   where   involuntary   petition   pending,    § 

442,  p.  282. 
Who  maj--  oppose  vacating,  §  439,  p.  281. 
Who  may  move  to  vacate.  Court  sua  sponte,  §  432,  p.  277. 
None  on  voluntary  partnership  petition,  where  non-consenting  partner  not 
made  party,  §  68,  p.  73. 

On  Voluntary  Petition 

Creditor  may  not  oppose,  §  195,  p.  159. 

"Forthwith,"  §  195,  p.  159;  §  423,  p.  273. 
Whether   it  "ipso   facto"   passes  bankrupt's   property  into   custodia  legis,  § 
1808.  p.  1108. 

ADMINISTRATION 

Dispatch  in,  §  718,  p.  434. 

Xone  of  exempt  property,  see  "Exemptions,  Jurisdiction  over." 

ADMINISTRATION  OF  ESTATE 

After  adjudication,   distinguished  from  proceedings   for  adjudication,   §   495, 
p.  315. 

ADMINISTRATIVE  ORDERS 

Reviewable,  by  petition  to  review,  §  2932,  p.  1715. 

ADMINISTRATOR 

Of   deceased   partner,    in   possession   of   firm    assets,    "adverse   claimant,"    § 

1671,  p.  1032. 
Holding  bankrupt's  distributive  share  not  adverse  claimanf,  §  1670,  p.  1032. 
Possession  of,  where  bankrupt  owns  interest  in  estate,  not  disturbed,  §  1595, 

p.  964. 
Trustee  of  bankrupt  heir  may  contest  account  of,  §  1206,  p.  699  n. 

ADMISSIBILITY  OF  EVIDENCE 

Referee  to  rule  on,  §  552,  p.  335;  §  1554,  p.  928. 

Declarations  of  alleged  fraudulent  transferrer,  §  2657,  p.  1578. 

ADMISSIONS 

By  Agent,  not  binding  unless  within  scope  of  authority,  §  559,  p.  339. 
General   examination,   competent  as,   in   subsequent   litigation   against   same 

witness  as  party,  §  1555,  p.  930. 
Not  to  be  rejected,  because  of  witness  being  enormous  liar,  §  1850,  p.  1149. 
Of  alleged  fraudulent  transferrer,  §  2657,  p.  1578. 

ADVERSE  CLAIMANT 

Before  Amendment  of  1903  neither  summary  nor  plenary  jurisdiction  over 

adverse  claimants  existed  in  bankruptcy  court,  §  1653,  p.  1023. 
Entitled  to  inspection  of  trustee's  accounts  and  papers,  §  915,  p.  520. 
Entitled  to  plenary  action,  §  1796,  p.  1089. 


GENERAL  INDEX.  2051 

ADVERSE  CLAIMANT— Continued. 

Injunctions  on,  issuable  in  bankruptcy  proceeding,  §   1654,  p.   1028;   §   1905, 

p.  1190. 
No   judgment   by   trustee   for    excess   of   offset   against    creditor    presenting 

claim  in  bankruptcy  proceedings,  §  1188,  p.  694. 
No  judgment  in  bankruptcy  proceedings  against  holder  of  claim  for  excess 

of  security,  §  764,  p.  454. 

Jurisdiction  of  Bankruptcy  Court  over,  by  consent 

May  be  conferred  on  bankruptcy  court,  §  1696,  p.  1045. 

]\Iay  not  be  conferred  on  U.  S.  Circuit  Court,  §  1696,  p.  1046  n. 

Garnishee    on    own    motion    paying    exempt    wages    into    court,    §    1696, 

p.  1046  n. 
May  be  conferred  over  debtor  owing  money,  §  1697,  p.  1047. 
What  constitutes  "consent,"  §  1698,  p.  1047. 
May  be  conferred  only  in  plenary  actions,  unless   property   in   custodia 

legis,  §  1699,  p.  1049.     • 
None  where  no  custody  and  neither  litigant  party  to  bankruptcy  pro- 
ceedings, §  1700,  p.  1050. 
Trustee  may  not  object  if  adverse  claimant  consents,  §   1701,  p.   1050. 
Trustee  not  to  object  to  plenary  suit  in  bankruptcy  court  by  adverse 

claimant  in  possession,  §  1702,  p.  1051. 
After  "consent"  too  late  to  retract,  §  1704,  p.  1051. 

Not  conferred  as  to  property  adversely  held,  by  mere  proving  of  dif- 
ferent claim  in  bankruptcy,  §  1698,-  p.  1048. 
Jurisdiction  over,  §  1652,  p.  1019;  §  1796,  p.  1089;  §  1905,  p.  1190. 
Owner  is,  where  mechanics   and  subcontractors  have  liens  on  fund,  §   1165, 

p.   685. 
As  to  part  of  property  in  possession,  not  as  to  remainder,  whether  summary 

jurisdiction  exists,  §  1824,  p.  1120. 
Persons    in    possession    but    not    "adverse    claimants"    subject    to    summary 
jurisdiction,  §  1815,  p.  1113;  §  1822,  p.  1118. 

Plenary  suits  against 

\lay  be  brought  in  bankruptcy  court,  when,  §  1690,  p.  1041. 

When  not,  §  1692,  p.   1042. 

May  be  brought  in  State  court,  §  1684,  p.  1035. 

Distinction    between    proceedings    in    bankruptcy    and    "controversies" 

arising  out  of  bankruptcy,  §  1685,  p.  1036. 
Jurisdiction   of   U.    S.    Circuit    Court   in   bankruptcy   matters,    §    1686,   p. 

1037. 
Jurisdiction  of  State   Courts  in  bankruptcy  matters,  §   1687,   p.   1038. 
By  amendment  of  1903  jurisdiction  conferred  also  in  certain  cases  upon 

bankruptcy  courts,  §  1688,  p,  1039. 
Cases  under  §  70  (e)   included  though  not  expressly  mentioned  in  §  23 

(b),  §  1689,  p.  1040. 

Who  may  bring  Plenary  Suits 

Creditors  may,  before  trustee  appointed,  §   1712,  p.   1056. 

But  not  after  trustee  appointed,  §  1718,  p.  1060. 

But  may,  when  permitted  to  use  trustee's  name,  §  1719,  p.  1061. 
In  possession  may  be  restrained,  §  365,  p.  243;  §  1654,  p.  1028;  §  1905,  p.  1190. 
Property  claimed  adversely  not  to  be  seized,  §  355,  p.  237. 
To  property  in   hands   of  bankrupt   or   agent,   summary  jurisdiction   not   di- 
vested,  §   1816,   p.    11^3. 


2052  GENERAI.  INDEX. 

ADVERSE  CLAIMANT— Continued. 

Receiver  maj'  not  seize  property  held  adversely,  §  391,  p.  256. 
Referee  may  not  order  surrender  of  property  held  by,  §  540,  p.  332. 
Referee  may  order  surrender  of  property  not  held  adversely,  §  540,  p.   332. 
Restrained   from   interfering   with    custody   of   bankruptcy   court,    §    1906,   p. 

1190. 
Not  subject  to  summary  jurisdiction,  §  1796,  p.  1089. 
Third  party  not  to  be  compelled  to  accept  paid-up  policy  nor  to  apply  for 

cash  surrender  value,  §  1010,  p.  562. 

Who  is  "Adverse  Claimant" 

Alleged  but  not  real  partner  in  involuntary  partnership  petition,  whether 

"adverse   claimant,"   subject  to   summary   seizure  of   property,   §   1669, 

p.  1032. 
Executor  holding  legacy  to  bankrupt,  not,  §   1670,  p.  1032. 
But  administrator  of  deceased  partner  in  possession  of  firm  assets  is,  § 

1671,  p.  1032. 
Trustees  of  spendthrift  trusts,  §  1672,  p.  1032. 
Mere  bailee  in  possession,  not,  §  1673,  p.  1033;  §  1826,  p.  1121. 
Stock  exchange   not  contesting  sale   of  bankrupt's   seat,   not,   §   1674,   p. 

1033. 
Mortgagees  in  actual  possession,  §  1675,  p.  1033. 
Alleged  fraudulent  transferee  in  possession,  §  1676,  p.  1034. 
Alleged  preferential  transferee  in  possession,  §  1677,  p.  1034. 
Assignee  of  bankrupt's  wages,  §  1678,  p.  1034. 

Lienholder  and  secured  creditor  as,  §  1679,  p.  1034;  §  1825,  p.  1121. 
Debtors  of  bankrupt  "adverse  claimants,"  not  to  be  proceeded  againsi 

summarily,  §  1680,  p.  1034. 
When  bank  owing  "deposit"  is,  §  1681,  p.  1035;  §  1822,  p.  1119.  • 

Owner  owing  on  building  contract,  subject  to  mechanic's  liens,  §  1682, 

p.  1035. 
Employers  holding  wages  of  bankrupt  tied  up  by  assignment,  §  1683,  p. 

1035. 
Court  officer,  in  possession,  adverse  claimant  until  adjudication,  §  1662, 

p.  1030;  §  1828,  p.  1124. 
Whether    garnishee    adverse    claimant    where    garnishment    within    four 

months,  §  1663,  p.  1030. 
Wife    "adverse    claimant,"    as    to    property    she    may    hold   adversely   to 

husband,  §  1664,  p.  1031. 
Assignee    or    receiver    not    "adverse    claimant"    as    to    proceeds    still    in 

hands,  §   1665,  p.  1031. 
Assignee  or  receiver  is,  as  to  proceeds  already  disbursed,  §  1666,  p.  1031. 
Agent  in  possession  applying  funds  on  salary,  §  1667,  p.  1032. 
Trustee  in  possession  under  mortgage  for  benefit  of  certain  creditors,  § 

1668,  p.  1032. 
Not  confined  to  absolute  owners,  §  1655,  p.  1029. 
Bankrupt    holding    jointly,    bankruptcy    court    has    jurisdiction,    §    1656, 

p.  1029. 
Obtaining  voluntary  possession  from  bankruptcy  officer  not   subject  to 

summary  jurisdiction,  §  1657,  p.  1029. 
Himself  becoming  bankrupt  gives  jurisdiction,   §   1658,  p.    1029. 
Attaching    creditor    receiving    proceeds,    within    four    months,    adverse 

claimant,  §  1659,  p.  1029. 


GENERAL  INDEX.  2053 

ADVERSE  CLAIMANT— Continued. 

Receiving  proceeds  after  bankruptcy,  not  "adverse  claimant,"  §  1660, 
p.  1029. 

Proceeds  still  in  officer's  hands;  neither  creditor  nor  officer  adverse 
claimant,  §  1661,  p.  1030. 

Custodians  and  court  officers  in  possession  under  nullified  legal  pro- 
ceedings, not,  §  1827,  p.  1122. 

ADVERSE  PARTY 

State  statutes  permitting  cross-examination  of,  without  making  him  one's 
own  witness,  whether  followed,  §  1549,  p.  926;  §  1759,  p.  1073. 

ADVERTISEMENT 

Of  sales 

Of  real  estate  at  public  auction,  for  four  weeks,  §  1939,  p.  1210. 
Of  real  estate  or  personal  propert}^  at  private  sale,  §  1940,  p.  1210.      • 
Taxable  as  part  of  costs,  §  1996,  p.  1234. 

ADVERTISING  COMPANIES 

See  "Involuntary  Bankruptcy." 

ADVICE 

Asking  advice  of  court  on  hypothetical  question,  §  2840,  p.  1660. 

ADVICE  OF  COUNSEL 

May  negative  criminal  or  fraudulent  intent,  §  2329,  p.  1413;  §  2536,  p.  1527. 

May  palliate  but  does  not  excuse  contempt,  §  2333,  p.  1417. 

May  negative  intentional  concealment,  §  2491,  p.  1504. 

Requisites  of,  in  general,  as  defense,  §  2491,  p.  1504  n. 

Insufficient  to  excuse,  where  legal  questions  are  matters  of  common  knowl- 
edge, §  2492,  p.  1505. 

Insufficient  where  facts  not  fully  laid  before  counsel,  §  2492,  p.  1505. 

Insufficient  where  inferences  drawn  from  advice,  are  unwarranted,  §  2492, 
p.  1505. 

AFFIDAVIT 

Hearings  on  petition  for  reclamation  not  to  be  on,  §  1876,  p.  1164. 
For  warrant  for  provisional  seizure  of  property,  §  336,  p.  231;  §  339,  p.  232. 
Cannot  be  waived  by  bankrupt,  §  342,  p.  233. 

To  be  specific  as  to  facts  constituting  act  of  bankruptcy  and  neglect  of 
property,  §  340,  p.  232. 

AFTER-ACQUIRED  PROPERTY 

Contracts   for   liens   on,  when   discharged,   §   2676,   p.   1591;   §   2677,   p.   1591; 

§  2678,  p.  1591. 
Debts  not  discharged  collectible  out  of  bankrupt's,  §  2669,  p.  1589. 
Mortgages  on,  §  1264,  p.  745;  §  1384,  p.   812;  §   1509,  p.  902. 
Taking  of  Possession  of 

Curing  lack  of  record,  §  1238,  p.  735;  §  1384,  p.  812. 

Whether  lien  begins  at  date  of,  or  reverts,  determined  by  State  law, 
§   1237,  p.  735. 

Under  chattel  mortgage,  §  1373,  p.  802  n. 

Within  four  months,  §  1371,  p.  800;  §  1384,  p.  812. 


2054  GENERAL  INDEX. 

AGENCIES 

Actual,  but  voidable  sales,  disguised  as,  §  122S,  p.   726. 

AGENCY 

Contract  of  involving  personal   skill   and  confidence   does   not  pass   to  trus. 
tee,  §  994,  p.  555. 

AGENT 

Acts  of,  imputable  to  bar  discharge  when,  §  2484,  p.  1502;  §  2485,  p.  1502; 
§   2563,  p.   1542. 

Material  false   statement   in  writing  by,  whereby  property   obtained   on 
credit,  bars  principal's  discharge,  §  2563,  p.  1542. 
Admissions  of  as  to  insolvency  of  principal,  §  1360,  p.  793. 
Admissions  of  not  binding  unless  within  scope  of  authority,   §   559,   p.   339; 

§  857,  p.  491;  §  1360,  p.  793. 
■Assignee,  agent  of  bankrupt,  where  assignment  nullified,  §  1665,  p.  1031. 
Claim  of  for  commissions  for  taking  orders,  §  807,  p.  470. 
Conversion  by 

Not    in    "fiduciary"    capacity,    so    that    claim    for     excepted    from    dis- 
charge, §  2785,  p.  1629. 
Husband's    admissions    while    acting    as    "manager"    for    bankrupt    wife,    § 

559,   p.   339. 
In  possession,  applying  funds   on   salary,  is   "adverse   claimant,"   §   1667,   p. 

1032. 
Insolvent  debtor,   after  failure  beginning  new  business  as   agent,   §   2516,  p. 

1515. 
Knowledge  of,  imputable  to  principal,  §  2779,  p.   1627;   §   1412,  p.   838. 
Knowledge  of  not  imputable   to  principal,  when  agent  acting  for  own   in- 
terest, §   1413,  p.   838. 
Preference    received  by,  §  1391,  p.  820;  §  1392,  p.  820. 
"Reasonable  cause  for  belief"  of 

Imputable  to  principal,  §  1412,  p.  838. 

Xot  imputable  when  agent  acting  for   own  interest,  §   1413,  p.   838 
Verifying  involuntary  petition,  must  allege  capacity  and  authority,   §  279.  p. 
203. 

ALIENIATION  OF  AFFECTIONS 

Judgment   for,   wlien    not   discharged,   §    2754,   p.    1620. 
ALIMONY 

Arrest  of  bankrupt  for  contempt  for  failure  to  pay,  §  469,  p.  305  n. 
Judgments  for,  not  provable,  §  683,  p.  414. 
Provability  of  before  amendment  of  1903,  §  683,  p.  4]  5  n. 
Whether  discharged,  §   2754,  p.   ]62(). 

ALLEGATIONS  OF  INVOLUNTARY  PETITION 

Sec   ''Invdhinlary   I'etition." 

ALLEGATION  IN  MERE  WORDS  OF  STATUTE 

Insufficient,  §  255,  p.   191. 

When  sufficient  pleading,  §  2608,  p.  1558. 

"ALLOWABILITY" 

Distinguished   from   "provability,"   §   595,  p.   35();   §  6.^2,  p.  375;   §  745,  p.    U5. 


GENERAL  INDEX.        i  2055 

ALLOWABLE  CLAIMS 

"Allowability"'  distinguished  from  "provability,"  ^  632,  p.  S7o;  §  7i:>,  p. 
445. 

Only  "provable"   claims  "allowable,"  §   746,  p.   44o. 

But  all  "provable"  claims  not  necessarily  "allowable,"  §  747,  \.-.  445. 

Allowability   of   Secured   Claims,   see   "Secured    Claims,    Allowability   of." 

Allowability  of  claims  of  creditors  holding  voidable  prererence's,  see  "Pre- 
ferred Creditors,  Allowability  of  Claims  of;"  "Surrender  of  Preferences." 

Allowability  of  claims  where  creditor  holds  lien  by  legal  proceedings, 
see  "Surrender  of  Lien  by  Legal  Proceedings  before  Claim  Allowed,"  § 
779,  p.   461. 

"ALLOWANCE" 

Of  Appeal,  §  2960,  p.  1725. 

Condition  on  giving  bond,  §  2961,  p.  1726  n. 
And  "proof"'  different  terms,  §  595,  p.  350;  5  632,  p.  375;  §  7-15,  p.  445. 

ALLOWANCE  OF  CLAIMS 

To  be  "allowed"  on  Presentation  or  Receipt,  §  815,  p.  474. 

Appealability  of,  §  2892,  p.  1698;  §  2898,  p.   1701;   §  2899,  p.   1701;  §   2900,  p. 

1702;   §  2901,  p.   1702;   §   2902,   p.    1702;   §   2903,   p.   1703;   §   2904,   p.   1704;    § 

2905,  p.   1704;   §   2906,  p.   1704;   §  2907,  p.   1704;   §   2908,   p.   1705;   §   2909,   p. 

1705;   §   2910,  p.   1705;  §  2911,  p.   1705. 
Appealability  of,  see  "Appeal  and  Error — In  Circuit  Court  of  Appeals — In 

Bankruptcy  Proceedings  Proper." 
Court  on  own  motion  postponing,  §   816,   p.   475. 
Creditors  not  to  vote  whose  claims  not  allowed,  §  575,  p.  348. 
"Duly  proved,"  no  allowance  where  claim  not,  §   814,  p.  474. 

Of  Endorsers 

See  "Endorsers." 

See   "Sureties   and   Guarantors." 
After  expiration  of  year,  if  filed  within,  §  721,  p.  435. 
At  first  meeting,  §  593,  p.  354. 
Of    Fraudulent    Transferree,    where    constructively    fraudulent    transfer    set 

aside,  §  1734i4,  p.  1O6T. 
Jurisdiction  as  to,  §  811,  p.  473. 

Motion  or  pleading  not  requisite  to  procure,  §  815,  p.  474. 
Order  of,  appealability   of,   see   "Allowance   of   Claim — Appealability." 
For  other  participation  than  voting,   not   requisite,   §   580,   p.   349. 
Postponing,  §  864,  p.  496. 

Of  Preferred  Creditor 

See   "Preferred   Creditor — Allowability   of   Claim   of." 
See  "Surrender  of  Preference." 

Procedure  on  where  not  objected  to 

Allowed  on  "Presentation  or  Receipt,"  §   815,  p.  474. 

Court  on  own  motion  postponing,  §  816,  p.  475. 

Where  "duly  proved"  and  not  objected  to,  §  813,  p.  474. 

Where  not  "duly  proved,"  §   814,  p.   474. 
No  "provisional"  allowance  for  voting,  §  812,  p.  473;  §  865,  p.  496. 
Is  Question  arising  in  "Bankruptcy  proceedings  proper,"  §  2867,  p.  1683. 
Vacating  of,  after  expiration  of  current  term,  §  858,  p.  491. 


2056  GENERAI.  INDEX. 

ALLOWANCE  TO  WIDOW  AND  CHILDREN 

See  "Widow's  and  Children's  allowances." 

ALTERNATIVE 

Orders  in,  to  surrender  specific  propertj^  or  its  "value,"  §  1853,  p.  1152. 
Pleading  in,  improper,  §  2609,  p.  1561. 

AMENDMENT 

Of  Assignment  of  Errors,  on  appeal,  §  2961,  p.  1726. 
Of  Claim 

After  expiration  of  year,  §  622,  p.  367;  §  734,  p.  439. 

But   an   original   claim   must    exist,   filed  within  year,   §    618,   p.    366;    § 

735,  p.  440. 
Power   of,   not   to   be    distorted   to   let   in    dilatory    creditors    who   have 

withdrawn  proofs,  §  736,  p.  440. 
Nor    to    let    dilatory    creditors    filing    claims    against    firm,    file    claims 

against  separate  partners,  after  expiration  of  3'ear,  §  737,  p.  440. 
Permissible,  §  617,  p.  366. 

Changing  nature  of  claim  set  up  in  proof,  §  619,  p.   367. 
Imposing  conditions   on  proof  of   claim,   §   620,  p.   367. 
Amendment  of  proof  of  claim  may  be  refused,  §  621,  p.  367. 
Of  Claim  of  Exemptions 

Amendment  reverts  to  date  of  filing  original  claim,  §  1071,  p.  610. 
None    of   claims   of   exemptions,    after    obtaining   possession,    to    defeat 

lienholders  as  to  whom  property  not  exempt,  §  1031,  p.  578. 
Claim  may  be  inserted  or  corrected  by  amendment,  §   1066,  p.   608. 
Leave  or  order  to  amend  requisite,  §  1067,  p.  608. 

Required   by    Court   where    exemptions    claimed    improperly,    §    1068,    p. 
608. 
•  Leave  liberally  granted,  §  1069,  p.  609. 

Leave  refused  where  original  omission  was  intentional,  §  1070,  p.  609. 
Leave  refused  where  third  parties  would  be  injured,  §  1070,  p.  609. 
May  be  conditioned  on  payment  of  rent,  storage  and  other  charges  for 

care  of  exempt  property,  §  1093,  p.  618. 
May  be   conditioned   on   payment   of   expenses   to   put   parties   in    statu 
quo,  §  1093,  p.  618. 
Conditional  Amendment 

To  Proof  of  Claim,  §  620,  p.  367. 

To  Specifications  in  Opposition  to  Discharge,  §  2620,  p.  1564. 
To   Conform   pleadings   to   proof,   §   2617,  p.   1564. 
Of  Discharge  decree 

To  include  firm  debts,  where  already  duly  scheduled,  §  2801,  p.  1642. 
After  term  at  which  discharge  granted,  §  2802,  p.  1642. 
Of  Exemption  Laws 

Does  not  Affect  right  of  exemptions  in  wages  earned   before,   §   1041, 
p.  593  n. 
Of  Involuntary  Petition 
Allowed,  §  261,  p.  195. 

Must  be  "something  to  amend  by,"  §  262,  p.  196. 
Similar  acts  of  series  added  by,  §  263,  p.  196. 

Acts   occurring   within   four  months   of  application   to   amend   added,   § 
264,   p.    196. 


GENERAL  INDEX.  2057 

AMENDMENT— Continued. 

But  occurring  before  and  not  originally  referred  to,   not  to  be  added, 
§  265,  p.  197. 

Except   where   two   petitions    consolidated,   earlier   acts   in   one   may   be 
adopted  in  other,  §  266,  p.-  197. 

Individual  petitions  not  amendable  to  include  partnerships,  §  69,  p.  73. 

Amending  joint  involuntary  petition,   to   make   partnership,   §   69,   p.   74. 

Refusing   amendment   because    of   unwisdom   of  instituting   bankruptcy 
proceedings,  §  305,  p.  218. 

To  make  pleadings  conform  to  facts  proved,  §  267,  p.  198. 

Failure    to   show   requisite   number,    and    amount   and    nature    of    claims 
amendable,  §  268,  p.   198. 

Jurisdictional   averments    amendable,   §    269,   p.    199. 

Misnomer,   amendment  allowable,  §   270,  p.   200. 

Amendment   may   be    refused,    §    271,    p.    200. 

To  make  partnership  petition  out  of  individual  refused,  §  272,  p.  201. 

Relates  back  to  date  of  filing  original,  §  273,  p.  202. 

Application  to  amend,  Cause  of  error  to  be  stated  in,  §  274,  p_.  202. 

Time  to   answer   amended  petition,   §   275,   p.    202. 

By  adopting  earlier  act  from  other  petitions,  §  298,  p.  215. 
New  Ground  added  by,  §  2616,  p.   1564. 
Of  Objections  to  Claims 

Permissible,   §  834,  p.   482. 
Ordered  by  court,  §  2618,  p.   1564. 
Of  petition  for  revocation,  §  2823,  p.  1650. 
Of  Proofs   of  Claiin,   see  "Amendment — Of  Claim." 
Refused,  §  2621,  p.  1564. 
Of  Schedules 

After    discharge    too    late    to    amend    to    include    omitted    creditors,    § 
2782,   p.   1628. 

Allowed,  §  492,  p.  313. 

Omitted   creditors   added   by,   §   493,   p.    313. 

But  not  after  expiration  of  year  for  filing  claims,  §  494,  p.  313. 

Of  schedules  after   discovery  of   concealed  assets,  of  no  avail,   §  2520, 
p.   1518;  §  2543,  p.   1542. 
Must  be  "Something  to  amend  by,"  §  2614,  p.  1563. 
Of    specifications    in    opposition    to    discharge,    see    "Discharge — Opposition 

to — Specifications — Amendment  of." 
Of  Verification 

Permitted.   §   280,  p.  204;   §  2586,  p.   1551. 

AMENDMENT  OF  1903 

As  to  dischargeability  of  Alimony,  simply  declaratory  of  existing  law, 
§  2756,  p.  1620. 

Before,  judgments  for  any  kind  of  fraud  excepted,  §  2747,  p.  1617. 

Before,  fraud  claims  must  have  been  reduced  to  judgment,  else  barred, 
§  2748,  p.   1617  n. 

Before,  no  jurisdiction  existed  in  bankruptcy  court  over  adverse  claimants, 
§  1653,  p.  1023. 

Confers  plenary  Jurisdiction  on  Bankruptcy  Court  over  trustee's  action- 
against  adverse  claimant,  §  1688,  p.  1039.  See,  also,  "Plenary  Action  by 
Trustee  against  Adverse  Claimant." 

New  grounds  for  opposition  to  discharge  added  by,  see  "Discharge — Op- 
position to,   Grounds  of — Added  by  Amendment  of  1903." 


2058  GENERAL  INDEX. 

"AMOUNT  INVOLVED" 

In    dispute,   not    amount   of    entire    claim,    governs    appealability,    §    2S99,    p. 

1701. 
As  element  in  fixing  attorney's  fees,  §  2047,  p.  1268. 

Xot   entire  estate,  but  only   surplus   over  valid  liens,   §   2070,  p.   1284;   ^ 
2083,  p.  1289. 

"ANCILLARY  BANKRUPTCY  PROCEEDINGS" 

Not  maintainable,  §   1705,  p.   1051. 

But  bankruptcy  court  may  marshal  liens  and  sell  personal  property  in  ac- 
tual custody  though  in  another  state,  §  1706,  p.  1053. 

Propert}'  in  other  states  not  in  custody  to  be  protected  by  independent 
suits,  §  1707,  p.  1054. 

Before   adjudication,    bankruptcy    receiver   no   power    in   another    district,    § 

1708,  p.  1055. 

After  adjudication   trustee   may   institute   proceedings   in   another   district,   § 

1709,  p.   1055. 

No  ancillary  jurisdiction  in  bankruptcy  court  of  another  district  to  make 
summary  order,  §  1867,  p.  1162. 

No  ancillarjr  injunction  in  aid  of  bankruptcy  proceedings  in  another  dis- 
trict,   §    1912,   p.    1192. 

Annual  Subscription  to  Mercantile  Agency  Reports,  §  809,  p.  471. 

ANNUITY 

Bond  for,  annuitant  still  living,  §  651,  p.  390. 
When  will  pass,  §  972,  p.  545. 

ANSWER 

To  Involuntary  petition,  §  323,  p.  225. 
Form  of,  §  327,  p.  225. 
Denying  act  pleaded  but  showing  facts   sufficient  to  constitute   another 

act,    §    331,    p.    226. 
No  demurrer  to,  §  332,  p.  226. 
Time  to  answer  amended  petition,  §  328,  p.  225. 
Under  oath  requires  testimony  to  overcome,  §   1757,  p.   1073. 
Who  may,  §  326,  p.  225. 
To  Specifications  in  opposition  to  discharge 
Not  necessary,  §  2623,  p.  1565. 
But  may  be  filed,  §  2624,  p.  1565. 

ANSWER  DAY 

To  involuntary  petition,   §  315,  p.  221. 
May  be  extended,  §  316,  p.  221. 

ANTECEDENT  DEBT 

Transfer  must  have  been  to  apply  on,  else  no  preference,  §  1314,  p.  770. 
Petition  to  recover  preference  must  allege,  §  1766,  p.  1075. 

ANTICIPATORY  BREACH 

Bankruptcy   Operating   as,   §    674,   p.   410. 

APPEAL 

Bond  for,  released  by  bankrupt's  discharge,  if  liability  dependent  upon   ob- 
taining judgment,   §   1511,   p.   902. 


GENERAL  INDEX.  2059 

APPEAL— Continued. 

Distinction  between  and  writ   of  error,  §   2881,   p.   1690. 

Exemption  matters  not  appealable,  §  1109,  p.  634. 

Exemption    matters    ''Proceedings    in    Bankruptcy,"    not    "Controversies,"    § 

1109,  p.   634. 
Jurisdiction  superseded  when  appeal   perfected,  §   2979,  p.   1732. 

Perfecting  of 

See  "Appeal   and   Error — Time   for   Appeal." 
"Taken"   when   "allowance"    made,   and   bond   and   citation   filed,   §    2985,   p. 

1733. 
When  to  appeal  and  when  to  petition  for  review,  §  2880,  p.  1689;  §  2883,  p. 
1693;   §   2884,   p.   1694;   §   2885,  p.   1695;   §   2886,   p.   1695;   §   2887,  p.    1695;   § 
2888,   p.   1696. 

• 
APPEAL  AND  ERROR 

Appeals  to  Circuit  Court  of  Appeals 
In  bankruptcy  proceedings  proper 

Adjudications  or  refusals  to  adjudge  bankrupt,  §  2893,  p.  1698. 

No  appeal  if  jury  trial  had,  §  2894,  p.  1699. 
Composition,  confirming  or  refusing  to  confirm,  §  2896,  p.  1701. 
Costs    and    expenses    of    administration,    whether    "claim,"    §    2907, 

p.  1704. 
Intervening  creditors  petitions  not  "claims,"  §  2908,  p.  1705. 
Trustee's  petition  for  order  of  surrender  not  "claim,"  §  2909,  p.  1705. 
Rejection  or  allowance  of  set-off  appealable,  §  2910,  p.  1705.    • 
No  appeal  in  bankruptcy  proceedings   proper  except  in  three  cases 

of  25   (a)   mentioned,  §  2911,  p.   1705. 
Discharge,  judgments  granting  or  denying,  §  2895,  p.   1700. 
Discharge,  dismissals  of  for  want  of  prosecution,  §  2897,  p.  1701. 

Claims,  allowance  or  rejection  of,  §  2898,  p.  1701. 

Amount  in  dispute,  not  amount  of  entire  claim,  governs,  §  2899, 

p.  1701. 
Debt  must  have  been  owed  by  bankrupt,  mere  lien  on  property 

insufficient,  §  2900,  p.  1702. 
Where   lien   or   priority   incident   to    disputed   debt,   its   validity, 

priority,  etc..  Appealable,  §  2901,  p.  1702; 
Where  debt  undisputed  mere  fact  that  disputed  lien  or  priority 

incident  to  debt  insufficient,  §  2902,  p.  1702. 
Not  to  split  case  and  dismiss  portion  affecting  lien  or  priority, 

§  2903,  p.  1703. 
"Claim"  refers  only  to  monej^  demand,  §  2904,  p.  1704. 
"Claim"   refers   to   "Claims"   presented   for   proof   against   bank- 
rupt estate,  §  2905,  p.  1704. 
"Claim"  does  not  refer  to  "Claims"  for  exempt  property,  §  2906, 
p.  1704. 
When  to  be  taken,  §  2889,  p.  1697. 

Order  appealed  from  must  be  final  order,  §  2890,  p.  1697. 
Right  of  appeal  cannot  be  enlarged  nor  restricted  by  court,  §  2S9i, 

p.  1693. 
Such    appeals    permissible    onlj^    as    to    adjudication,    discharge    and 
allowance  of  claims,  §  2892,  p.  1693. 


2060  GENERAL  INDEX. 

APPEAL  AND  ERROR— Continued. 

In  "Controversies  arising  in  Bankruptcy  Proceedings" 

Jurisdiction,  §  2912,  p.  1706. 

Appeal    a    matter   of    right,    not    to    be    enlarged    nor    restricted   by 

Court,  §   2913,  p.  1708. 
Under  §  24  (a)  both  law  and  fact  reviewed,  §  2914,  p.  1708. 
Litigant  has  option,  in  proper  case,  either  to  appeal  or  to  petition 

for  revision,  §  2915,  p.  1708* 
May  treat  "appeal"  as  petition  for  revision,  §  2916,  p.  1709. 
Appeal  not  treated  as   petition  for  review,   where   questions   are   all 

of  fact,  §  2917,  p.  1709. 
Simultaneous  appeal  and  petition  for  review,  §  2918,  p.  1709. 
Single  Assignment  of  errors  sufficient  where  appeal  and  error  simul- 
taneously prosecuted,  §  2919,  p.  1710. 
Appeals  in  "Controversies"   only  allowable  in  cases  within  Act  of 

Congress  establishing  Circuit  Court  of  Appeal,  §  2920,  p.  1710. 
Decree  in  equity  not  reviewable  by  writ  of  error,   nor  judgment  at 

law  by  appeal,  §  2921,  p.  1711. 
Must  be  "Final"  order,  §  2922,  p.  1712. 
Validity,    priority,    etc.,    of    liens    appealable    as    "controversies,"    § 

2923,  p.  1712. 
Summary  order   on  third  party  to   surrender  assets,   appealable   as 

"Controversy,"  §  2924,  p.  1713. 
Summary  order  on  trustee  or  receiver  to  surrender  assets  to  third 

party,  §  2925,  p.  1713. 
Plenary  suits  in  U.  S.  District  Courts  by  adverse  claimants  in  pos- 
session to  enjoin  trustees,   appealable  as  "Controversies,"   §  2926, 
p.  1713. 
Plenary  suits  by  trustees  in  U.  S.  District  Court  to  recover  property 
preferentially  or  fraudulently  transferred,  §  2927,  p.  1714. 
"Bankruptcy  Proceedings"  proper 

Adjudication  of  bankruptcy,  or  its  refusal  is,  §  2865,  p.   1682. 
Allowance    or    rejection    of    claim,    in    marshaling    firm    and    individual 

estates  is  a  question  in,  §  2867,  p.  1683. 
Allowance  or  rejection   of  claim   to   share   in   dividends,    is   a   question 

in,  §  2867,  p.   1683. 
Assignee's   lien  for   reimbursement  of  expenses  and   compensation   not 

a   question  in,   §  2868,  p.   1683  n. 
Costs    and    expenses    of   administration,    allowance    or    disallowance    of, 

is  a  question  in,   §  2868,  p.  1683. 
Exemptions,   allowance   or   refusal   of  is   a   question   in,   §   2866,  p.   1682; 

§  2934,  p.   1715;   §   2930,   p.   1715. 
Intervening    petitions     claiming    property    in     custody    of    bankruptcy 

court,  or  liens  thereon,  are  not,  §  2875,  p.   1687. 
Marshaling  of  firm  and  individual  assets   and   debts,  whether   question 
in,  §  2879,  p.   1689. 

Orders  of  sale  and  incidental  questions,  are,  §  2876,  p.  1688. 

Unless    real    controversy    not    about    order    of    sale,    nor    claim,    but 
about  lien  or  title  itself,  §  2877,  p.  1689. 
Seizures  on  warrants  to  marshal,  are  questions  in,  §  2872,  p.  1685. 
Trustee's  petition  for  summary  surrender  of  property,  is  not  question 
in,  §  2873,  p.  1685. 


GENERA!,  INDEX.  20bl 

APPEAL  AND  ERROR— Continued. 

Trustee's  petition  to  marshal  liens,  is  not,  §  2878,  p.  1689. 

Trustee's   plenary    suits,   in   U.    S.    District    Court   to   recover   property, 

are  not,  §  2874,  p.  168G. 
Validity   and  priority   of  lien,   if   incident  to   allowance   or  rejection   of 
creditor's  claim,  may  be  a  question  in,  §  2869,  p.  1683. 

But  not,  if  sole  controversy  is  about  lien  or  priority,  §  2870,  p.  1684. 
Claim  controverted  must  be  creditor's  claim,  §  2871,  p.  1684. 
Widow's  and  children's  allowance  on  death  of  bankrupt  whether  ques- 
tions in,  §  2866,  p.   1682  n. 
In  Circuit  Court  of  Appeals 

Obedience  to  mandate   enforced  by  mandamus,  §  3012,  p.   1743. 
Clerical  Mistakes  disregarded,  §  3011,  p.  1742. 
Composition   matters   appealable,  *§   2410,   p.   14.54. 

Composition,  whether  appeal  is  only  method  of  review,  §  2411,  p.  1454. 
Contempt 

Order  of  District  Judge  on,  not  reversed  except  for  clear  error,  §  2344, 
p.  1419. 
"Controversies  Arising  in  Bankruptcy  Proceedings" 
What  are  and  what  are  not 

Adjudication  of  bankruptcy  or  its   refusal,  not,  §  2865,  p.   1682. 

Exemptions,  allowance  or  refusal  of,  not,  §  1109,  p.  634;  §  2866,  p.  1682. 

Widow's  and  children's  allowances,  whether,  §  2866,  p.  1682. 

Allowance  of  Claim,  not,  §  2867,  p.  1683. 

Costs   and   expenses   of  administration,   not,  §   2868,   p.   1683. 

Assignee's  lien  is,   §  2868,  p.  1683  n. 

Liens  or  priorities,  are,  §  2870,  p.  1684. 

Trustee's    petition    for    summary    surrender    of    property    is,    §    2873,    p. 

1685;  §  2924,  p.  1713. 
Trustee's  plenary  suits  in  U.  S.  District  Court  to  recover  property  are, 

§  2874,  p.   1686;   §   2927,  p.   1714. 
Intervening   petitions    claiming   property    are,    §    2875,    p.    1687;    §    2925, 

p.   1713. 
Intervening  petitions  claiming  liens  on  property,  §  2875,  p.  1687. 
Attorneys  fees,  allowance  of,  not,  §  2868,  p.   1683. 
Seizures  on  warrants  to  marshal  are  not,  §  2872,  p.  1685. 
Orders  of  sale,  and  incidental  questions  are  not,  §  2876,  p.  1688. 
Trustee's   petition  to   marshal   liens  is,   §   2878,   p.   1689;   §  2923,   p.   1712. 
Marshaling  of  firm  and  individual  assets  and  debts,  whether,  §  2879,  p. 
1689. 
When  optional  to  appeal  or  petition  for  review  in,  §  2884,  p.  1694. 
Discretion  in  approving  and  setting  aside  sale,  not  to  be  revised  except  for 

abuse,  §  1960,  p.  1221. 
Distinction  between  writ  of  error  and  appeal,  preserved,  §  2881,  p.  1690. 
Distinction  between  §  24   (b)  and  §§  24  (a)  and  25  (a),  preserved,  §  2882,  p. 
1691. 

Error  Proceedings  in  Circuit  Court   of  Appeals 
In    Bankruptcy   Proceedings   proper 

Allowance   to   widow   and   children    on    death    of   bankrupt    pending 

adjudication,  §  2939,  p.  1717. 
Attorneys'    fees    and   other    expenses    of    administration,    §    2933,    <>. 
1715. 


2062  GENERAL  INDEX. 

APPEAL  AND  ERROR— Continued. 

Exemption   matters,   §   2934,   p.    1715. 

Orders  on  nonbankrupt  partner  to  file   schedules   or  surrender  firm 

assets,   §   2935,  p.   1715. 
Distribution  between  firm  and  individual  creditors,   §  2936,  p.   1716. 
Orders  of  sale  and  controversies  incident  thereto,  reviewable  under 

§  24  (b),  §  2937,  p.  1716. 
Summary   orders   on   bankrupts   and   others    to    surrender   assets    or 

execute  instruments,  §  2938,  p.   1716. 
Sole  method  of  review  except  in  three  cases  of  §  25   (a),  §  2928,  p. 

1714. 
Limited  to  matters  of  law  under  §  24  (b),  §  2929,  p.  1715. 
Exemptions  reviewable  only  bj^  petition  to  review,  §  2930,  p.   1715. 
Reopening  or  refusal  to  reopen  closed  estates   reviewable  only  by 

petition  to  revise,   §  2931,  p.   1715. 
Administrative  orders  reviewable  under  §  24   (b),  §  2932,  p.   1715. 
In  "Controversies  arising  in  bankruptcy  proceedings" 
When  will  lie,  §  2940,  p.  1717. 
Whether  §  24  applies  to  orders  in  independent  plenary  suits,  §  2941,  p. 

1717. 
Section  24  (b)  authorizes  a  review  of  law  only,  not  facts,  §  2942,  p.  1719. 
Intervening    petitions    claiming   property    or    liens,    reviewable    by   peti- 
tion to  revise,  §  2943,  p.   1720. 
Expenses  and  Commissions 

Review  of  allowances  of,  §  2287,  p.  1398. 
Findings   of   fact,   or   equivalent,   essential   to   show   issues    same,    §    3007,   p. 

1740. 
Fundamental  distinction  between  steps  "in  bankruptcy  proceedings"  proper 

and  incidental  "controversies,"  §  2864,  p.  1678. 
No  Indirect  review  by  suing  trustee  in  U.   S.   Circuit   Court,  where   litigant 

dissatisfied  in  bankruptcy  proceedings,  §  1703,  p.  1051. 
Issues   directly   raised   by   pleading   considered,   though   first   made   point   of 

on  appeal,  §  3006,  p.  1740. 
Judgments  on  facts  not  disturbed  except  for  manifest  error,  §  3009,  p.  1741. 
Jurisdictional    questions    considered    for    first    time    on    review,    though    not 

considered  below  nor  assigned  as  error,   §   3004,   p.   1739. 
Jurisdictional   questions,  unless   nonwaivable,   not   considered  for   first   time 

on   review,   §   3003,   p.    1739. 
Obedience   to   mandate      enforced  by  mandamus,   §   3012,   p.    1743. 
Objections  not  .raised  below,   not  heard  above,  §   3001,  p.   1738. 
"Opinion"  of  Court  insufficient,  though  may  be  "looked  to/'  §  3008,  p.  1740. 
Parties  on 

In  General,  §  2825,  p.  1653. 

Must   have   substantial   interest   in   controversy,   §   2826,   p.    1653. 
Must  be  in  trustee's  name,  if  in  behalf  of  the   State  and  after  election 
of  trustee,  §  2827,  p.  1653. 

Excci)t    when    controversy    about    trustee's    own    compensation,    § 

2828,   p.    1655. 
Or  trustee's  own   expense,   §   2828,  p.   1655. 
Or  trustee's  report  of  exempt  property,  §  2828,  p.  1655. 
Or  when  about  trustee's  own  conduct  or  administration,  §  2829,  p. 
1655. 


GENERAL  INDEX.  2063 

APPEAL  AND  ERROR— Continued. 
Joint  appeal,  §  2836,  p.  1656. 

Omitted  parties  made  parties  on  appeal.  §  2837,  p.  1G57 
Creditors   assenting  to   composition,   necessary   parties    on   appeal   from 

confirmation,  §  2838,  p.  1657. 
Trustee  refusing  to  appeal,  may  be   ordered,  §  2830,  p.   1655. 
Creditor  authorized  to  use  trustee's  name,  when,  §  2830,  p.  1655. 
Court  may  require  creditor  to  indemnify  trustee,  §  2831,  p.  1655. 
Laches  may  bar  right  to  object  to  other  than  trustee  appealing,  §  2832, 

p.  1655. 
Before  election  of  trustee  appeal   or  error  may  be  by  creditor,   §   2833, 

p.    1656. 
Appeal  by  one  party  does  not  necessarily  bring  up  case  as  to  all,  §  2834, 

p.  1656. 
Appeal   not  dismissed  for  lack  of  necessary  parties  where   not  parties 

below  but   represented  by   trustee,   §  2835,   p.   1656. 
Petitioning  creditors'   attorneys'   fees,   to  be   reviewed  by   appeal,   §   2076,   p. 

1286. 
Plain  error  noticed,  though  not  raised  by  parties  themselves,  §  3005,  p.  1740. 
Procedure  on  Appeal 

Follows    equit}^   appeal   procedure,   §    2959,   p.    1725. 

Application  for  leave,  allowance,  citation  and  notice,  §   2960,  p.   1725. 

Assignment  of  errors  to  be  filed,   §  2961,   p.   1726. 

Complete  record  to  be  made,  §  2962,  p.  1726. 

Need   certify   only   so   much    as   sufficient   to    exhibit    errors,    §    29G3,   p. 

1726. 
Discretion   of  parties  in   making  up   records   not   to   be   interfered  with, 

§    2964,    p.    1727. 
Parties   may   stipulate   as    to   what   necessary,    §    2965,    p.    1727. 
Must  be   stipulated  or  certified  that  complete   record   of  all   necessary, 

§    2966,    p.    1727. 
Record  imports  verity,  may  not  be  contradicted,  explained  or  extended 

by  evidence  dehors,  §  2967,  p.  1727. 
Remedies   for   incomplete   transcript   on   appeal,   §    2968,   p.   1728. 
Whether  findings  of  fact  requisite  on  appeal,  §  2969,  p.  1729. 
Record    to    show    assignment    of    errors,    prayer    for    reversal    and    cita- 
tion,   §    2970,    p.    1729. 
Prayer  for  reversal  and  citation  waivable,  but  assignment  of  errors  not, 

§  2971,  p.  1729. 
Time   of  perfecting  of   appellate   proceedings,   §   2972,   p.    1730. 
Citation  may  be  granted  after  expiration  of  appeal  time,  §  2973,  p.  1730. 
Record   sufificient   if   contains    all    on   which    district   court   acted    if   not 

all   on  which   referee  acted,   §  2974,  p.   1730. 
Record  to  be  printed,  §  2975,  p.  1731. 
Procedure  on  Error  Proceedings,  or  Petition  for  Review  1 

Record  to  present,  clearly,  issues  of  law,  §  2951,  p.  1723. 
Record  to  show  insufficiency  of  grounds  for  order,  §  2952,  p.   1723. 
Whether  testimony  and  other  evidence  to  appear,  §  2953,  p.  1724. 
Whether  "bill  of  exceptions"  proper,  §  2954,  p.   1724. 
Findings  of  fact  or  equivalent,  requisite,  §  2955,  p.  1724. 
Mere    "Opinion"    of    District    Court    insufficient,    unless    made    part    of 

record,  §  2956,  p.  1724. 
Opinion  may  be  "looked  to"   §   2957,  p.   1725. 


2064  GENERAL  INDEX. 

APPEAL  AND  ERROR— Continued. 

Due  notice  to  be  given,  §  2958,  p.  1725. 

Writ   of  error,  §   2945,   p.   1721. 

Petition  to  revise,  §  2945,  p.   1721. 

Notice,  §  2945,  p.  1721. 

If  by  petition  to  revise,  tiling  of  petition  and  notice,  sole  requirement, 

§    2946,    p.    1721. 
Petition  for   review  to  be  filed,  §  2947,  p.   1722. 
Petition  to  set  forth  order  complained  of,  §  2948,  p.  1722. 
How  far  to  set  forth  issue  on  which  erroneous  order  made,  §  2949,  p. 

1722. 
Record  to  set  forth  order   complained  of,   §  2950,   p.   1723. 
Record  on 

To  show  same  issues  presented  to  court  below,  §  3002,  p.  1738. 
Refusal    to    confirm    composition    not    to    be    reversed    except    for    abuse    of 

discretion,  §  2413,  p.  1455. 
Refusal    to    permit    amendment,    may    be    reviewable    for    abuse    of    discre- 
tion, §  2622,  p.  1565. 
Review  of  Referee's  Orders 

Hearing  upon  review,  §  2861,  p.  1670;  §  2862,  p.  1672;  §  2863,  p.  1673. 

Jurisdiction,  §  2839,  p.  1658. 

Order  and  finding  presumed  correct,  until  manifest  error  shown,  §  2861, 

p.  1670. 
Points  not  discussed  below,  §  2862,  p.  1672. 
Procedure  on 

Certificate  of  question,  §  2852,  p.  1664. 

Summary    of   evidence,    §    2852,    p.    1664. 

Findings  of  fact,  §  2852,  p.  1664. 

Order   of   referee,    §    2852,   p.    1664. 

Certificate  prepared  by  counsel,  §  2853,  p.  1665. 

Record  on  review  to   show   certificate,  §   2854,  p.   1665. 

Not  entire  evidence  but  only  "summary"  to  be  certified,   §  2855,  p. 

1666. 
Remedies   for   incomplete   record,   §   2856,   p.   1667. 
Referee  also  to  certify  findings  of  fact,  §  2857,  p.  1668. 
Precise   question  for  review  to  be   stated   clearly   and   distinctly,   § 

2858,  p.    1669. 

Petition   and   certificate   transmitted   by   referee   to    district   clerk^   § 

2859,  p.  1669. 

Formal  written  "exceptions"  need  not  be  filed,  §  2845,  p.  1661. 
Petition  for  review,  §  2846,  p.  1662. 

Petition   must   set   forth   errors   complained   of,   §   2847,   p.   1662. 
New  facts  not  to  be  set  up  changing  case,  §  2848,  p.  1662. 
Petition  should  pray  for  review  of  order,  §  2849,  p.  1663. 
'  Petition  to  be   filed  with   referee,   §  2850,  p.   1663. 

Time  limited  for  filing  petition  for  review,  §  2851,  p.  1663. 

Order  must  be  made,  3  2810,  p.   lHo',). 

Order  must  be  final,     -.lot  interlocutory,  §  2841,  p.   1600. 

Reviewing  referee's  "decision,"  or  "opinion,"  §  2^40,  p.   1660. 

No   review   of  hypothetical    caestion,   §    2340,   p.    ]560. 

No  "general"  review,  §  28H,  p.  I60I. 

Exception  to  be  taken  to  ordc",  -i  2842,  p.   lilOJ. 


GENERAL  INDEX.  2065 

APPEAL  AND  ERROR— Continued. 

Exceptions  to  findings  of  fact,  §  2843,  p.  1661. 
Exceptions  must  be  specific,  §  2^i:i,  p.  1661. 
Stay  of  Execution  of  Order,  §  2860,  i>.  1609. 
Remanding  for  further  testimony,  §  2863,  p.  1673. 

Security  on 

On  petition  for  review,  not  requisite,  §  2976,  p.  1731. 

On  appeal,  requisite,  §  2977,  p.  1731. 

Approval  of  security,  perfects  and  allows  appeal,  §  2978,  p.  1732. 

Perfecting  appeal  transfers  jurisdiction  and  m  further  r.eps  .possible,  § 

2979,    p.    1732. 
Trustee  need  not  give  Bond,  §  2980,  p.  1732. 
Summary   orders   upon  bankrupts   and   others  to   surrender,   set   aside   only 

for  manifest  error,  §  1854,  p.  1153. 
Summary  orders,  whether  to  be  "reviewed"   or  "appealed,"  §  1855,  p.     1153. 

Time  for  Appeal 

Appeals  may  be  heard  in  appellate  court  in  term  or  vacation,  §  2982,  p. 
1733. 

Record  to  show  time  of  appeal,  §  2983,  p.   1733. 

Date  of  entering  order  or  judgment,  not  of  actual  rendition,  fixes  date, 
§  2984,  p.  1733. 

Appeal  not  "taken"  until  "allowance"  niado,  and  bond  and  citation 
filed,    §    2985,    p.  _1733. 

Delay  in  bond  and  citation  not  fatal,  if  appeal  "allowed"  in  time, 
§  2986,  p.   1733.  • 

Application  for  extension  too  late  after  expiration  of  time,  §  2987,  p.  1734. 

In  bankruptcy  proceedings  proper,  within  ten   days,  §  2981,  p.   1732. 

Begins  from  date  of  entry  of  order  overruling  motion  for  rehearing, 
§    2988,    p.    1735. 

Motion  for  rehearing  not  filed  in  time,  insufficient,  §  2989,  p.  1735. 

Reviving  lost  right  of  appeal  by  motion  pretended  to  be  for  re- 
consideration of  merits,  §  2990,  p.  1735. 

Alias  order  of  adjudication  ineffective  to  revive  lost  right  of  appeal, 
§  2991,  p.  1735. 

Time  for  appeal  in  "controversies,"  limited  by  i\ct  creating  Circuit 
Court  of  Appeals,  §  2992,  p.   1736. 

No   express   time  for   petitions   for  review,   §   2993,  p.   1736. 

Dismissed   for   laches,    §   2994,   p.    1736. 

Not  dismissed  unless  delay  unreasonable,  §  2995,  p.  1737. 

Delay  excusable   on   good  cause   shown,   §   2996,   p.   1737. 

By   analogy   should   be   filed   within   six   m.onths'   time,   §    2037,   p.    1737. 

At  least  in  all  cases  of  "Controversies,"   §   2998,  p.   1737. 

Time  for  review  in  bankruptcy  proceedings  proper,  ten  days  by  an- 
alogy,  §  2999,   p.   1737. 

Rehearing  where  order  based  on  authoritj^  since  overruled,  §  3000, 
p.  1738. 

Time  for  appeal  in  "Controversies" 

Limited  by  act  creating  Circuit  Court  of  Appeals,  §  2992,  p.  1736. 
Trivialities    not    considered — substantial    interest    to    be    shown,    §    3010,    p. 
1742. 

2  Rem  B— 55 


2066  GENERAL  INDEX. 

APPEAL  AND  ERROR— Continued. 

Trustee's  Report 

Review   of  approval   of,   §   2287,  p.   1398. 
When  to  appeal,  when  to  petition  for  review,  §  2880,  p.  1689. 

Whether  to  appeal  or  petition  for  review 

Optional   in  proper  case,  §  2883,  p.   1693. 

When  optional  in  "controversies,"  §  2884,  p.   1694. 

If  facts   undisputed,  petition  to  revise   only  remedy,  §   2885,  p.   1695. 

If  facts   disputed,  may  be  reviewed  only  if  appeal   available,   §   2886,   p. 

1695. 
Holding  that  appeal  under  25  (a)  exclusive  of  error,  §  2887,  p.  1695. 
Holding  that  optional  even  in  three  cases  where  appeal  provided  under 
~  25    (a),   §    2888,   p.    1696. 

When  to  appeal,  when  to  petition  for  review 

Treating   "appeal"'   as    petition   for   revision,   §   2916,   p.    1709;    §   2917,   p. 

1709. 
Simultaneous  appeal  and  petition  for  review,  §  2918,  p.  1709;  §  2919,  p. 

1710. 

Who  may  appeal 

In  composition  matters,  §  2412,  p.  1454. 

APPEALS  TO  SUPREME  COURT 
From  Courts  of  Bankruptcy 
In   Bankruptcy  proceedings 

Only  allowance  of  rejection  of  claims  appealable,  §  ."'013,  p.  1744. 

Only  permissible,  then,  if  amount  in  controversy  exceeds  S2,000, 
etc.,  §   3014,  p.  1745. 

Some  Supreme  Court  Justice  certifies  essential  to  uniform  con- 
struction of  act,  §  3015,  p.  1745. 

In  "Controversies" 

"Question  of  Jurisdiction"  means  jurisdiction  over  subject  matter  as 

pleaded,  not  over  particular  person  as  dependent  on  proof,  §  3021, 

p.   1747. 
Appeals   to   Supreme  Court  to  be  taken  within  thirty  days,   §   3022, 

p.  1748. 
Record  for  transmission  to  Supreme  Court,  §  3023,  p.  1748. 
Where  would  have  jurisdiction  if  "other  cases,"  §  3016,  p.   1745. 
"Other  cases"  refer  to  cases  covered  by  Act  creating  Circuit  Court 

of  Appeal,  §  3017,  p.  1745. 
Only  in  "Controversies"  and  not  in  bankruptcy  Proceedings  proper, 

§  3018,  p.  1746. 
Jurisdictional  questions,  in  "controversies,"  appealable  directly  from 

District   Court  to   Supreme,   only   where   jurisdiction   would    exist 

if  not  concerning  bankruptcy,  §  3019,  p.  1746. 
To  l)e  on  certificate,  §  3020,  p.   1747. 

From  State   Supreme   Court 

Reviewable  when  presents  federal  question,  §  3026,  p.  1749. 

APPEARANCE 

Entry  of  in  opposition  to  confirmation  to  composition 

Requisite,  §  2378,  p.   14  10. 


GENERAL  INDEX.  2067 

APPEARANCE— Continued. 

Entry  of  in  opposition  to  discharge,   §   2448,  p.   1485. 

Essential.    §    2449,    p.    1486. 

May   be   by   attorney,   §   2450,   p.    1486. 

Gives   ten   days   time   to   file   specifications,   §   2451,   p.   1486. 
Voluntary,   on    involuntary    petition,   §    314,   p.    221. 

APPEARING    FOR    EXAMINATION    AT   TRIAL 

.See    "I'roducing   Books    and   Appearing   for    Examination    at   Trial." 

APPLICATION  OF  PAYMENTS 

Creditors'  right  to  apply  in  absence  of  debtor's  instructions,  §  1190,  p.  695. 
To  be  as   Equity  i-equires  in  ajDsence  of   directions,   §   1191,   p.   695. 
Payment  actually  made,   not  to  be   applied   to   evade   preference   statute,  § 

1284,   p.    758. 
Rights  of  parties  as  to,  unimpaired  by  bankruptcy,  §  1189,  p.  694. 

APPOINTMENT 

Of   Referee,  §   498,  p.  319. 
Of  trustee 

See  "Trustee,  Election  and  Appointment  of." 

APPOINTMENT  OF  TRUSTEE  AS  ACT  OF  BANKRUPTCY 

See  "Trusteeship  as  Act  of  Bankruptcy." 

Also,  see  "Receiverships  and  Trusteeships  as  Acts  of  Bankruptcy." 

APPORTIONMENT  • 

Of  attorneys'  fees  where  intervening  creditors  assist,  §  2066,  p.  1283. 
In  cases  of  consolidation,  §  2067,  p.  1283. 
Of  referee's  expenses,  §  2032,  p.  1261. 

APPRAISAL 

Not  Admissible  against  alleged  fraudulent  transferee,  §  1748,  p.  1071. 
Admissibility  of  as  against  creditor,   §   1357,  p.   791;   §  J504,   p.   900;   §   1748, 

p.  1071. 
Appraisers  to  be  appointed  by  and  report  to  the  court,  §  1927,  p.  1204. 
Appraisers  to  be  disinterested,  §  1926,  p.  1203. 
Appraisers  to  be  sworn,  §  1929,  p.  1204.  ' 

Not  Binding  as  to  exemptions,  §  1080,  p.  613. 
Methods  of  arriving  at  appraisal  values,  §  1930,  p.  1205. 
AIL  Property  of  estate  to  be  appraised,  §  1924,  p.  1203. 
Only  Property  of  estate  need  be  appraised,  §  1925,  p.  1203. 
As    Provided    for   by    the    First  .English    Bankruptcy    Act,    34    Henry    VIII, 

Introd.  (g),  p.  6. 
Reappraisal,  §  19301^,  p.  1206. 
Three  appraisers,  §  1928,  p.  1204. 

APPRAISERS'  FEES 

Allowable  in  bankruptcy,  §  2121,  p.  1308. 

Taxable  as  part  of  costs  of  selling  free  from  liens,  §  1996,  p.  1234. 

APPROVAL  OF  COURT 

Before  starting  litigation  by  trustee  not  necessary,  §  899,  p.  515. 
Except  where  substituted  in  pending  suit,  §  899,  p.  515. 
Sales  in  bankruptcy,   subject   to,  §   1949,   p.   1215. 
Formal,  not  always  essential  to  confirmation,  §  1958,  p.  1220. 


206S  GENERAL  INDEX. 

APPROVAL    AND    DISAPPROVAL    OF    CREDITORS    ELECTION    OF 
TRUSTEE 

See  "Trustee — Approval  and  Disapproval   of  Creditors   Election  of." 

APPROVAL  OF  SECURITY 

Perfects  and  allows  appeal,  §  2978,  p.  1732. 

ARBITRATION  OF  CONTROVERSIES,  §  922,  p.  522. 

Allegations  of  application  for,  §  923,  p.  522.  • 

Application  for,  §  923,  p.  522. 

Procedure  on,  §  924,  p.  522. 

Findings  of  arbitrators,  have  force  of  verdict,  §  925,  p.  523. 

And  are  reviewable,  §  925,  p.  523. 

ARGUMENTATIVE  PLEADING 

Facts  not  to  be  alleged  argumentatively,  §  253,  p.  191;  §  2603,  p.  1555. 
Whether    negativing    of    exceptions    of    wage    earners,    etc.,    necessarily    by 
direct  denial,  §  245,  p.  188. 

"ARMED  WITH  PROCESS" 

See  "Creditor  Armed  with  Process." 

ARREST 

See  "Arrest  and  Detention  of  Bankrupt." 
Protection  of  bankrupt  from       , 

Attending   bankruptcy   court   or   performing   statutory   duties,    protected 

while,  §   470,  p.  305. 
Before  bankruptcy,  protection  equally  available,  §  465,  p.  304. 
Contempt  of  bankruptcy  court,  arrest  for  npt  within  protection,   §   468, 

p.  305. 
Contempt  of  other  courts,  whether  within  protection,  §  469,  p.  305. 
Criminal  cl^arge,  arrest  for  not  within  protection,  §  467,  p.  305. 
Federal   court,   whether   protection   applies   to   arrest   on   process    from, 

§  471,  p.  306. 
Jurisdiction,  §  463,  p.  303. 

ARREST  AND  DETENTION  OF  BANKRUPT 

Absconding  bankrupts  outlawed  by  First  English  Bankruptcy  Act,  34  Henry 

VIII,  Introd.   (g),  p.  8. 
For  examination,  §  371,  p.  245. 

Warrant  not  proper  where  bankrupt  already  departed,  §  372,  p.  246. 
Writ  of  ne  exeat  also  available,  §  373,  p.  246. 

ARTISANS'  LIENS,  §  1158,  p.  683. 

ASSAULT  AND  BATTERY 

Judgments  for,  not  discharged,  §  2754,  p.  1620. 

ASSETS 

See  Different  Classes  of  Particular  Property  Involved. 
Duty  of  bankrupt  to  file  schedule  of,  §  477,  p.  308. 
If  any  shown,  trustee  to  be  appointed,  §  872,  p.  499. 


GENERAL  INDEX.  2069 

ASSIGNED  CLAIMS 

Assigned  before  bankruptc}%  §  608,  p.  361;  §  2135,  p.  1317. 
Assigned  after  bankruptcy,  but  before  proof,  §  609,  p.  361. 
Assigned  after  proof,  §  610,  p.  362;  §  2277,  p.  1392;  §  742,  p.  442. 

ASSIGNEE 

Of  Bankrupt's  wages,  is  "adverse  claimant,"  §  1678,  p.  1034. 
For  Benefit  of  creditors 

Lien  of,  for  expenses  and  compensation,  not  "bankruptcy  proceedings,'' 
but  "controversies,"  §  2868,  p.  1683  n. 

Officer  of  corporation  acting  as,  does  not  estop  corporation  from  being 
petitioning  creditor,  §  225,  p.  178. 

As  candidate  for  trustee,  §  889,  p.  508. 

Compensation  and  expenses  of,  when  assignment  nullified  by  bank- 
ruptcy, see  "Assignments  and  Receiverships  Superseded  by  Bank-_ 
ruptcy." 

Bond  of,  no  liability  on  to  those  creditors  who  participate  in  defeating 
assignment,  §  1624,  p.  988. 

Not  "adverse  claimant"  as  to  proceeds  still  in  hand,  §  1665,  p.  1031. 

But  "adverse  claimant"  as  to  proceeds  already  disbursed,  §  1666,  p.  1031. 

Order  on  may  not  require  surrender  of  more  than  is  in  his  hands,  § 
1830,  p.  1125. 

Power  of  referee  to  order  surrender  from  assignees,  §  541,  p.  332. 

May  be  subjected  to  "general  examination,"  §  1527,  p.  913. 

Subject  to  summary  jurisdiction,  §  1822,  p.  1118. 

ASSIGNMENT 

Bankrupt  required  to  execute  assignment  of  life  insurance  policies  to  effect 

transfer  to  trustee,  §  1009,  p.  561. 
Compelling  bankrupt   to   execute,   to   aid   passing  of  title,   §    1115,   p.   636;    § 

1835,  p.  1128. 
Compelling  trustee  to   execute,  on  ordering  him   to  surrender  property  to 

rightful  owner,  §  1873,  p.  1163. 
Covenants  against,  not  violated  by  bankruptcy,  §  987,  p.  550. 
Life    insurance    policies    assigned    as    security,    bankrupt's    interest    therein 

passes  to  trustee,  §  1006,  p.  559. 
Petition    to    redeem    from    undisputed    lien    gives    jurisdiction    to    order,    on 

tender  of  amount  due,  §  1870,  p.  1163. 
Preceding  bankruptcy,  effect  on  right  to  forfeit  leasehold,  §  987,  p.  550. 

ASSIGNMENT  FOR  BENEFIT  OF  CREDITORS 
As  Act  of  Bankruptcy 

Act  of  Bankruptcy,  §  145,  p.  128. 

Assignment  must  be  "General,"  §  146,  p.  128. 

Intent  to  Defraud  not  requisite,  §  148,  p.  129. 

Insolvency  not  requisite,  §  147,  p.  128. 

"Preference"  need  not  result,  §  149,  p.  129. 

Solvency  no  Defense,  §  147,  p.  129. 

Whether    "Interference    with    Operation    of    Bankruptcy    Law,"    §    149, 

p.  129. 
Whether  "Transfer  to  Hinder  Creditors,"  §  149,  p.  129  n. 
Not  per  se  Illegal  nor  void,  but  voidable  merely,  §  1606,  p.  976. 


2070  ^  GENERAL  INDEX.    . 

ASSIGNMENT  FOR  BENEFIT  OF  CREDITORS— Continued. 

Laws  for,   distinguished  from   State  bankruptcy   and   State   insolvency  laws, 

§   1632,  p.   1004. 
Receivership    not    considered    equivalent    of    general    assignment    as    Act    of 

Bankruptcy,  §  150,  p.  130. 
Superseding  of  custody  under,  by  bankruptcy  court,  see  "Assignments  and 

Receiverships  Superseded  by  Bankruptcy." 

ASSIGNMENT  OF  CLAIM,  §  738,  p.  441. 

Several  assigned  to  one  person — claims  merged  for  voting,   §   574,  p.    348; 

§  739,  p.  441. 
After  bankruptcy,  but  before  filing  proof,  §  609,  p.  361;  §  741,  p.  441. 
Before  Bankruptcj^  §  608,  p.  361;  §  740,  p.  441. 
After  Filing,  §  610,  p.  362;   §  742,  p.  442. 
Notice  to  original  claimant,  §  743,  p.  442. 
Not  Payment  of  it,  §  738,  p.  441  n. 
By   Petitioning   creditor,   ineffectual   to    change    number    necessary    to    join, 

§  202,  p.  165. 
Priority,  right  of,  whether  destroyed  by,  §  2135,  p.  1317;  §  2183,  p.  1342. 
"Satisfactory  proof,"  of  assignment  to  be  filed,  §  744,  p.  442. 
Subrogation  of  assignee,  §  2277,  p.  1392;  §  610,  p.  362;  §  742,  p.  442. 

ASSIGNMENT  OF  ERRORS 

On  appeal,  to  be  filed,  §  2961,  p.  1726. 
Record  on  appeal  must  show,  §  2970,  p.  1729. 

Single,  sufficient  where  appeal  and  error  simultaneously  prosecuted,  §  2919, 
p.  1710;  §  2961,  p.  1726  n. 

ASSIGNMENTS  AND  RECEIVERSHIPS 

Created  before  four  months,  not  superseded,  §  1594,  p.  964. 

ASSIGNMENTS     AND     RECEIVERSHIPS     SUPERSEDED     BY     BANK- 
RUPTCY 

No  Liability  on  assignee's  bond  on  superseding  of  State  Court's  custody,  to 
those  creditors  who  participate  in  defeating  assignment,  §  1624,  p.  988. 

Whether  State  priorities  preserved  when  custody  superseded,  §  2196,  p. 
1347;  §  2197,  p.  1349;  §  2198,  p.  1351. 

Mortgagees  in  possession  under  mortgage  executed  for  benefit  of  all  cred- 
itors assenting  entitled  to  lien,  §  1617,  p.  984. 

Attaching  creditors  where  attachment  lien  preserved  for  benefit  of  estate 
entitled,  §  1618,  p.  984. 

Where  attachment  really  for  benefit  of  all,  creditor  entitled  to  reimburse- 
ment, §  1619,  p.  984. 

Whether  extent  of  lien  of  assignee,  receiver,  etc.,  may  be  fixed  by  State 
court  before  surrender,  §  1620,  p.  985.  " 

Only  expenses  and  compensation  for  services  beneficial  to  estate  and 
reasonable,  allowed  in  assignee's  and  receiver's  lien,  §  1621,  p.  986. 

Others'  right  to  be  worked  out  through  assignee  or  receiver,  §  1622,  p.  987. 

How  assignee's  or  receiver's  rights  to  be  presented,  §  1623,  p.  988. 

Nullified  by  bankruptcy,  §  1440,  p.  851. 

Whether  exemptions  allowed  out  of  fund,  §  1097,  p.  623. 
Whether  still  effective  to  avoid  liens  recorded  before  bankruptcy  and 
after  assignment,  §  1270,  p.  749. 


GENERAI.  INDEX.  2071 

ASSIGNMENTS     AND     RECEIVERSHIPS     SUPERSEDED     BY     BANK- 
BANKRUPTCY— C.nitinued. 

Until  adjudication,  custody  not  superseded,  §  1009,  p.  978;  §  1828,  p.  1124. 
Assignee  or  receiver  may  be  enjoined,  §  1610,  p.  978. 

May  be  ordered  summarily  to  surrender  assets,  §  1611,  p.  978;  §  1829,  p.  1125. 
No    summary   order  as   to   sums   already   disbursed,   §    1612,   p.   979;   §    1830, 

p.  1125;  §  1846,  p.  1145. 
Sales  by  assignee  under  void  Assignment,  §  1613,  p.  980. 
Assignee  has  lien  upon  surrendered  assets  for  expenses  and  compensation, 

§  1614,  p.  980. 
Assignment  must  be  "general"   and  "bona  fide,"   not  "partial"   nor  "fraudu- 
lent," §  1615,  p.  981. 
Receivers  entitled  to  lien  where  receiverships  nullified  by  bankruptcy,  §  1616, 

p.  982. 
No  interest  to  be  included  in  summary  order  on  receivers  and  assignees,  § 

1847,  p.  1145. 
Where  obtained  within  four  months.  §  1602,  p.  966. 
Basis  of  superseding  custody  of  assignee  and  receiver,  §  1603,  p.  967. 
Possession  under  general  assignment  superseded,  §  1604,  p.  975. 
Possession  under  State  court  receivership  superseded,  §  1605,  p.  975. 
Receiverships  in  suits  for  dissolution  of  corporations,  §  1605,  p.  975  n. 
General  assignments  not  per  se  illegal  nor  void,  but  voidable  merely,  §  1606, 

p.  976. 
Unless   petition   filed   within    four   months,    followed   by   adjudication,    State 

court's  custody  not  superseded,  §  1607,  p.  977. 
But  if  filed  within  four  months  and  adjudication   occurs,  assignment  void, 

§  1608,  p.  978. 

ASSIGNMENT  OF  WAGES  TO  BE  EARNED  IN  FUTURE 

Assignee  is  "adverse  claimant,"  §  1778,  p.  1034. 

Employer  is  adverse  claimant,  §  1679,  p.  1034;  §  1683,  p.  1035. 

Whether  discharged  by  assignor's  discharge,  §  2678,  p.  1591. 

ASSUMPTION 

Of  firm  debts  by  individual  partner 

Assented  to  by  firm  creditors,  §  2270,  p.  1388;  §  2264,  p.  1386. 

"ASSUMPTION  OF  JURISDICTION" 

See  "Custodia  Legis." 

ATTACHING  CREDITOR 

Attachment  lien  not  preserved,  but  attachment  really  brought  for  benefit  of 

all,  entitled  to  reimbursement,  §  1619,  p.  984. 
.\ttachment  lien  preserved  for  benefit  of  estate,   entitled  to  reimbursement, 

§  1618,  p.  984. 
Competent  as  Petitioning  Creditor,  §  234,  p.  183. 
May  Intervene  to  resist  involuntary  petition  witUout  surrendering  propertj' 

attached,  §  320,  p.  223. 
Receiving  proceeds  within  four  months  "adverse  claimant,"  §   1659,  p.   1029. 
Receiving  proceeds  after  bankruptcy,  not  "adverse  claimant,"  §  1660,  p.  1029, 

ATTACHMENT 

Bond  of,  released  if  liability  dependent  on  judgment,  §  1511,  p.  902. 
Brought  really  for  benefit  of  all,  attaching  creditor  entitled  to  reimburse- 
ment, §  1619,  p. '984. 


'2072  GENERAI,  INDEX. 

ATTACHMENT— Continued. 

Dissolved,  provability  of  costs,  §  693,  p.  420;  §  1487,  p.  885. 
Filing   of   bankruptcy   petition   operating   as   a   "caveat,   attachment    and   in- 
junction," §  1215,  p.  718. 
No  garnishment  of  dividend,  in  hands  of  trustee,  §  2224,  p.  1363. 
Levying  on  exempt  propertj'  while  in  trustee's  hands,  §  1107,  p.  633. 
Obtained  prior  to  four  months 
Not  Abated,  §  1588,  p.  962. 

Lien   not    nullified    though    judgment    rendered    within    four    months,    § 
1455,  p.  863;  §  1588,  p.  962. 
Permitting  creditors  to  levy  after  bankruptcy,  in  order  to  "arm  with  proc- 
ess," §  1239,  p.  735. 
Preserved  for  benefit   of   estate,  attaching  creditors   entitled   to    reimburse- 
ment, §  1618,  p.  984. 
Restraining  sale  under,  §  1902,  p.  1189;  §  1903,  p.  1190. 

ATTENDANCE  OF  BANKRUPT,  §  455,  p.  302. 

Order  requisite  to  procure  attendance  at  creditors'  meeting,  §  457,  p.  302. 

But  not  on  discharge  hearing,  §  457,  p.  302. 

Order  requisite  to  procure  attendance  for  examination,  §  1537,  p.  918;  §  1539, 
p.  918. 

No  order  requisite  for  attendance  of  bankrupt  for  examination  at  first  meet- 
ing,  §   1538,  p.  918. 

ATTORNEY 

Assignee's  or  Receiver's  in  State  court,  §  1622,  p.  987;  §  1621,  p.  987. 
Attaching  Creditor's,  where  attachment  lien  preserved  for  benefit  of  estate, 

§  1618,  p.  984. 
Only  attorneys  Admitted  to  U.  S.  Court,  to  practice  in  bankruptcy,  §  586, 

p.  353;  §  2450,  p.  1486. 
Bankrupt  may  verify  petition  before  his  own  attorney,  §  194,  p.  159. 
Bankrupt's 

Subject  to  summary  jurisdiction,  §  1821,  p.  1118. 
Collection  fee  of,  stipulated  in  note,  when  provable,  §  671,  p.  407. 
Competent  to  withdraw  proofs  of  claim  without  written  power,  §'624,  p.  368. 
Creditor  may  act  by,  §  583,  p.  350. 
Creditors  not  to  elect  trustee's  attorney,  §  901,  p.  516. 
Entry  of  Appearance  by   in   Opposition   to  Discharge,  permissible  without 

written  power,  §  2450,  p.  1486. 
Fees   of,   in   bankruptcy   proceedings,    see   "Attorneys'    Fees   in    Bankruptcy 

Proceedings." 
Lien  of,  on  client's  dividend,  §  1885,  p.  1179  n;  §  2229,  p.  1364. 
Prepaying  or  securing  of,  preparatory  to  going  into  bankruptcy,  §  1504,  p. 

900. 
Proofs  of  claims  may  be  verified  before  claimant's  attorney,  §  614,  p.  365. 
Of  Trustee 

Not  to  act  as  Claimant's  attorney,  §  851,  p.  490. 

Fees  for  services  Benefiting  Entire   Fund  taxable  in   selling  free  from 

liens,  §  1994,  p.  1234. 
Fees    for    services    in    litigating    liens,    not    chargeable    against    fund    in 

selling  free  from  liens,  §  1994,  p.  1234. 
Adverse  interests,  attorney  representing,  not  to  be  employed  by  trustee, 

§  902,  p.  516. 
Trustee  liable  for  his  attorney's  misfeasance,  §  903,  p.  517. 


GENERAL  INDEX.  2073 

ATTORNEY— Continued. 
Verification  by 

Of  Involuntary  Petition,  §  277,  p.  202. 
Of  Injunction  Petition,  §  369,  p.  245;  §  1920,  p.  1196. 
Of  Specifications  in  Opposition  to  Discharge,  §  2590,  p.  1551. 
Capacity  and  Authority  of  Attorney  to  be  alleged,  in  verifying,  §  279, 
p.  203. 
Written  power  requisite  to  vote,  §  584,  p.  351. 

Written  pov^er  of  attorney  not  requisite,  in  other  matters  than  voting,  § 
585,  p.  352. 

ATTORNEYS'  FEES  IN  BANKRUPTCY  PROCEEDINGS 

Reviewable  by  petition  to  revise,  §  2933,  p.  1715. 

Allowance  or  disallowance  of,  are  "Proceedings  in  Bankruptcy  Proper," 
§  2868,  p.  1683. 

What  attorneys'  fees  allowable,  §  2042,  p.  1265. 

Clerical  work  and  ordinary  business  advice  not  to  be  charged  for  at  pro- 
fessional rates,  §  2043,  p.  1265. 

For  many  services  attorney  to  seek  pay  from  own  client,  not  from  estate, 
§  2044,  p.  1265. 

Fees  must  be  "reasonable,"  §  2045,  p.  1266. 

"Reasonableness"  left  to  sound  judicial  discretion  of  court,  §   2046,  p.   1267. 

Various  elements  to  be  considered,  each  having  modifying  effect'  §  2047, 
p.  1268. 

Sixth  Element,  in  Bankruptcy  cases,  "economy,"  §  2048,  p.  1271. 

Bankrupt's  attorney's  fees,  §  2077,  p.  1286. 

No  allowance  out  of  mortgaged  property,  except  for  mere  preservation, 
§  2084,  p.  1289. 

None  for  services  in  opposing  bankruptcy  proceedings,  §  2085,  p.   1289. 

For  attendance  at  bankrupt's  examination  allowable,  §  2086,  p.  1290. 

Whether  fees  allowable  for  petition  for  discharge,  etc.,  §  2087,  p.   1291. 

No  allowance  for  bankrupt's  admission  in  writing  of  inability  to  pay 
debts,  etc.,  nor  for  services  in  aid  of  adjudication;  nor  in  contests 
over  exemptions,  §  2088,  p.  1293. 

Bankrupt's  fee  allowable  more  discretionary  in  voluntary  than  in  in- 
voluntary cases,  §  2089,  p.  1293. 

Test  in  voluntary  cases,  in  general,  §  2090,  p.  1294. 

Preliminary    consultations    may    be    charged   for,    in    voluntary   cases,    § 

2091,  p.  1295. 

Application    for    receiver    or   other   provisional    remedy,    allowed    for,    § 

2092,  p.  1295. 

Only  one  fee.  to  be  allowed,  §  2093,  p.  1295. 

Bankrupt  paying  attorney  in  advance,  §  2094,  p.  1296. 

All  payments  to  attorney  in  contemplation  of  bankruptcy  governed  by 

§  60  (d),  §  2095,  p.  1296. 
In   involuntary  cases,  confined  to  services   rendered  while  bankrupt  in 

performance  of  duties  prescribed  by  law,  §  2078,  p.  1287. 
Actual  benefit  to  estate  no  test,  §  2079,  p.  1288. 
Services   must   be   reasonably   necessary   and   actually   rendered,   §    2080, 

p.  1288. 
Must  be  professional  legal  services,  and  not  merely  clerical  or  business, 

§  2081,  p.  1288. 


2074  GENERAL  IiNDEX. 

ATTORNEYS'  FEES  IN  BANKRUPTCY  PROCEEDINGS— Continued. 

Legal  assistance  in  preparing  schedules,  examining  claims  at  first  meet- 
ing, etc.,  proper,  §  2082,  p.  1288. 
"Amount  involved"  not  entire  estate  but  only  surplus  over  valid  Liens, 

§  2083,  p.  1289. 
Prepayment  before  filing  petition,  or  at  any   time   before  adjudication, 

§  2100,  p.  1298. 
Whether  dififerent>  principles   govern   in  re-examination   of   prepaid   fees 

from  those  where  allowed  out  of  estate,  §  2096,  p.  1296. 
Under   §   60    (d)    services   prepaid   must   be   for   benefit    of   estate    or    in 

furtherance   of  administration,  §   2097.  p.   1296. 
Prepaid  fee,  to  be  "reasonable"   and  subject  to   re-examination,   §   2098, 

p.  1298. 
Summary   jurisdiction    over    attorney    to    require    repaj-ment    of    excess, 

§  2099,  p.  1298. 
Prepayment  effected  by  giving  security,  §  2101,  p.  1298. 
Creditors    not    entitled    to    reimbursement    for    objections    to    claims    before 
election  of  trustee,  even  where  successful,  §  2057,  p.  1279;  §  2071,  p.   1285. 
No  fees  for  preparation  of  papers  where  Supreme  Court's  Forms  adequate, 

§  2058,  p.  1280. 
Whether   trustee    allowed    attorney's    fees    for    own    professional    service,    § 

2059,  p.  1280. 
Attorneys    for   creditors    co-operating   with    trustee's    or    receiver's    attorney 

not  entitled,  §  2060,  p.  1281. 
Exhausting   entire    estate    in    attorney's    fees   in    efforts    to    discover    assets, 

§  2061,  p.  1282. 
Fee  bills,  properly,  should  be  itemized,  §  2062,  p.  1282. 
Items  properly  to  be  grouped  according  to  separate   controversies   involved 

and  estimate  made  as  to  each  group,  §  2049,  p.  1272. 
"Retainer  fees"  no  place  in  bankruptcy,  §  2050,  p.  1274. 
Mere    incidental    benefit   from    services    in    opposing    adjudication,    etc.,    not 

sufficient,  §  2051,  p.  1274. 
Showing  to  be  made  of  propriety  and  reasonableness,  §  2052,  p.  1275. 
Notice  to  creditors  not  requisite,  unless  by  local  rule,  §  2053,  p.  1275. 
Trustee's  and  receiver's  attorney's  fees,  §  2054,  p.  1276. 
Not  to  employ  attorney  to  do  ordinarj-  business  duties  of  trustee,  §  2f:55,  p. 

1278. 
Fees  allowable  to  trustee's  attorney  for  investigating  and  resisting  impropcr 
claims,  §  2056,  p.  1279. 

Petitioning  creditors'  attorney's  fees,  §  206,3,  p.  1282. 

No   fees   for   examination   of   bankrupt   after   appointment   of   trustee.   § 

2072,  p.  1285. 
But  allowable  for  pursuing  property  before  adjudication,  §  2073,  p.  1285. 
None  for  services  after  election  of  trustee,  §  2074,  p.  1285. 
No  allowance  in  general  out  of  mortgaged  property  sold,  §  2075,  p.  1285. 
Review  of  allowance  of  petitioning  creditor's  fees  by  appeal,  §  2076,  p. 

1286. 
Are  matter  of  right,  §  2064,  p.  1282. 

Only  one  fee,  irrespective  of  number  of  attorneys,  §  2065,  p.  1282. 
Apportionment  where  intervening  credit(^rs  assist,  §   2066,  p.  1283. 
Apportionment  in  cases  of  consolidation,  §  2067,  p.  1283. 
For  what  services  allowable  to  petitioning  creditors,  §  2068,  p.  1283. 


GENERAL  INDEX.  2075 

ATTORNEYS'  FEES  IN  BANKRUPTCY  PROCEEDINGS— Continued. 

Allowance   not   to   be   on   basis   of   plaintiffs'    in   creditors'   bills,    §   2069, 

p.  1284. 
"Amount  involved,"  not  entire  estate  but  only  surplus  over  valid  liens," 

§  2070,  p.  1284. 
No  fees  to  petitioning  creditors  for  objecting  to  claims  at  election  of 

trustee,   §   2057,   p.   1279;   §   2071,   p.    1285. 

AUCTION 

Sales  of  real  estate  at,  to  be  on  four  weeks  advertisement,  §  1939,  p.  1210. 
Sales  to  be  at,  unless  expressly  authorized  at  private  sale,  §  1947,  p.  1214. 

AUCTIONEER 

Employment  of  to  conduct   sales  in  bankruptcy,   §  1934,  p.   1208;   §   2037,   p. 

1263. 
Compensation  of,  §  2037,  p.  1263. 

AUTHORITY  OF  CORPORATE  OFFICER 

To  file  petition,  §  219,  p.  175. 

AUDITING  ACCOUNTS 

Duty  of  referee  to  audit  trustee's  accounts,  §  517,  p.  323. 
Duty  of  referee  to  audit  receiver's  account,  §  518,  p.  323. 

AUTHORITY  SINCE  OVERRULED 

Rehearing  where  order  based  on,  §  3000,  p.  1738. 

BAILEE 

In  possession,  when  is  "adverse  claimant,"  §  1673,  p.  1033;  §  1826,  p.  1121. 

BAILMENT 

Actual,  but  voidable  Sales,  disguised  as,  §  1228,  p.  726. 
Reclaiming  of  property  left  with  bankrupt  on,  §  1877,  p.  1165. 
Trustee  bound  by  Bankrupt's,  §  1145,  p.  676. 
"Warehousing,"  §  1146,  p.  676. 

BANK 

Owing  "deposit,"  when  is  "adverse  claimant,"  §  1681,  p.  1035;  §  1822,  p.  1119. 

"BANKER'S  LIEN,"  §  1329,  p.  779. 

BANKRUPT 

Actual  or  constructive  possession  by,  constitutes  custodia  legis,  §  1807,  p. 
1101. 

Attorney's  Fees  of,  see  "Attorneys'  Fees  in  Bankruptcy  Proceedings — Bank- 
rupt's Attorney's  Fees." 

Is  "bankrupt"  for  Purposes  of  protection  as  long  as  any  proceedings  pend- 
ing, §  473,  p.  306. 

Corporation  officers  as  the  "bankrupt,"  §  456,  p.  302;  §  1821,  p.  1118;  §  1527, 
p.  914;  §  2126,  p.  1309. 

Corporation,  officers  of,  subject  to  summary  jurisdiction,  §   1821,   p.   1118. 

Death  of  before  redemption  of  life  insurance  policy  accomplished,  §  1017, 
p.  567. 

Discharge  of,  see  "Discharge — Who  May  Apply  For." 


2076  GENERAL  INDEX. 

BANKRUPT— Continued. 
Duties  of 

To  attend  hearing  on  discharge,  §  2455,  p.  1487;  §  455,  p.  302. 
Preparation  of  schedules,  §  461,  p.  303;  §  477,  p.  308. 
Statutory  duties,  §  454,  p.  302. 
"Attendance,"  §  455,  p.   302;  §   2455,  p.   1487. 
"Obedience,"  §  458,  p.  303. 

Examination  of  claims,  reporting  of  fraud,  etc.,  §  459,  p.  303. 
Execution  of  papers,  §  460,  p.  303. 

Compelled   to   execute   assignment  to   efifect   transfer   of   insurance   poli- 
cies, §  1009,  p.  561. 
Submission  to  examination,  §  462,  p.  303. 
Endorsers   and   sureties   for,   impliedly   excepted   by    statute   from   rule    that 

contingent  claims  not  provable,  *§  642,  p.  383. 
Not  entitled  to  reimbursement  for  care  of  Exempt  property  pending  setting 

off,  §  1092,  p.  617;  §  2025,  p.  1258. 
No  reimbursement  for  attending  hearing  on  discharge,  §  2455,  p.  1487. 
Expenses   of,  where  examined  away  from  his   town,  §   1577,   p.  945;   §   2124, 

p.  1309. 
General    Examinations    of,    see    "General    Examinations    of    Bankrupts    and 

Witnesses." 
Infliction  of  Penalty  or  Forfeiture  upon,  for  taking  benefit  of  act  prohibited, 

§  474,  p.  306. 
Is  "Interested"  in  estate,  though  assets   insufficient  to  pay  debts,  §  1644,  p. 

1012. 
May  except  to  trustee's  report  of  exempted  property,  §  1081,  p.  613. 
May  buy  at  trustee's  sale,  §  1955,  p.  1218. 

May  Continue   prosecution  of  Pending  Suit  where  trustee   does  not  inter- 
vene, §  1644,  p.   1011. 
May  File  petition  to  sell  before  receiver  or  trustee  appointed,  §  1941,  p.  1211. 
May  Petition  for  Injunction,  §  368,  p.  244. 
Officers  of  -a  bankrupt  corporation  are  the  "bankrupt,"  §  456,  p.  302;  §  1821, 

p.  1118;   §  1527,  p.  914;  §  2126,  p.  1309. 
Orders  upon  to  execute  assignments  and  other  papers,  §  1115,  p.  636. 
As  to  Licenses,  §  1115,  p.  637  n. 
As  to  Seats  in  Stock  Exchange,  §  1115,  p.  637  n. 
As  to  interests  in  Insurance  Policies,  §  1115,  p.  636  n. 
Outstanding  claims  by  third  parties  on  property  in  hands  of,  does  not  divest 

summary  jurisdiction,  §  1816,  p.  1113. 
Possession  by  gives  jurisdiction  to  bankruptcy  court,  §  1796,  p.  1089. 
As   Principal, — surety  is  creditor   before   default   and   from   date   of   signing, 

§  644,  p.  384. 
Protection  of  from  arrest,  §  463,  p.  303. 
As   Quasi  trustee  for  creditors  before  appointment  of  receiver   or  trustee, 

§  383,  p.  252;  §  1121,  p.  640. 
Referee  may  order  surrender  of  property  held  by,  §  539,  p.  332. 
Reimbursement  of 

None  for  attorney's  fees  paid  in  advance,  §  2024,  p.  1258. 
For  expenses  advanced,  §  2022,  p.  1257. 
None  of  original  deposit,  §  2023,  p.  1257. 
Remains  liable  on  debts  not  dischargeable,  §  2669,  p.  1589. 
Rights  of,  during  pendency  of  petition 
Institution  of  suits  by,  §  1123,  p.  641. 


GENERAL  INDEX.  2077 

BANKRUPT— Continued. 

Retains    dominion   and   power   of   disposal,   unless   receiver   or    marshal 

takes  possession  or  injunction  issues,  §  1128,  p.  643. 
Whether  may  create  liens  on  property,  §  1124,  p.  641. 
Whether   creditors   may   acquire   liens   by   levy   on   property   of,    §    1126, 

p.  642. 
Property  acquired  bj^  independently,  or  by  purchase  on  credit  does  not 

vest  in  trustee,  §'1132,  p.  644. 
Proceeds  of  property  transferable  or  seizible  at  time  of  filing  petition, 

vests  in  trustee^  §  1132,  p.  644. 
Evils  of  old  law  vesting  title  as  of  date  of  filing  petition,  §  1133,  p.  644. 
Bona    fide   transactions   on   present   consideration   not   affected,    §    1134, 

p.  646. 
Property  acquired  by  gift   or   inheritance,  belongs  to  bankrupt,   §   1135, 

p.  647. 
Propert3'  bought  on  credit,   does  not  pass  to  trustee,  §  1135,  p.  647. 
Property  purchased  meantime  with  proceeds  of  property  which  was   in 

existence  at  time  of  filing  petition,  §  1136,  p.  649. 
W'hether  may  be  put  under  general  examination,  §  1543,  p.  919. 
Summary  order  on  where  receiver  appointed,  §  1818,  p.  1114. 
As   Surety,   Guarantor   or    Endorser — his   liability   a  provable   claim  though 

default  not  made  by  principal  until  after  adjudication,  §  643,  p.  383. 
Sworn    denial    of   present   possession    of   assets    by,   not    conclusive,    §    1843, 

p.  1140. 
Undischarged,  incompetent  to  be  trustee,  §  886,  p.  504. 
See  "Voluntary  Bankrupt.'' 
See  "Involuntary  Bankrupt." 

Voluntarily  removing  residence  after  adjudication,  not  entitled  to  reimburse- 
ment, §  1578,  p.  945;  §  2125,  p.  1309. 
Cannot  voluntarily  surrender  discharge,  §  2445,  p.   1477. 
When  begins  and  when  ceases   to  be   a  "bankrupt,"'   §   2497,  p.   1506;   §   453, 

p.  301;  §  473,  p.  306. 
Whether  may  move  to  vacate  discharge,  §  2812,  p.  1646. 
W'hether  Officers  and  directors  of  bankrupt  corporation  entitled  to  witness 

fees,  §  2126,  p.  1309;  §  1527,  p.  914. 
No  Witness  fees  to,  §   1577,  p.  945;  §  2123,  p.   1308. 

BANKRUPTCY 

As  breach  of  contract 

Bankruptcy   of  tenant   no   breach   of   subtenant's   covenant   of   quiet   en- 
joyment, §  666,  p.  406. 
Of  Tenant  does  not  ipso  facto  terminate  lease,  §  981,  p.  548. 
Operating  as  anticipatory  breach,  §  674,  p.  410. 

Operating  by  contract  to  mature  future  installments,  §  675,  p.  412. 
Operating  as  breach  of  continuing  contracts  to  sell   or  buy   or  of   employ- 
ment, §  690,  p.  417. 
Whether  operates  as  "equitable  levy,"  §  1212,  p.  709;  §  1213,  p.  713. 
Not  an  equitable  levy,  §  1214,  p.  714. 

BANKRUPTCY  ACT 

First  English  Bankruptcy  Act,  34  Henry  VIII,  Introd.  (g),  p.  5. 
Not  Intended  to  cover  all  cases  of  Insolvency,  §  21,  p.  37. 
Policy  of  strictest  economy,  Introd.  (m),  p.  14;  §  24,  p.  39;  §  2011,  p.  1247; 
§  2048,  p.  1271;  §  2121,  p.  1308. 


§   1532, 
p.  1338; 


2078  geni;rai.  index. 

BANKRUPTCY  ACT— Continued. 
Sections  construed  or  referred  to 

Sec.  1.— §  645,  p.  387;  §  968,  p.  542;  §  1208,  p.  704;  §  1331,  p.  78' 

p.  915;  §  1614,  p.  981;  §  1653,  p.   1024;  §  2160,  p.   1334;  §  2171 

§  2731,  p.. 1612;  §  2796,  p.  1639. 
Sec.  1   (a),  Subd.   (4).— §  453,  p.  302;  §   1464,  p.  871. 
Sec.  1   (a),  Subd.   (6).— §  80,  p.  80. 
Sec.   1   (a),  Subd.   (7).— §   1695,  p.   1044. 
Sec.  1  (a),  Subd.  (8).— §  28,  p.  45. 
Sec.  1  (a),  Subd.  (9).— §  573,  p.  348;  §  645,  p.  2.87;  §  1308,  p.  766;  §  2160, 

p.   1333;  §   2361,  p.   1433. 
Sec.  1  (a),  Subd.  (10).— §  1133,  p.  645. 
Sec.  1  (a),  Subd.  (11).— §  626,  p.  372;  §  627,  p.  372;  §  776,  p.  460;  §  2160, 

p.  1333;  §  2731,  p.  1610;  §  2745,  p.  1616;  §  2905,  p.  1704. 
Sec.  1   (a),  Subd.   (12).— §  2414,  p.  1459;  §  2729,  p.  1610. 
Sec.  1  (a),  Subd.  (13).— §  955,  p.  536;  §  1558,  p.  935. 
Sec.  1  (a),  Subd.  (15).— §  1343,  p.  787;  §  1344,  p.  788;  §  1349,  p.  789. 
Sec.  1  (a),  Subd.  (19).— §  171,  p.  145;  §  480,  p.  309;  §  690,  p.  418;  §  2126, 

p.  1309. 
Sec.   1,  Subd.    (23).— §  748,  p.   445. 

Sec.  1,  Subd.  (25).— §  965,  p.  540;  §  1330,  p.  779;  §  1332,  p.  780. 
Sec.  1  (a),  Subd.  (27).— §  47,  p.  60. 
Sec.  2.— §  431,  p.  276;  §  858,  p.  491;  §  1616,  p.  983;  §  1652,  p.  1021;  §  1653, 

p.  1024;  §  1653,  p.  1025;  §  1797,  p.  1094;  §  1797,  p.  1097;  §  1836,  p.  1129;. 

§  1897,  p.  1186;  §  1901,  p.  1189;  §  1913,  p.  1193;  §  1965,  p.  1224;  §  2626, 

p.  1566;  §  2660,  p.  1579;  §  2864,  p.  1680;  §  2875,  p.  1687;  §  2912,  p.  1707; 

§  2986,  p.  1734. 
Sec.  2,  Subd.  (l).— §  29,  p.  45;  §  30,  p.  51;  §  34,  p.  54. 
Sec.  2,  Subd.  (2).— §  811,  p.  473. 
Sec.   2,   Subd.    (3).— §   377,   pp.   248  and  249;   §   384,  p.   252;   §   385,  p.   253; 

§'1941,  p.  1211;  §  2119,  p.  1307;  §  2132,  p.  1310. 
Sec.  2,  Subd.   (5).— §   385,  p.  253;   §  387,  p.   255;   §   377,  p.   249;   §   1135,  p.^ 

647;  §  2036,  p.  1262;  §  2115,  p.  1303;  §  2116,  p.  1304;  §  2119,  p.  1307. 
Sec.  2,  Subd.  (6).— §  1653,  p.  1025;  §  1682,  p.  1035;  §  1796,  p.  1090. 
Sec.  2,  Subd.   (7).— §  760,  p.  453;  §  907,  p.  519;  §  1115,  p.   637;  §   1580,  p. 

948;  §  1653,  p.  1025;  §  1654,  p.  1028;  §  1796,  p.  1090;  §  1797,  p.  1092;  § 

1797,  p.  1097;  §   1819,  p.  1116;   §  2219,  p.  1361;   §  2869,  p.   1683;   §   2875, 

p.  1688;  §  2883,  p.  1693;  §  2902,  p.  1703. 
Sec.  2,  Subd.  (8).— §  2298,  p.  1401;  §  2300,  p.  1401. 
Sec.  2,  Subd.   (9).— §  2356,  p.  1430. 

Sec.  2,  Subd.   (10).— §  2839,  p.  1658;  §  2862,  p.  1673;  §  3001,  p.  1738. 
Sec.  2,  Subd.   (11).— §  1026,  p.  577;  §  1043,  p.  594;  §  2905,  p.   1704. 
Sec.  2,  Subd.   (14).— §  374,  p.  247. 
Sec.  2,  Subd.   (15).— §  760,  p.  453;  §  1115,  p.  637;  §   1653,  p.   1025;  §  2697, 

p.  1599. 
Sec.  2,  Subd.   (17).— §  941,  p.  525;  §  944,  p.  525. 

Sec.  2,  Subd.  (IB).— §  2001,  p.  1244;  §  2658,  p.  1578;  §  2660,  p.  1579. 
Sec.  3.— §  1381,  p.  809;  §  1383,  p.  810;  §  1383,  p.  812;  §  1543,  p.  921;  § 

1603,  p.  970;  §  1629,  p.  996. 
Sec.  3  (a).— §  1379,  p.  805. 

Sec.  3,  Subd.  (a)  (1).— §  103,  p.  103;  §  104,  p.  104;  §  177,  p.  148. 
Sec.  3,  Subd.  (a)  (2).— §  113,  p.  108;  §  117,  p.  110;  §  120,  p.  Ill;  §  175, 

p.  148. 


GEXERAI.  IXDEX.  2079 


123;   §   390, 


BANKRUPTCY  ACT— Continued. 

Sec.  3,   Subd.   (a)    (3).— §  133,  p.  118;  §  137,  p.  120;  §   141, 

p.  256;  §  1449,  p.  859. 
Sec.  3,  Subd.  (a)  (4).— §  145,  p.  128;  §  150,  p.  130;  §  151,  p.  132. 
Sec.  3,  Subd.  (a)  (5).— §  161,  p.  138. 
Sec.  3,  Subd.  (b).— §  104,  p.  104;  §  127,  p.  113;  §  182,  p.  152;  §  185,  p. 

153;  §  1133,  p.  645;  §  1379,  p.  805;  §  1381,  p.  808;  §  1381,  p.  809;  §  1381, 

p.  810. 
Sec.  3,  Subd.  (c).— §  176,  p.  148;  §  177,  p.  149. 
Sec.  3,  Subd.  (d).— §  172,  p.  146;  §  179,  p.  150;  §  181,  p.  151. 
Sec.  3,  Subd.  (e).— §  177,  p.  149;  §  336,  p.  231;  §  346,  p.  234;  §  348,  p.  235; 

§  397,  p.  258;  §  1133,  p.  645;  §  1836,  p.  1129;  §  2018,  p.  1255. 
Sec.  4,  Subd.  (a).— §  37,  p.  55;  §  1629,  p.  996;  §  2171,  p,  1338;  §  2796, 

p.  1639. 
Sec.  4,  Subd.  (b).— §  46,  p.  59;  §  48,  p.  60;  §  77,  p.  78;  §  79,  p.  79;  §  80, 

p.  80;  §  413,  p.  267;  §  424,  p.  273;  §  1510,  p.  902;  §  1628,  p.  995;  § 

2231,  p.  1365. 
Sec.  5.— §  1303,  p.  765;  §  2239,  p.  1370;  §  2270,  p.  1389;  §  2795,  p.  1636; 

§  2796,  p.  1639;  §  2805,  p.  1643. 
Sec.  5.  Subd.  (a).— §  39,  p.  56;  §  56,  p.  64. 
Sec.  5  (b).— §  866,  p.  497;  §  2233,  p.  1366. 
Sec.  5,  Subd.  (c).— §  36,  p.  55;  §  2233,  p.  1367. 
Sec.  5  (d).— §  2234,  p.  1367. 
Sec.  5  (e).— §  2234,  p.  1367. 

Sec.  5  (f).— §  2238,  p.  1368;  §  2238,  p.  1370;  §  2271,  p.  1390. 
Sec.  5  (g).— §  2238,  p.  1369;  §  2271,  p.  1390;  §  2796,  p.  1638;  §  2796,  p. 

1639. 
Sec.  5  (h).— §  2232,  p.  1366;  §  2251,  p.  4374;  §  2795,  p.  1637;  §  2796,  p. 

1638;  §  2797,  p.  1641. 
Sec.  6.— §  1003,  p.  557;  §  1003,  p.  558;  §  1022,  p.  570;  §  1038,  p.  592;  § 

1133,  p.  645;  §  2912,  p.  1707;  §  2920,  p.  1710. 
Sec.  6  (c).— §  2231,  p.  1365. 
Sec.  7.— §  1048,  p.  602;  §  1089,  p.  616;  §  1115,  p.  636;  §  1532,  p.  916;  § 

1979,  p.  1229;  §  2077,  p.  1286;  §  2078,  p.  1287;  §  2124,  p.  1309;  §  2394. 

p.  1447;  §  2469,  p.  1493. 
Sec.  7  (a),  Subd.  (1).— §  453,  p.  302;  §  463,  p.  304;  §  2455,  p.  1487. 
Sec.  7  (a),  Subd.  (2).— §  458,  p.  303. 
Sec.  7  (a),  Subd.  (3).— §  447,  p.  292;  §  459,  p.  303. 
Sec.  7  (a),  Subd.  (4).— §  460,  p.  303;  §  1115,  p.  637. 

Sec.  7  (a),  Subd.  (5).— §  460,  p.  303;  §  1114,  p.  636;  §  1835,  p.  1128. 
Sec.  7  (a),  Subd.  (6).— §  459,  p.  303. 
Sec.  7  (a),  Subd.  (7).— §  459,  p.  303;  §  819,  p.  476. 
Sec.  7  (a),  Subd.  (8).— §  461,  p.  303;  §  477,  p.  308;  §  481,  p.  309;  §  482,  p. 

309;  §  1048,  p.  600;  §  1049,  p.  603;  §  1051,  p.  603;  §  1022,  p.  570;  § 

2538,  p.  1527. 
Sec.  7  (a),  Subd.  (9).— §  462,  p.  303;-  §  1525,  p.  912;  §  1527,  p.  914;  § 

1538,  p.  918;  §  1556,  p.  931;  §  1557,  p.  932;  §  1558,  p.  933;  §  1577,  p. 

945;  §  2124,  p.  1309;  §  2324,  p.  1412. 
Sec.  8  (a).— §  99,  p.  95;  §  101,  p.  99;  §  1117,  p.  639;  §  2420,  p.  1464;  § 

2939,  p.  1717. 
Sec.  9  (a).— §  463,  p.  304. 
Sec.  9,  Subd.  (b).— §  371,  p.  246;  §  373,  p.  246;  §  375,  p.  247;  §  1133,  p. 


2080  •  GENERAL  INDEX. 

BANKRUPTCY  ACT— Continued. 


lUfl^^Y  AUi — Uontinued. 
Sec.  10  (a).— §  374,  p.  247. 
Sec.  11  (a).— §1103,  p.  628;  §  1133,  p.  645;  §  1582,  p.  952;  §  2688.  p. 

1596;  §  2690,p.  1597;  §  2695,  p.  1598;  §  2695,  p.  1599;  §  2696,  p.  1599; 

§  2699,  p.  1600;  §  2703,  p.  1602. 


§  2699,  p.  1600;  §  2703,  p.  1602. 
Sec.  11  (b).— §  1645,  p.  1012;  §  1648,  p.  1013. 
Sec.  11  (c).— §  899,  p.  515;  §  1640,  p.  1011;  §  1641. 
Sec.  11  (d).— §  1790,  p.  1083;  §  2307,  p.  1403. 
Sec.  12  (a).— §  1405,  p.  834;  §  2349,  p.  1426;  §  2353,  p.  1428;  §  2355,  p. 

1429;  §  2356,  p.  1430;  §  2358,  p.  1431;  §  2359,  p.  1432;  §  2361,  p.  1433; 

§  2363,  p.  1434. 
Sec.  12  (b).— §  1532,  p.  915;  §  1941,  p.  1211;  §  2360,  p.  1432;  §  2361,  p. 

1432;  §  2365,  p.  1434;  §  2381,  p.  1440;  §  2384,  p.  1441;  §  2388,  p.  1444; 

§  2394,  p.  1447. 
Sec.  12  (c).— §  2372,  p.  1436;  §  2375,  p.  1438. 
Sec.  12  (d).— §  2387,  p.  1443. 
Sec.  12  (e).— §  2345,  p.  1424;  §  2356,  p.  1430;  §  2389.  p.  1445;  §  2390,  p. 

1445;  §  2391,  p.  1445;  §  2394,  p.  1447;  §  2396,  p.  1449. 
Sec.  13.— §  2400,  p.  1451;  §  2404,  p.  1452. 
Sec.  14  (a).— §  1840,  p.  1134;  §  2349,  p.  1426;  §  2418,  p.  1464;  §  2420,  p. 

1465;  §  2423,  p.  1465;  §  2424,  p.  1465;  §  2427,  p.  1467;  §  2459,  p.  1488; 

§  2468,  p.  1491;  §  2468,  p.  1492;  §  2469,  p.  1493;  §  2477,  p.  1495;  § 

2502,  p.  1507;  §  2608,  p.  1560;  §  2626,  p.  1566;  §  2655,  p.  1577;  §  2662, 

p.  1585;  §  2751,  p.  1619. 
Sec.  14  (b).— §  2387,  p.  1443;  §  2420,  p.  1464;  §  2447,  p.  1485;  §  2469.  p. 

1492;  §  2487,  p.  1503;  §  2510,  p.  1511;  §  2523.  p.  1523;  §  2544,  p.  1532; 

§  2553,  p.  1539;  §  2556,  p.  1540;  §  2626,  p.  1566;  §  2636,  p.  1571;  §  2660, 

p.  1579. 
Sec.  14  (b),  Subd.  (5).— §  2571,  p.  1544;  §  2572,  p.  1546. 
Sec.  14  (b),  Subd.  (6).— §  2580,  p.  1548;  §  2581,  p.  1549. 
Sec.  14  (c).— §  2349,  p.  1426;  §  2556,  p.  1540. 
Sec.  15.— §  2481,  p.  1499;  §  2806,  p.  1644;  §  2807.  p.  1645;  §  2813,  p. 

1646;  §  2815,  p.  1647;  §  2Sl6,  p.  1648;  §  2819,  p.  1649;  §  2820.  p.  1649. 
Sec.  16  (a).— §  662,  p.  403;  §  1510,  p.  902;  §  2795,  p.  1637;  §  2796,  p.  1638. 
Sec.  17  (a).— §  1448,  p.  858;  §  1449,  p.  859;  §  1455.  p.  864;  §  2160,  p. 

1333;  §  2160,  p.  1334;  §  2438,  p.  1475;  §  2468,  p.  1491;  §  2470,  p.  1494; 

§  2662.  p.  1584;  §  2662,  p.  1585;  §  2667,  p.  1587;  §  2681,  p.  1594;  § 

2713,  p.  1606;  §  2731,  p.  1610;  §  2743,  p.  1616;  §  2745,  p.  1616;  §  2747, 

p.  1617;  §  2751,  p.  1619;  §  2754,  p.  1620. 
Sec.  17,  Subd.  (a)  (2).— §  1449,  p.  859;  §  2747,  p.  1617;  §  2754,  p.  1619;  § 

2757,  p.  1621;  §  2759,  p.  1621;  §  2785,  p.  1630. 
Sec.  17  (a),  Subd.  (3).— §  2761,  p.  1622;  §  2777,  p.  1627. 
Sec.  17  (a),  Subd.  (4).— §  2783,  p.  1628. 
Sec.  17  (b).— §  2550,  p.  1537. 
Sec.  18.— §  425,  p.  274;  §  437,  p.  2&1. 
Sec.  18,  Subd.  (a).— §  307,  p.  219;  §  308,  p.  220. 
Sec.  18,  Subd.  (b).— §  317,  p.  222;  §  444,  p.  286;  §  447,  p.  202. 
Sec.  18,  Subd.  (c).— §  26,  p.  41;  §  447,  p.  292;  §  2430,  p.  1469;  §  2584,  p. 

1549;  §  2584,  p.  1550. 
Sec.  18,  Subd.  (d).— §  403,  p.  263;  §  423,  p.  273;  §  447,  p.  292;  §  2890,  p. 

1698. 
Sec.  18,  Subd.  (e).— §  424,  p.  273;  §  2890,  p.  1698. 
Sec.  18,  Subd.  (f).— §  425,  p.  273. 


GENERAL,  INDEX.  2081 

« 

BANKRUPTCY  ACT— Continued. 

Sec.    18,    Subd.    (g).— §   195,   p.    160;    §    196,   p.    160;    §    419,   p.    270;    §    2890, 

p.  1698. 
Sec.  19,  Subd.  (a).— §  405,  p.  264;  §  406,  p.  264;  §  411,  p.  266;  §  2881,  v. 

1690;  §  2894,  p.  1699;  §  2894,  p.  1700. 
Sec.  20.— §  614,  p.  365. 
Sec.  21.— §  1838,  p.  1131. 
Sec.  21  (a).— §  462,  p.  303;  §  »525,  p.  912;  §  1527,  p.  913;  §  1528,  p. 

914;  §  1536,  p.  917;  §  1543,  p.  920;  §  1543,  p.  921;  §  1547,  p.  922;  § 

1565,  p.  940;  §  1567,  p.  941;  §  1570,  p.  943;  §  1839,  p.  1133. 
Sec.  21  (e).— §  1215,  p.  718. 
Sec.  21  (f).— §  2684,  p.  1595. 
Sec.  21  (g).— §  2347,  p.  142 


tiec.  JJi  {g). — s  ^34V,  p.  14:^4. 

Sec.  22  (a).— §  519,  p.  323;  §  521,  p.  324. 

Sec.  22  (a),  Subd.  (2).— §  522,  p.  324. 

Sec.  23.— §  1580,  p.  948;  §  1652,  p.  1021;  §  1652,  p.  1022;  §  1653,  p.  1025; 

§  1653,  p.  1026;  §  1696,  p.  1046;  §  1796,  p.  1089;  §  1796,  p.  1090;  §  1811, 

p.  1110;  §  1885,  p.  1178;  §  2864,  p.  1678;  §  2864,  p.  1680;  §  2864,  p.  1681; 

§  2874,  p.  1687;  §  3025,  p.  1749. 
Sec.  23  (a).— §  1653,  p.  1027;  §  1684,  p.  1036;  §  1686,  p.  1037;  §  1718,  p. 

1060. 
Sec.  23  Cb).— §  1477,  p.  879;  §  1652,  p.  1021;  §  1653,  p.  1027;  §  1684,  p. 

1036;  §  1687,  p.  1038;  §  1688,  p.  1039;  §  1688,  p.  1040;  §  1689,  p.  1040; 

§  1689,  p.  1041;  §  1696,  p.  1045;  §  1696,  p.  1046;  §  1716,  p.  1058;  §  2875, 

p.  1688. 
Sec.  24  (a).— §  1790,  p.  10S9;  §  2864,  p.  1678;  §  2864,  p.  1679;  §  2864,  p. 

1680;  §  2864,  p.  1681;  §  2864,  p.  1682;  §  2869,  p.  1684;  §  2871,  p.  1685; 

§  2875,  p.  1687;  §  2875,  p.  1688;  §  2877,  p.  1689;  §  2881,  p.  1690;  §  2882, 

p.  1691;  §  2882,  p.  1692;  §  2882,  p.  1693;  §  2883,  p.  1693;  §  2884,  p.  1695; 

§  2887,  p.  1696;  §  2888,  p.  1697;  §  2893,  p.  1699;  §  2902,  p.  1703;  §  2907, 

p.  1704;  §  2911,  p.  1706. 
Sec.  24  (a).— §  2912,  p.  1706;  §  2912,  p.  1707;  §  2914,  p.  1708;  §  2920,  p. 

1710;  §  2920,  p.  1711;  §  2924,  p.  1713;  §  2925,  p.  1713;  §  2926,  p.  1714;  § 

2927,  p.  1714;  §  2941,  p.  1717;  §  2941,  p.  1718;  §  2941,  p.  1719;  §  2942, 

p.  1720;  §  3013,  p.  1744;  §  3016,  p.  1745;  §  3017,  p.  1745;  §  3025,  p.  1749. 
Sec.  24  (b).— §  1109,  p.  634;  §  1110,  p.  634;  §  2864,  p.  1679;  §  2864,  p. 

1681;  §  2870,  p.,  1684;  §  2871,  p.  1685;  §  2874,  p.  1686;  §  2875,  p.  1688; 

§  2876,  p.  1688;  §2882,  p.  1691;  §2882,  p.  1692;  §  2883,  p.  1693;  §  2884,  p. 

1695;  §  2887,  p.  1695;  §  2887,  p.  1696;  §  2888,  p.  1697;  §  2901,  p.  1702;  § 

2902,  p.  1703;  §  2911,  p.  1706;  §  2914,  p.  1708;  §  2915,  p.  1708;  §  2920,  p. 

1711 


2  Rem  B— 56 


2082  GENKRAL  INDEX. 


ri5; 

§  2941,  p.  1719;  §  2942,  p.  1720. 
Sec.  25  (a).— §  2944,  p.  1721;  §  2959,  p.  1725;  §  2969,  p.  1729;  § 

1733;  §  2982,  p.  1733;  §  2985,  p.  1733;  §  2986,  p.  1734;  §  2992,  ^.  ^.„„, 

§  2999,  p.  1737;  §  3025,  p.  1749. 
Sec.  25  (a),  Subd.  (3).— §  2076,  p.  1286;  §  2902,  p.  1703. 
Sec.  25  (b),  Subd.  (1).— §  2910,  p.  1705;  §  3013,  p.  1744;  §  3014,  p. 

1745;  §  3025,  p.  1749. 

f-r-      9A     fh")      .Cliihrl      To^  S    QAI  "^      r.      17^^^-     8    ■^00.'^      r.      17^0 


p.  1749. 

§  3024,  p.  1749. 


1745;  §  3025,  p.  1749. 
Sec.  25  (b),  Subd.  (2).— §  3015,  p.  1745;  §  3025,  p.  1 
Sec.  25  (c).— §  2980,  p.  1732. 

Sec.  25,  Subd.  (d).— §  2865,  p.  1082;  §  3013,  p.  1744; 
Sec.  26  (a).— §  922,  p.  522. 
Sec.  26  (b).— §  924,  p.  523. 
Sec.  26  (c).— §  925,  p.  523. 
Sec.  27  (a).— §  926,  p.  523. 
Sec.  29.— §  1840,  p.  1134;  §  2017,  p.  1253;  §  2316,  p.  1409;  §  2326,  p. 

1412;  §  2477,  p.  1495;  §  2655,  p.  1577.   , 
Sec.  29,  Subd.  (a).— §  2316,  p.  1409;  §  2317,  p.  1410;  §  2502,  p.  1507;  § 

2510,  p.  1511;  §  2551,  p.  1538. 
Sec.  29  (b),  Subd.  (l).— §  2316,  p.  1409;  §  2326,  p.  1413;  §  2487,  p. 

1503;  §  2488,  p.  1503;  §  2490,  p.  1504;  §  2497,  p.  1506;  §  2498,  p.  1506; 

§  2499,  p.  1506;  §  2514,  p.  1514;  §  2596,  p.  1553. 
Sec.  29  (b),  Subd.  (2).— §  2316,  p.  1409;  §  2523,  p.  1523;  §  2538,  p.  1527; 

§  2541,  p.  1530. 
Sec.  29  (b),  Subd.  (3).— §  2316,  p.  1409. 
Sec.  29  (b),  Subd.  (4).— §  1133,  p.  645;  §  2316,  p.  1409. 
Sec.  29  (b),  Subd.  (5).— §  2316,  p.  1409. 
Sec.  29,  Subd.  (c).— §  2316,  p.  1409. 
Sec.  29  (c),  Subd.  (1).— §  2316,  p.  1410. 
Sec.  29  (c),  Subd.  (2).— §  2316,  p.  1410. 
Sec.  29  (c),  Subd.  (3).— §  2316,  p.  1410. 
Sec.  29  (d).— §  2316,  p.  1410. 
Sec.  30  (a).— §  25,  p.  40;  §  1133,  p.  645. 
Sec.  31  (a).— §  189,  p.  154;  §  1375,  p.  803;  §  1454,  p.  863. 
Sec.  33  (a)-— §  497,  p.  319. 

Sec.  34  (a),  Subd.  (2).— §  500,  p.  319;  §  501,  p.  320. 
Sec.  35  (a).— §  502,  p.  320. 
Sec.  35  (a),  Subd.  (4).— §  501,  p.  320. 
Sec.  36.— §  523,  p.  325;  §  592,  p.  354. 
Sec.  36  (a).— §  503,  p.  320. 
Sec.  37.— §  501,  p.  320;  §  1133,  p.  645. 
Sec.  38  (a).— §  425,  p.-  273;  §  1580,  p.  948;  §  2335,  p.  1418;  §  2626,  p. 

1566;  §  2660,  p.  1579;  §  2839,  p.  1658;  §  2839,  p.  1659. 


1566;  §  2660,  p.  1579;  §  2839,  p.  1658;  §  2839,  p.  1659. 
Sec.  38  (a),  Subd.  (1).— §  524,  p.  328. 

Sec.  38  (a),  Subd.  (3).— §  337,  p.  232;  §  379,  p.  251;  §  525,  p.  o^o. 
Sec.  38  (a),  Subd.  (4).— §  379,  p.  251;  §  425,  p.  274;  §  2373,  p.  1436;  § 

2391,  p.  1446;  §  2625,  p.  1566;  §  2626,  p.  1566;  §  2660,  p.  1579;  §  2820,  p. 

1649. 
Sec.  38  (a),  Subd.  (5).— §  1579,  p.  945;  §  2006,  p.  1245;  §  2007,  p.  1246. 


GENERAI,  INDEX.  2083 

p.  1731. 


BANKRUPTCY  ACT— Continued. 

Sec.  39.— §  2626,  p.  1566;  §  2660,  p.  1579;  §  2840,  p.  1660;  §  2974 

Sec.   39    (a),   Subd.    (l).— §   507,  p.   321. 

Sec.   39   (a),   Subd.   (2).— §  479,  p.  309;   §  508,  p.  321;  §  1068,  p.   .._. 

Sec.   39    (a),   Subd.    (3).— §   509,   p.   322. 

Sec.  39   (a),  Subd.    (5).— §  511,  p.  322;   §  2855,  p.   1666;  §  2856,  p.  1667;  § 

2857,    p.    1668;    §    2974,    p.    1730. 
Sec.  39   (a),   Subd.    (6).— §   512,  p.   322 
Sec.   39    (a),   Subd.    (7).— §   513,   p.   32 
Sec.  39   (a),  Subd.   (8).— §  al4,  p.  322 
Sec.  39   (a),  Subd.  (9).— §  515,  p.  322; 


p.    322. 

2856,  p.  1667. 


bee.  39   (a),  bubd.  (.9;.— §  515,  p.  322;  §  2856,  p 

Sec.  39  (a),  Subd.   (10).— §  516,  p.  323. 

Sec.   39    (b),   Subd.    (l).— §   504,  p.   321. 

Sec.   39    (b),   Subd.    (3).— §  505,  p.   321;   §   1955, 

Sec.  40.— §  2036,  p.  1263;  §  2103,  p.  1300;  §  2185 


p.     1218. 


c.  40.— §  2036,  p.  1263;  §  2103,  p.  1300;  §  2188,  p.  1345. 

c.  40,  Subd.  (a).— §  285,  p.  206;  §  2102,  p.  1299;  §  2106,  p.  1301;  §  2108. 

D.  1301. 


Sec 

p.  1301. 

Sec.  40  (c).— §  526,  p.  329. 

Sec.  41.— §  2330,  p.  1415;  §  2839,  p.  1659. 


p.  498;  § 
p.  526; 


Sec.    41.— §   2330,   p.    1415;   §   2839,   p.    U 

Sec.   41   (a),   Subd.   (1).— §  2334,  p.  1417 

Sec.   41    (a),   Subd.    (2).— §   2334,   p.   141 

Sec.  41   (a),  Subd.   (3).— §  2334,  p.   1417. 

Sec.   41    (a),   Subd.    (4).— §  2334,  p.   1418. 

Sec.  41  (b).— §  2330,  p.  1415;  §  2336,  p.  1418;  §  2338,  p.  1419. 

Sec.  42.— §  560,  p.  339. 

Sec.  43.— §  1133,  p.  645. 

Sec.    48.— §    2188,   p.    1345. 

Sec.  44   (a).— §  584,  p.  351;  §  862,  p.  496;  §  869,  p.  498;  §  870,  p 

875,  p.   500;   §   873,  p.    500;   §   895,  p.   510;   §   895,   p.   5l'l;   §  948, 

§  949,  p.  526;  §  1133,  p.  645;  §  2314,  p.  1405. 
Sec.   45.— §   879,   p.   503;   §   881,   p.   503. 
'Sec.  46   (a).— §  947,  p.  526. 

Sec.  47   (a),  Subd.   (l).— §  906,  p.   518;   §  907,  p.   519. 
Sec.  47    (a),   Subd.    (2).— §  908,  p.   519. 
Sec.    47    (a),    Subd.    (3).— §   909,    p.    519. 
Sec.   47    (a),   Subd.    (4).— §   912,   p.   520. 
Sec.   47    (a),   Subd.    (5).— §   914,   p.   520. 
Sec.  47  (a),  Subd.  (6).— §  916,  p.  521. 

Sec.  47   (a),   Subd.    (7).— §  917,  p.   521;  §   2297,  p.  14011. 
Sec.  47   (a),  Subd.    (8).— §   917,  p.   521;   §  2297,   p.   1401. 
Sec.  47  (a),  Subd.   (9).— §  918,  p.  522. 
Sec.  47   (a),   Subd.   (lO).— §  917,  p.   521;   §   2285,  p.   1397. 
Sec.   47    (a),   Subd.    (11).— §   1022,  p.   570;   §   1048,  p.   601;   §   1074,   p.   611; 

§  1075,   p.   612. 
Sec.   47   (b).— §  874,  p.   500;  §  876,  p.   500. 
Sec.   47    (c).— §   2108,  p.   1301. 

Sec.   48.— §  2036,  p.   1263;   §  2103,  p.   1300;   §   2119,  p.   1307. 
Sec.  48,  Subd.  (a).— §  285,  p.  206;  §  2110,  p.  1302;  §  2116,  p.  1304. 
Sec.  48   (b).— §  2114,  p.  1303. 
Sec.  48   (c).— §  2113,  p.  1303. 
Sec.  49   (a). — §  915,  p.  520. 
Sec.   50   (a).— §   503,   p.   320. 
Sec.  50,  Subd.   (a)    (2).— §  2J 


287,   p.   206. 


2084  GENERAL  INDEX. 

BANKRUPTCY  ACT— Continued. 
Sec.   50   (b).— §  877,  p.  501. 
Sec.   50    (c).— §  877,  p.   501. 
Sec.  50   (e). — §  877,  p.  501. 
Sec.  50  (f).— §  877,  p.  501. 
Sec.  50   (g).— §  877,  p.   501. 
Sec.  50   (k).— §  877,  p.  501. 
Sec.   51.— §   2023,  p.   1257;  §   2036,  p.  12G3. 
Sec.   52. — §  285,  p.   206. 
Sec.   52,   Subd.    (b).— §   2129,  p.   1310. 
Sec.   54.— §  1133,   p.   645. 
Sec.  55  (a).— §  591,  p.  354. 
Sec.  56.— §  584,  p.  351;  §  1532 


p.  915. 


Sec.  56,  Subd.  (a).— §  205,  p.  169;  §  572,  p.  347. 

Sec.  56  (b).— §  576,  p.  349;  §  634,  p.  376;  §  1387,  p.  »is. 

See.  57.— §  729,  p.  438;  §  845,  p.  488;  §  1494,  p.  891;  §  2139,  p.  1318;  § 

2163,  p.  1335;  §  2223,  p.  1363;  §  2394,  p.  1447;  §  2395,  p.  1449. 
Sec.  57  (a).— §  447,  p.  291;  §  594,  p.  355;  §  594,  p.  356;  §  603,  p.  359;  § 

614, 


§ 


57.— §  729,  p.  438;  §  845,  p.  488;  §  1494,  p.  891;  §  2139,  p. 

63,  p.  1335;  §  2223,  p.  1363;  §  2394,  p.  1447;  §  2395,  p.  1449. 

57  (a).— §  447,  p.  291;  §  594,  p.  355;  §  594,  p.  356;  §  603,  f 

W..4,  p.  364;  §  720,  p.  435;  §  844,  p.  486;  §  2139,  p.  1319. 
Sec.  57  (b).— §  602,  p.  358;  §  844,  p.  486. 
Sec.  57  (c).— §  447,  p.  291;  §  577,  p.  349;  §  2358.  p.  1431. 
Sec.  57  (d).— §  447,  p.  292;  §  813.  p.  474;  §  816,  p.  475;  §  818,  p.  475; 

819,  p.  475;  §  844,  p.  486. 
Sec.  57  (e).— §  634,  p.  376;  §  751.  p.  446;  §  763,  p.  454;  §  767,  p.  455;  § 

1314,  p.  772;  §  1387,  p.  818;  §  2139,  p.  1319. 
Sec.  57  (£).-§  844,  p.  486;  §  1314,  p.  772.  . 
Sec.  57,  Subd.  (g).— §  119,  p.  110;  §  205,  p.  169;  §  578,  p.  349;  §  632,  p. 

376;  §  768,  p.  456;  §  769,  p.  456;  §  1314,  p.  772;  §  1329,  p.  779;  §  1401,  p. 

829;  §  1421,  p.  843;  §  1421,  p.  844. 
Sec.  57  (h).— §  751,  p.  446;  §  755.  p.  448;  §  759,  p.  450;  §  760,  p.  452;  § 

760,  p.  453;  §  762,  p.  454;  §  767,  p.  455;  §  1314,  p.  772;  §  1387,  p. 

818. 
Sec.  57  (i).— §  611,  p.  362;  §  61S,  p.  364;  §  644,  p.  386;  §  645,  p.  386;  §  645, 

p.  388;  §  1516,  p.  904. 
Sec.  57  (k). — §  447,  p.  291;  §  817,  p.  475;  §  819,  p.  475;  §  838,  p.  483;  § 

861,  p.  493. 
Sec.  57  (n).— §  7a7,   p.  429;  §  717,  p.  430;  §  717,  p.  432;  §  719,  p.  434; 

§  719,  p.  435;  §  724,  p.  437;  §  730,  p.  438;  §  729,  p.  438;  §  730,  p.  439; 

§  731,  p.  439;  ^  1178,  p.  690;  §  1614,  p.  981;  §  2161,  p.  1334;  §  2358, 

p.  1431. 
Sec.  58.— §  928,  p.  523;  §  934,  p.  524;  §  1706,  p.  1054;  §  1869,  p.  1162; 

§  1942,  p.  1212. 
Sec.  58.  Subd.  (a).— §  419,  p.  269;  §  565,  p.  343;  1535,  p.  917;  §  1938,  p. 

1209;  §  2053,  p.  1275;  §  2289,  p.  1398;  §  2296,  p.  1401. 
Sec.  58  (a),  Subd.  (2).— §  2371,  p.  1436;  §  2431,  p.  1469. 
Sec.  58  (a),  Subd.  (4).— §  1944,  p.  1213. 
Sec.  58  (a),  Subd.  (5).— §  2215,  p.  1360;  §  2289,  p.  1398. 
Sec.  58  (a),  Subd.  (6).— §  2296,  p.  1401. 
Sec.  58  (b).— §  568,  p.  344;  §  569,  p.  344. 
Sec.  59,  Subd.  (b).— §  197,  p.  163;  §  198,  p.  163;  §  220,  p.  175;  §  227,  p. 

179;  §  240,  p.  186;  §  444,  p.  284;  §  672,  p.  407. 
Sec.  59,  Subd.  (c).— §  190,  p.  157;  §  283,  p.  205. 
Sec.  59,  Subd.  (d).— §  204,  p.  197;  §  207,  p.  170;  §  672,  p.  407. 


CEXERAL  IXDEX.  2085 


BANKRUPTCY  ACT— Continued. 

Qp^      r,Q       C.-KH       fp^  S    1QQ      1 


(Uir-TUY   AUi — continued. 

Sec.  59,  Subd.   (e).— §  199,  p.  164;   §  215,  p.  174. 
Sec.  59,  Subd.   (f).— §  210,  p.  l72;  §  317,  p.  222;  §  672,  p.  407. 
Sec.   59,   Subd.    (g).— §   419,   p.   269. 
Sec.  60.— §  1138,  p.  665;  §   1303,  p.  766;  §   1314,  p.  770;   §  1385,  p.  816;   § 

1395,  p.   823;   §   1494,  p.   891;   §   1603,  p.   970;   §  1629,   p.  996;   §   1652,  p. 

1021;  §  2086,  p.  1290;  §  2087,  p.   1292;  §  2097,  p.  1298;   §  2205,  p.   1357; 

§  2223,  p.  1363. 
Sec.   60,  Subd.    (a).— §   119,  p.   110;   §   123,  p.   Ill;   §   126,  p.  112;  §   127,  p. 

113;      §     128,    p.     113;      §     205,     p.     169;      §     446,     p.     291;      §     1126,     p. 

642;  §  1137,  p.  662;  §  1179,  p.  690;  §  1277,  p.  756;  §  1282,  p.  757;  §  1294, 

p.  760;  §  1295,  p.  760;  §  1296,  p.  761;  §  1308,  p.  766;  §  1314,  p.  772; 

§  1368,  p.  794;  §  1377,  p.  803;  §  1379,  p.  804;  §  1379,  p.  805;  §  1379,  p' 

806;   §  1381,  p.  808;   §  1381,  p.  809;   §  1381,  p.  810;   §  1383, 

p.  811;  §  1383,  p.  812;  §  1384,  p.  8!l3;  §  1384,  p.  815;  §  1385,  p.  816; 

§  1416,  p.  839;  §  1452,  p.  861;  §  1453,  p.  862;  §  1477,  p.  880. 
Sec.  60,  Subd.  (b).— §  205,  p.  169;  §  395,  p.  257;  §  445,  p.  290;  §  1133,  p. 

645;  §  1137,  p.  662;  §  1179,  p.  690;  §  1329,  p.  779;  §  1381,  p.  809;  §  1383, 

p.  812;  §  1395,  p.  822;  §  1401,  p.  829;  §  1405,  p.  834;  §  1411,  p.  838; 

§  1477,  p.  879;  §  1477,  p.  880;  §  1497,  p.  895;  §  1580,  p.  948;  §  1688,  p. 

1039;  §  1688,  p.  1040;  §  1689,  p.  1040;  §  2874,  p.  1686;  §  2927,  p.  1714. 
Sec.  60,  Subd.  (c).— §  1416,  p.  839;  §  1419,  p.  841;  §  1422,  p.  844;  § 

1423,  p.  844. 
Sec.  60  (d).^§  1504,  p.  900;  §  2090,  p.  1294;  §  2095,  p.  1296;  §  2096,  p. 

1296;  §  2097,  p.  1296;  §  2094,  p.  1296;  §  2097,  p.  1297;  §  2907,  p.  1705. 
Sec.  61.— §  909,  p.  519. 
Sec.  62.— §  517,  p.  323;  §  2291,  p.  1398. 
Sec.  62  (a).— §  2028,  p.  1259;  §  2029,  p.  125^ 
Sec.  63.— §  645,  p.  387;  §  749,  p.  446;  §  776,  p. 

474;  §  2160,  p.  1333;  §  2731,  p.  1612. 


Sec.  63  (a),  Subd.  (4).— §  694,  p.  420. 

Sec.    63    (a),    Subd.    (5).— §    672,    p.    407;    §    682,    p.    414;    §    695,    p.    421;    § 

1133,  p.  645;  §   1448,  p.   858;  §   1449,  p.   859;   §   1647,  p.   1013;    §  2704,  p. 

1603;    §    2713,    p.  \1606. 
Sec.  63,  Subd.    (b).— §  232,  p.  180;  §   704,  p.  423;  §  704,  p.   424;   §  705,  p. 

425;  §  706,  p.  425;  §  711,  p.  427;  §  717,  p.  430;  §  717,  p.  431;   §  717,  p. 

433;  §  1647,  p.  1013. 
Sec.  63  (b),  Subd.  (5).— §  1104,  p.  632;  §  1524,  p.  908. 
Sec.  64.— §  845,  p.  488;  §  1387,  p.  817;  §  2019,  p.  1256;  §  2086,  p.  1290;  § 

2087,  p.  1292;  §  2090,  p.  1294;  §  2097,  p.  1298;  §  2139,  p.  1319;  §  2160,  p. 

1333;  §  2160,  p.  1334;  §  2183,  p.  1343. 
Sec.  64  (a).— §  702,  p.  423;  §  2141,  p.  1319;  §  2141,  p.  1320;  §  2141,  p. 

1321;  §  2144,  p.  1321;  §  2144,  p.  1322;  §  2150,  p.  1328;  §  2156,  p.  1331; 

§  2157,  p.  1332;  §  2161,  p.  1334. 
Sec.  64  (a),  Subd.  (!).—§  2013,  p.  1250. 


2086  GEXEIL-Ji-L  IXDEX. 

BANKRUPTCY  ACT— Continued. 

Sec.  64  (b).— §  1485,  p.  884;  §  1708,  p.  1055;  §  2017,  p.  1253;  §  2053,  p. 

1275;  §  2093,  p.  1295;  §  2096,  p.  1296;  §  2103,  p.  1300;  §  2141,  p.  1321; 

§  2169,  p.  1337;  §  2907,  p.  1704. 
Sec.  64,  Subd.  (b)  (2).— §  400,  p.  261;  §  1485,  p.  884;  §  1620,  p.  985;  § 

1708,  p.  1055;  §  1714,  p.  1057;  §  1712,  p.  1057;  §  1713,  p.  1057;  §  2015,  p. 

1252;  §  2018,  p.  1255. 
Sec.  64  (b),  Subd.  (3).— §  2063,  p.  1282;  §  2065,  p.  1282;  §  2077,  p.  1286; 

§  2078,  p.  1287;  §  2089,  p.  1293;  §  2097,  p.  1297;  §  2097,  p.  1298. 
Sec.  64  (b),  Subd.  (4).— §  1133,  p.  645;  §  2164,  p.  1335;  §  2165,  p.  1335: 

§  2167,  p.  1336;  §  2170,  p.  1338;  §  2172,  p.  1339;  §  2178,  p.  1341;  §  2179, 

p.  1341;  §  2180,  p.  1342;  §  2186,  p.  1344;  §  2203,  p.  1355;  §  2203,  p. 

1356. 
Sec.  64,  Subd.  (b)  (5).— §  5,  p.  22;  §  150,  p.  131;  §  1210,  p.  709;  §  1441, 

p.  851;  §  1441,  p.  852;  §  1485,  p.  884;  §  1619,  p.  984;  §  1631,  p.  1003;  § 

2018,  p.  1255;  §  2141,  p.  1320;  §  2170,  p.  1338;  §  2179,  p.  1341;  §  2179, 

p.  1342;  §  2181,  p.  ^1342;  §  2186,  p.  1344;  §  2187,  p.  1345;  §  2188,  p. 

1345;  §  2189,  p.  1346;  §  2190,  p.  1346;  §  2194,  p.  1346;  §  2196,  p.  1347;  § 

2196,  p.  1349. 
Sec.  64,  Subd.  (b)  (5).— §  2197,  p.  1349;  §  2197,  p.  1350;  §  2197,  p.  1351; 

§  2198,  p.  1351;  §  2198,  p.  1352;  §  2203,  p.  1355;  §  2203,  p.  1356;  §  2204, 

p.  1356;  §  2205,  p.  1357. 
Sec.  65  (a).— §  1532,  p.  915;  §  2209,  p.  1359;  §  2780,  p.  1628. 
Sec.  65  (c).— §  2212,  p.  1359;  §  2113,  p.  1360. 
Sec.  66  (a).— §  2217,  p.  1360. 
Sec.  66  (b).— §  2217,  p.  1360. 
Sec.  67.— §  1244,  p.  738;  §  1342,  p.  786;  §  1441,  p.  851;  §  1449,  p.  859;  § 

1494,  p.  892;  §  1603,  p.  970;  §  1603,  p.  973;  §  1603,  p.  974;  §  1629,- p. 

996;  §  1652,  p.  1021. 
Sec.  67  (a).— §  1137,  p.  662;  §  1138,  p.  664;  §  1138,  p.  666;  §  1207.  p. 

699;  §  1207,  p.  702;  §  1207,  p.  703;  §  1209,  p.  706;  §  1222,  p.  723;  § 

(1229,  p.  731;  §  1257,  p.  741;  §  1270,  p.  749;  §  1507,  p.  901;  §  1896,  p. 

1185. 
Sec.  67  (b).— §  1209,  p.  706;  §  1489,  p.  886;  §  1489,  p.  887;  §  1712,  p.  1057. 
Sec.  67  (c).— §  1126,  p.  642;  §  1133,  p.  645;  §  1137,  p.  662;  §  1138,  p.  665; 

§  1463,  p.  869;  §  1463,  p.  870;  §  1485,  p.  884;  §  1492,  p.  890;  §  1603,  p. 

973;  §  1603,  p.  974;  §  2198,  p.  1352. 
Sec.  67  (c),  Subd.  (3).— §  2036,  p.  1262. 
Sec.  67  (d).— §  760,  p.  452;  §  760,  p.  453;  §  1207,  p.  702;  §  1207,  p.  703; 

§  1314,  p.  770;  §  1500,  p.  896;  §  1500,  p.  897;  §  1501,  p.  897;  §  1501,  p. 

898;  §  2049,  p.  1273. 
Sec.  67  (e).— §  1095,  p.  620;  §  1126,  p.  642;  §  1133,  p.  645;  §  1137,  p.  662; 

§  1138,  p.  664;  §  1207,  p.  699;  §  1207  p.  700;  §  1219,  p.  723;  §  1259. 

p.  743;  §  1269,  p.  749;  § <1454,  p.  863;  §  1493,  p.  890;  §  1493,  p.  891;  § 

1496,  p.  893;  §  1497,  p.  895;  §  1498,  p.  895;  §  1499,  p.  895;  §  1580,  p. 

948;  §  1603,  p.  971;  §  1688,  p.  1039;  §  1688,  p.  1040;  §  1690,  p.  1041;  § 

1746,  p.  1071;  §  2874,  p.  1686;  §  2927,  p.  '1714. 
Sec.  67  (f).— §  777,  p.  460;  §  1100,  p.  624;  §  1100,  p.  626;  §  1126,  p.  642; 

§  1133,  p.  645;   §  1137,  p.  662;   §  1138,  p.  665;   §  1207,  p. 

700;  §  1429,  p.  847;  §  1436,  p.  849;  §  1443,  p.  853;  §  1443,  p.  854;  §  1444, 

p.  854;  §  1447,  p.  856;  §  1448,  p.  857;  §  1449,  p.  859;  §  1452, 

p.  861;  §  1453,  p.  862;  §  1455,  p.  864;  §  1458,  p.  865;  §  1460, 

p.  866;  §  1461,  p.  868;  §  1462,  p.  869;  §  1463,  p.  869;  §  1463,  p.  870;  § 


GENERAL  INDEX. 


2087 


BANKRUPTCY  ACT— Continued. 

1464  p  871;  §  1465,  p.  871;  §  1466,  p.  872;  §  1472,  p.  87o;  §  1474,  p. 
877-  §  1477  p  879;  §  1478,  p.  880;  §  1480,  p.  882;  §  1481,  p.  882;  §  1482, 
p.  883;  §  1485,  p.  884;  §  1489,  p.  886;  §  1489,  p.  887;  §  1491,  p.  889; 
§  1511,' p.  903;  §  1586,  p.  960. 

Sec  67  (f)  -§  1600,  p.  965;  §  1603,  p.  973;  §  1605,  p.  975;  §  1714,  p.  10o7; 
§  1712  p  1057;  §  1807,  p.  1105;  §  1828,  p.  1125;  §  2018,  p.  1255;  §  2116, 
p.  1304;  §  2197,  p.  1350;  §  2197,  p.  1351;  §  2198,  p..  1351;  §  2198,  p.  1352. 

Sec.  68.— §  1178,  p.  690;  §  1341,  p.  785. 

Sec.  68  (a).— §  1180,  p.  691;  §  1341,  p.  785. 

Sec.  68  (b).—§  1133,  p.  645;  §  1178,  p.  690. 

Sec.  68  (b),  Subd.  (!).—§  1177,  p.  689. 

Sec.  68  (b),  Subd.  (2).— §  1182,  p.  692. 

Sec  69.— §  1652,  p.  1021;  §  1836,  p.  1129;  §  2018,  p.  1255. 

Sec.  69  (a).-§  336,  p.  231;  §  377,  p.  249;  §  39i 


5,  p.  718; 


1216,  p.  7iy.  „,     o 

>c    70    (a),  Subd.    (5).-§   963,  p.   538;   §   1002,   p.   557;    §   1014,  p.    564;   § 

1015,  p.  565;  §  1135,  p.  647;  §  1138,  p.  664;  §  1207,  p.  702;  §  1208,  p.  706; 

§  1215,  p.  718. 
3ec    70  (b).— §  1957,  p.  1219;  §  1956,  p.  1219;  §  1958,  p.  1220. 
Sec.  70   (b),  Subd.   (4).-§  1222,  p.  723;  §  1631,  p.  1003;  §  1924,  p.  1203; 

§  1942,  p.  1212;  §  1949,  p.  1215. 
Sec    70   (c).— §  1208,  p.  704. 
Sec    70  (e).-§  1137,  p.  662;  §  1138,  p.  663;  §  1138,  p.  664;  §  1138,  p.  666; 

§  l'>07    p    699;  §  1207,  p.  700;  §  1207,  p.  702;  §  1209,  p.  706;  §  1215,  p. 

718-  §'l216,  p.  719;  §  1222,  p.  723;  §  1227,  p.  726;  §  1580,  p.  948;  §  1684, 

p    1036-  §  1687,  p.  1038;  §  1688,  p.  1039;  §  1689,  p.  1040;  §  1689.  p.  1041; 

§  1716,  p.  1058;  §  2874,  p.  1686;  §  2912,  p.  1707;  §  2927,  p.  1714;  §  2941, 

p.  1719. 
Sec.  70  (f).— §  2347,  p.  1424. 
Sec.  71.— §  1626,  p.  990. 
Sec.  72.— §  2029,  p.  1259;  §  2059,  p.  1281;  §  2117,  p.  1305. 

BANKRUPTCY  ACT  REMEDIABLE  AND' TO  BE  FAIRLY  CONSTRUED. 

§   22,  p.  37. 

BANKRUPTCY  COURT 

Forum  for  determination  of  "tax"  questions,  §  2157,  p.  1332. 
Jurisdiction  of,  see  "Conflict  of  Jurisdiction." 


2088  GENERAL  INDEX. 

BANKRUPTCY  LAW 

Release  from  Debts  not  [Main  nor  Essential  Idea,  Introd.   (a),  p.  1. 

See  "History." 

State  Courts  will  administer,  §  1597,  p.  964. 

BANKRUPTCY  PETITION 

See  ''Involuntarj^  Petition." 

See  "Voluntary  Petition." 

"Caveat  to  all  the  world,"  and  "attachment  and  injunction,"  §  1916,  p.  1194. 

Refusal  of  former  discharge  no  bar  to  present  bankruptcy  petition,  §   2441, 

p.  1477. 
Voluntary 

To  mention  firm  debts,  if  discharge  therefrom  sought,  §  2799,  p.  1642. 

BANKRUPTCY   PROCEEDINGS 

Proceedings  "In  rem,"  also  "In  personam,"  §  18,  p.  34. 
Nature  of,  §  18,  p.  34. 

"BANKRUPTCY  PROCEEDINGS"  PROPER 

Distinguished  from  "Controversies,"  §  19,  p.  36;  §  2864,  p.  1678. 
Reviewable  in  Supreme  Court  on  Certiorari,  §  3025,  p.  1749. 

"BECAUSE  OF  INSOLVENCY" 

Receiverships  as  acts  of  bankruptcj',  §  155,  p.  133. 

"BEYOND  REASONABLE  DOUBT" 

Contempt  for  disobedience  of  summary  order  to  surrender  assets,  proof 
must  be,  to  warrant  punishment  for,  §  1842,  p.  1137;  §  1859,  p.  1157. 

On  Discharge,  evidence  need  not  be,  §  2638,  p.  1571. 

Summary  order  on  bankrupt  to  surrender  assets,  whether  proof  must  be, 
§  1842,  p.  1137. 

BIDDERS 

Unfairness  towards,  at  sales  in  bankruptcy,  §  1954,  p.  1217. 

BILL  OF  EXCEPTIONS 

Not  requisite  on  appeal  nor  petition  for  review,  §  2954,  p.  1724. 

BILL  OF  SALE 

Of  trustee,  §  1998,  p.  1236.    Also,  see  "Unofficial  Forms  No.  31." 
BONA  FIDE  HOLDERS  OR  PURCHASERS 

For  value  prior  to  adjudication,  protected,  §  1227,  p.  726. 

At    sales    by    officers    of    State    courts,    protected    where    subsequent    bank- 
ruptcy   invalidates  lien  by  legal  proceeding,  §  1481,  p.  882. 
Have  burden  of  proof  of  bona  fides,  §  1482,  p.  883. 

BOND 

For  Annuity,  annuitant  still  living,  §  651,  p.  390. 
Appeal  bond,  §  648,  p.  389. 
On  Appeal 

Approval  of,  perfects  and  "allows"  appeal,  §  2978,  p.  1732. 

Delay  in,  not  fatal,  if  appeal  allowed  in  time,  §  2986,  p.  1733. 

Requisite,  §  2977,  p.  1731. 

Trustee  need  not  give,  §  2980,  p.  1732. 


GENERAL  INDEX.  2089 

BOND— Continued. 
For  Appeal 

Released  if  liability  dependent  on  judgment,  §  1511,  p.  902. 
For  Attachment 

Released  if  liability  dependent  on  judgment,  §  1511,  p.  902. 
Of  Assignee,  no  liability  on  to  creditors  who  participate  in  defeating  assign- 
ment, §  1624,  p.  988. 
For  Costs  of  receiver,  §  390,  p.  258. 
Damages  on,  §  370,  p.  245. 

For  Injunction,  §  370,  p.  245;  §  396,  p.  258;  §  1756,  p.  1073. 
For  Injunction  by  receiver,  §  396,  p.  258. 
■    Obtaining  of  Judgment  prerequisite  to  liability  on,  §  648,  p.  389. 
On  Petition  for  Review 

Not  requisite  except  by  local  rule,  §  2976,  p.  1731. 
Of  Receiver,  §  382,  p.  251. 

Premium  on,  §  2038,  p.  1263. 
Of  referee,  §  503,  p.  320. 

Refusal    to    Stay    Suit,    and    Permitting    Creditor    to    Perfect    rights    against 
Bond,   see   "Restraining   Orders   and    Injunctions — Qualified    Stay   Where 
Judgment  netessary  to  perfect  rights  against  Surety  or  Property." 
On  Review 

Trustee  need  not  give,  §  2980,  p.  1732. 
Of  Trustee,  §  2038,  p.  1263. 

Liable  on  loss  for  failure  to  deposit  in  depository,  §  910,  p.  519. 

Premium  on,  §  2038,  p.  1263. 

Remains  liable  for  two  years  after  estate  closed,  §  1791,  p.  1083    n. 
For  warrant  for  seizure  of  property,  §  336,  p.  231;  §  341,  p.  233. 

Cannot  be  waived  by  bankrupt,  §  342,  p.  233. 

Xeed  not  be  signed  by  petitioners,  §   343,  p.  233. 

Surety  Company  bond  sufficient,  §  344,  p.  233. 

Premium,  §  345,  p.  234. 

BONDS 

\Micn  pass  to  trustee,  §  1001,  p.  556. 

BOOKS 

Of  Account 

Failure  to  keep  as  bar  to  discharge,   see,  "Discharge — Opposition  to — 
Grounds  of — Destruction,  Failure  to  Keep  and  Concealment  of  Books." 
Production  of  may  be  enforced,  §  1548,  p.  926. 
Relating  to  bankrupt's  business  pass  to  trustee,  §  955,  p.  536. 
Not  Relating  to  bankrupt's  business  do  not  pass  to  trustee,  §  957,  p.  536. 

BORROW 

Receiver's  power  to  borrow  money,  §  389,  p.  255. 

BREACH  OF  PROMISE  OF  MARRIAGE 

Discharge  of,  §  2739,  p.  1614;  §  2754,  p.  1620. 

BRIDGE  BUILDING  CORPORATIONS 

See  "Manufacturing  Corporations." 


2090  GENERAL  INDEX. 

BRIDGE  CONSTRUCTION  COMPANIES 

See  "Involuntary   Bankruptcy." 

BROKERS 

Conversions  by 

Whether  discharged,  §  2785,  p.  1629. 

BUILDING  COMPANIES 

See  "Involuntary  Bankruptcy." 

BUILDING  CONTRACT,  §  672,  p.  409. 

Claims  for  uncompleted,  whether  provable,  §  688,  p.  417. 

Owner  ''adverse  claimant"  where  mechanics'   or  subcontractors'   liens   exist,. 

§  1682,  p.  1035. 
Rights  under,  on  marshaling  liens,  §  1885,  p.  1178  n. 
Unrecorded  indemnity  agreement  to  surety  of  bankrupt  contractor,  §  1370, 

p.  800. 

BUILDING  AND  LOAN  ASSOCIATION 

See  "Involuntary  Bankruptcy." 

BURDEN  OF  PROOF  ^      . 

On  Bankrupt 

If  exceptions  to  report  of  exempted  propert}-  amount  to  general  denial, 
§  1085,  p.  615. 
Of  Bona  Fides 

On  Purchaser,  at  Judicial  Sale,  §  1482,  p.  883. 
Of  Debt  Excepted  from  Discharge 

On  Plaintiff  where  discharge  interposed  ns  defense,  §  2685,  p.  1595. 
Deposition  for  proof  of  debt,  prima  facie  case  for  claimant,  §  844,  p.  484. 
Of  Each  Element  of  preference,  on  trustee,  in  suit  to  recover,  §  1768,  p.  1070. 
Of  Insolvency 

As  to   Preferences  and  preferential  liens  not  vacated  as  acts   of  bank- 
ruptcy, on  petitioning  creditors,  §  178,  p.  149. 

In  receivership  as  act  of  Bankruptc}%  §  154,  p.  133. 
On  Opposition  to  Confirmation  of  Composition,  §  2383,  p.  1441. 
On  Opposing  creditor,  on  opposition  to  discharge,  §  2635,  p.  1570. 

As  to  each  element  of  ground  charged,  §  2637,  p.  1571. 
Original  Order  of  Allowance,  prima  facie  case,  §  843,  p.  484. 
Of  Partnership 

On  Petitioning  Creditors,  §  63,  p.  69. 
Presumptions  of  fact  may  shift  against  bankrupt,  §  2636,  p.  1571. 
Of  propriety  of  off-set,  on  debtor  seeking  to  use  same,  §  1183,  p.  693. 
In  Prosecuting  bankruptcy  petition  is  on  creditors,  §  172,  p.   146. 
On  Setting  aside  Composition,  on  creditor,  §  2403,  p.  1452. 

BUSINESS 

Conducting  of 

Expense  of,  §  388,  p.  255;  §  2036,  p.  1262. 

Expense   of,   whether   chargeable   upon   property   to    detriment   of   prior 

valid  lien,  §  2036,  p.  1262  n. 
Extra  compensation  for,  §  2115,  p.   1303. 
Receiver  may  conduct,  but  only  for  limited  period,  §  387,  p.  255. 


GENERAL  INDEX.  '  2091 

BUSINESS  TAKEN  OVER 

Claims  on  old  concern's  debts,  §  810,  p.  471. 

BUYING  IN  CLAIMS 

Claims  l)ought  in  by  one  creditor  lose  separate  identity,  §  203,  p.  166. 

BUYING  OFF  OPPOSITION  TO  DISCHARGE 

Sufficient  for  revoking  discharge,  §  2814,  p.  1647. 
"CALL" 

Bankruptcy  court  may  make,  for  unpaid  stock  subscriptions,  §  977,  p.  547. 

CANCELLATION 

Of  Discharged  judgments,  §  2687,  p.  1596;  §  2707,  p.  1603. 
Petition  to  Redeem  gives  jurisdiction  to  order,  on  tender  of  amount   due, 
where  undisputed,  §  1870,  p.  1163. 

CAPACITY 

Act  Barring  Discharge,  whether  must  have  been  committed  in  same,  §  2486, 

p.  1503. 
In  which  Bankrupt  holds,  as  afifecting  summary  jurisdiction,  §  1820,  p.  1117. 
Pleadings  to  show  trustee's  representative  capacity,  §  1734,  p.  1068. 
Specifications    of    objections    to    discharge,    to    show    capacity    of    objecting 

creditor,  §  2594,  p.  1552. 
Trustee  may  plead  bankrupt's  «lack  of,  §  1204,  p.  698. 

CAPTION  AND  TITLE 

Of  Proofs  of  claims,  §  596,  p.  356. 

CARE  OF  EXEMPT  PROPERTY 

Bankrupt   not    entitled    to    reimbursement   for,    pending   setting   off,   §    1092. 

p.  617. 
Rents,  storage  and  other  charges  pending  setting  off,  may  be  taxed  against 

bankrupt,  §  1093,  p.  617. 

CASH  SURRENDER  VALUE 

See  "Life  Insurance  Policies  as  Assets." 

CASH  TRANSACTIONS 

Not  preferences,  §  1315,  p.  773. 

CATTLE  DEALER 

Exempt  from  Involuntary  Bankruptcy,  §  48,  p.  61. 
"CAVEAT" 

Maxim  that   filing  of  petition  a  caveat,  attachment  and  injunction,  §   1215, 
p.  718;  §   1916,  p.  1194. 

"CAVEAT  EMPTOR" 

Prevails  at  trustee's  sales,  §  1959,  p.  1220. 

CELERITY  OF  PROCEDURE  INTENDED,  §  23,  p.  38. 

CERTIFICATE 

Of  "Conformity" 

None  required  as  prerequisite  to  discharge,  §  2457,  p.  1487. 
Of  discharge,  is  proof  of  discharge,  §  2684,  p.  1595. 


2092  GENERAL  INDEX. 

CERTIFICATE— Continued. 
Of  referee 

To  his  record,  §  2299,  p.  1401. 

Of  contempt,  §  2336,  p.  1418. 

Of  commission  of  contempt,  a  judicial  act,  not  ministerial  duty,  §  2337, 
p.  1418. 
Of  referee  on  review,  §  2852,  p.  1664 
On  review  of  Referee's  order, 

Findings  of  fact,  §  2857,  p.  1668. 

May  be  prepared  by  counsel,  §  2853,  p.  1665. 

Not  entire  evidence,  but  only  "summary,"  §  2855,  p.  1666. 

Petition  and  certificate  transmitted  to  District  Clerk,  §  2859,  p.  1669. 

Question,  to  be  stated  clearly  and  distinctly,  §  2858,  p.  1669. 

CERTIORARI 

To  send  up  missing  matter,  to  complete  record  on  appeal,  §  2968,  p.  1729. 
Review  in  Supreme  Court  on,  §  3025,  p.  1749;  §  3024,  p.  1748. 

"CESSIO  BONORUM" 

Introd.   (d),  p.  2. 

CHANGE  OF  BENEFICIARY 

Life  insurance  policies  containing  right  to  change  beneficiary  pass  to  trus- 
tee,   §    1007,    p.    560. 

CHANGE  OF  DEBTOR'S  CLASS 

After  commission  of  act  but  before  filing  of  petition,  §  95,  p.  91. 

CHATTEL  MORTGAGEES 

When  are  adverse  claimants,  §  1655,  p.  1029;  §  1675,  p.  1033. 

On  After-acquired  property,  §  1264,- p.  745;  §  1509,  p.  902. 

To  Cover  Future  Advances,  good,  though  made  within  four  months,  §  1223, 

p.  725. 
Distinction  between  conditional  sales,  as  mere  retentions  of  title,  and  chat- 
tel mortgages  as  "transfers,"  §  1244,  p.  738. 
Failure  to  comply  with  statutory  requirements 

Void  for,  §  1199,  p.  697. 
Indefiniteness  in, 

Void  for,  §  1199,  p.  697. 
Jilade   in   State   where    recording   not   required,   but   contemplating   delivery 

where  required,  §  1247,  p.  739. 
Marshaling  of  lien  of,  §  1885,  p.   1178. 
With  Power  of  sale 

When  void,  §  1258,  p.  741. 

Not  void,  if  agreement  to  apply  exists,  though  agreement  disregarded, 

§  1259,  p.  743. 
Mere    remaining   in    possession    and    selling    for    short    period,    without 

reservation  of,  does  not  vitiate,  §  1262,  p.  743. 
Not  reserved  in  express  terms,  §  1261,  p.  743. 

WHiether  void  as  to  goods  to  be  sold,  or  void  in  toto,  §  1262,  p.  743. 
Trustee  may  defend  that  it  does  not  cover  after-acquired  property,  §   1199, 
p.  697. 


GENERAL  INDEX.  2093 

CHATTEL  MORTGAGEES— Continued. 

Unfiled 

Permitting   creditors    to    levy    after   bankruptcy    in    order   to    arm    with 

process,  §  1239,  p.  735. 
Defective  refiling  of,  §  1240,  p.  736. 
Whether   lien   begins   at   date    of   taking   possession    or   reverts,    §    1237, 

p.  735. 
As  to  after-acquired  property,  §  1238,  p.  735. 
Pretended  to  be  property  held  in  trust,  §  1228,  p.  729. 
When  void  as  against  trustee,  §  '1230,  p.  732. 
Not  void  where  filing  or  recording  not  required,  §  1231,  p.  732. 
Meaning  of  "required,"  §  1232,  p.  733. 
Whether  creditor  must  have  levied,  or  been  "armed  with  process,"  §  1233, 

p.  733. 
Not  void  where  damage,  etc..  must  also  be  shown,  §  1234,  p.  734. 
Not   void   where    equitable    sequestrations   by   receivers,    assignees,    etc., 

insufficient,  §  1235,  p.  734. 
Taking  of  possession  curing  lack  of  record,  §  1236,  p.  734. 
Withheld  from  record,  §  1508,  p.  901. 

CHECK 

Giving  of  not  preference,  but  paying  of  it  is,  §  1283,  p.  757. 

CHIEFLY  ENGAGED  IN  FARMING  OR  TILLING 

Corporations  not  within  this  exemption  from  involuntary  bankruptcy,  §   50, 

p.  62. 
Exempt  from  involuntary  bankruptcy,  §  48,  p.  60. 
Incidental  farming  or  tilling  does  not  exempt,  §  48,  p.  60. 
]\Iust  be  "chiefly"  engaged,  else  not  exempt,  §  48,  p.  60. 

CHILD 

Rights  of  on  Bankrupt's  Death 

Death  occurring  after  adjudication,  §  100,  p.  97. 

Death   occurring  Before   adjudication   and   after   filing   of  petition,   §   99, 
p.  95. 
Support  of 

Liabilities  for,  not  discharged,  §  2757,  p.  1621. 
Liabilities  to  third  parties  not  excepted,  §  2759,  p.  1621. 

CHOSES  IN  ACTION 

Not  property  '"in  possession"  of  bankrupt,  §  1810,  p.  1109. 

CIRCUIT  COURT  OF  APPEALS 

Appeals  to,  see  "Appeal  and  Error — Appeals  to  Circuit  Court  of  Appeals — 
In  Bankruptcy  Proceedings  Proper." 

CIRCUIT  COURT  OF  THE  UNITED  STATES 

Jurisdiction  of  in  bankruptcy  matters,  §  1686,  p.  1037. 

CIRCULATING  LIBRARY  CORPORATIONS 

Not  subject  to  Bankruptcy,  §  94,  p.  89. 

CIRCUMSTANTIAL  EVIDENCE 
As  Proof  of  Intent 

To  Conceal    financial  condition,  §   2546,  p.   1534. 
To  Prefer,  §  131,  p.  114. 


2094  GENERAL  INDEX. 

CITATION   ' 

On  Appeal,  §  2960,  p.  1725. 

Delay  in,  not  fatal  if  appeal  "allowed"  in  time,  §  2986,  p.  1733. 

May  be  granted  after  expiration  of  appeal  time,  §  2973,  p.  1730. 
Record  on  appeal  must  show,  §  2970,  p.  1729. 

CLAIM 

Allowable  claims,  see  "Allowable  Claims." 

Allowance   or  rejection   of,   is   the   only   "bankruptcy   proceedings"    proper 
appealable  to  Supreme  Court,  §  3013,  p.  1744. 

Only  permissible  then  if  amount  in  controversy  exceeds  $2000,  §  3014, 

p.  1745. 
Or   some    Supreme    Court   Justice    certifies    Essential    to    uniform    con- 
struction, §  3015,  p.  1745. 
Allowance  of  not  necessary  for  other  participation  in   creditors'   meetings 
than  voting,  §  580,  p.'  349. 
,  Allowed,  only,  may  vote,  §  575,  p.  3*8. 
Appealabilitj'  of,   see  "Appeal  and  Error — Appeal  to   Circuit   Court   of  Ap- 
peals— In  Bankruptcy  Proceedings  Proper — Claims." 
Assignment  of,  see  "Assignment  of  Claim." 
On  Contract,  Express  or  Implied 

See  "Contract,  Express  or  Implied." 

Also,  see  "Claim  Not  Owing  at  Time  of  Filing  Bankruptcy  Petition." 
Of  Endorser 

See  "Endorsers." 
See  "Sureties  and  Guarantors." 
Ex  Contractu 

Onlj^  such  claims  and  tort  claims  presentable  as  such,  may  be  liquidated, 
§  706,  p.  425. 
Ex  Delicto 

Discharged  if  tort  might  be   waived   and   claim   be   presented   ex   con 

tractu,  §  2733,  p.  1613. 
Not  provable  unless  in  judgment,  §  635,  p.  376. 

But  provable  where  tort  waivable,   and   Claim  presentable   as   in   Con- 
tract, §  636,  p.  377. 
Claimant  must  elect,  §  637,  p.  378. 

May  not  waive  tort  as  to  part  and  affirm  it  as  to  balance  of  same  trans- 
action, §  638,  p.  378. 
After  election  claimant  foreclosed,  §  639,  p.  581. 

Judgment  for,  discharged,  though  liability  on  which  founded  not,  §  2740, 
p.  1615. 

Where   Lien  by   Legal   Proceedings  created   within   four   months   held  by 
claimant 

Allowability  of,  §  776,  p.  459. 

Judgment  whose  lien  null  under  section  67  (f),  nevertheless  allowable, 

§  777,  p.  460. 
Judgment  remains  and  is   res  judicata,  §   778,  p.  460. 
Lien  to  be  surrendered  before  claim  allowable,  §  779,  p.  461. 
Meaning  of  "claim"  in  §  25   (a),  §  2904,  p.   1704;  §  2905,  p.   1704;  §  2906,  p. 

1704;  §  2907,  p.  1704;  §  2908.  p.  1705. 
For  Money  Deposited  with  Bankrupt  Bank,  §  806,  p.  470. 
On  Old  Concern's  Debts,  where  business  taken  over,  §  810,  p.  471. 


GEXERAI,  INDEX.  2095 

CLAIM— Continued. 
On  Open  Account 

See  "Account." 

Also,  see  "Claim  Not  Owing  at  Time  of  Filing  Bankruptcy  Petition." 
Not  Owing  at  time  of  filing  bankruptcy  petition 

Attorney's  Collection  Fee  stipulated  in  note,  §  671,  p.  407. 

Anticipatory  Breach,  bankruptcy  operating  as,  §  674,  p.  410. 

Bankruptcy   Operating  by  contract,   to   Mature   Future   Installments,    § 
675,  p.  412. 

Judgment  must  be  "Absolutely  Owing"  to  be  provable,  §  670,  p.  406. 

Open    accounts    and    contracts    express    or    implied,    must    be    "owing," 
§  672,  p.  407. 

To  be  "Owing,"  not  necessary  to  be  "Dtie,"  §  673,  p.  410. 

To    be    "Owing"    not    necessary    for    damages    to    be    liquidated,    §    67.3, 
p.  410. 

Property  bought  on  credit,  after  filing  of  petition  and  before  adjudica- 
tion, claim  for  not  "Owing,"  §  1135,  p.  648. 

Not  Provable,  §  669,  p.  406. 

Subject  of,  involves  that  of  contingent  claims,  §  668,  p.  406. 

Not  Sufificient  for  Petitioning  Creditor's  Claim,  §  229,  p.  179. 

Written    Instruments   must   be   "Absolutely   Owing"   to   be    "Provable," 
§  670,  p.  406. 

Not  Discharged,  §  2735,  p.  1613. 
Of  "Preferred  Creditor" 

Allowance  of,  see  "Preferred  Creditor — Allowabilitj^  of  Claiip  of."     Also, 
see  "Surrender  of  Preference." 
See  "Proof  of  Claim." 

Rejection  of  allowance  of,  see  "Allowance  of  Claims." 
Of  Relative 

See  "Relative." 
For  Rent 

Provability  of,  involved  in  subject  of  provability  of  contingent  claims, 
§   625,  p.  393. 

Does  bankruptcy  sever  relations  of  landlord  and  tenant,  §  653,  p.  393. 

Rent  accrued  up  to  date  of  filing  bankruptcy  petition,  provable,   §   654, 
p.  399. 

Rent  due  and  payable  before   such   filing,   but  for   occupancy  to   occur 
afterwards,  provable,  §  655,  p.  399. 

Installments  accruing  after  adjudication,  for  occupancy  thereafter,   not 
provable,  §  656,  p.   399. 

Rent   accruing   before    adjudication    but   after    filing   of   petition,    §    657, 
p.  400. 

Bankruptcy    stipulated    to    terminate    lease,    future    rents    not    provable, 
§  658,  p.  400. 

Bankruptcy  or  default  in  payment  maturing  future   installments,   §   659, 
p.  400. 

Bankruptcy  of  tenant  no  breach  of  subtenant's   covenant   of  quiet  en- 
joyment, §  666,  p.  406. 

Subtenant's  eviction  must  occur  before  tenant's  bankruptcy,  else  no  prov- 
able claim,  §  666,  p.  406  n. 

Subtenant   no   damages   where   no    right    of   forfeiture    reserved,    §    666, 
p.  406  n. 


2096  GENERAIv  INDEX. 

CLAIM— Continued. 

Rent  for  occupation  after  filing  of  petition,  and  before  adjudication,  re- 
coverable at  stipulated  rate,  §  667,  p.  406. 
Even  where  notes  given  for  future  rent,  notes  not  provable,  §  660,  p. 

402. 
Notes  for  future  rent  provable  if  negotiable  and  in  hands  of  innocent 

holders,  or  taken  as  payment,  §  661,  p.  403. 
Sureties  for  future  rent  not  released  by  bankruptcy,  §  662,  p.  403. 
Liens  for  futui-e  rent  not  released,  §  663,  p.  404. 

Mere  re-entry  clause  gives  no  lien,  on  sale  of  leasehold,  §  664,  p.  404. 
Landlord  forfeiting  lease  or  accepting  surrender  waives   claim  for  un- 
expired term,  §  665,  p.   404. 
Of  Surety 

See  "Sureties  and  Guarantors." 
Tainted  with  Illegality  or  Fraud 
Allowability  of,  §  803,  p.  469. 
Whether   a   "debt,"    "claim"    or   "demand,"   dependent    on   state   law,    §    631, 

p.  375. 
Year's   Limitation  for  Filing,  see  "Year's  Limitation  for   Filing  Claims." 

"CLEAR"  AND  "CONVINCING"  PROOF 

Requisite    to   warrant    summary    order    on    bankrupt    to    surrender    assets,    § 
1842,  p.   1137. 

"CLEAR"  EVIDENCE 

When  necessary  on  discharge,  §  2639,  p.  1572. 

CLERICAL  MISTAKES 

Disregarded  on  review,  §  3011,  p.   1742. 

CLERK 

Of  U.  S.  District  Court,  may  require  indemnity  in  advance,  §  2021,  p.   1257. 

CLERKS 

See  "Wages— Of  Workmen,  Clerks  and  Servants." 

CLOSING  OF  CASE 

After  composition  and  distribution  completed,  §  2397,  p.   1449. 

CLOSING  OF  ESTATES 

Certifying  to  Referee's  Record  and  Transmission  to  District  Clerk,  §  2299, 
p.  1401. 

CLOSING  OF  ESTATE 

Claims  not  re-examined  after,  §  861,  p.  493. 

Duty  of  trustee  to  close  estate  expeditiously,  §  908,  p.  519. 

Estate  not  technically  closed  where  no  trustee  appointed,  §  871,  p.  498. 

Final  Report  and  Final  Meeting,  §  2295,  p.  1400. 

Notice,  ten  days,  of  Final  Report  and  Final  Meeting,  §  2296,  p.  1401. 

Order  Approving  Trustee's  Report  and  Discharging  trustee  from  his  trust, 

closes  estate,  §  2298,  p.  1401. 
Property  Concealed  until,  does  not  revest  in  bankrupt,  §  996,  p.  555;  §  1113, 

p.  636  n. 
See  further,  "Reopening  of  Estate." 
Trustee's  Duty  to  file  final  report,  §  2297,. p.  1401. 


GENERAI,  INDEX.  2097 

CLOSING  AND  REOPENING  OF  ESTATES 

Reviewable  by  petition  to  revise,  §  2931,  p.   1715. 

CLUBS 

Memberships  in,  when  pass  to  trustee,  see  "Memberships  in  Stock  Ex- 
change," etc. 

COLLATERAL  ATTACK 

On  adjudication,  §  450,  p.  296. 

Existence  of  Jurisdictional   Facts  need  not   appear  on   Face   of   Record, 

§  30,  p.  51  n. 
But  if  Lack  of  Jurisdictional   Facts  affirmatively  appears   on  Face,  De- 
cree Void,  §  30,  p.  51  n. 

On  Discharge 

Defending  that  debt  not  duly  scheduled,  is  not,  §  2781.  p.  1628. 

None  permissible,  §  2442,  p.  1477;  §  2478,  p.  1495;  §  2686,  p.  1595. 

Avoiding  effect  of  discharge  by  showing  debt  excepted,  not,  §  2443,  p. 
1477;  §  2444,  p.   1477;  §  2667,  p.  1587. 

For  lack  of  "residence,"  §  2478,  p.  1495. 

Avoiding  efifect  of  discharge  by  showing  debt  not  "provable,"  not  col- 
lateral attack.  §  2667,  p.  1587. 

COLLECTION  OF  ASSETS 

Duty  of  Trustee  as  to,  §  907,  p.  518. 

COLLECTION  FEE 

Stipulated  in  note,  when  provable,  §  671,  p.  407. 

COLLUSION 

On  Election  of  Trustee 

Question  of,  to  be  definitely  disposed  of  before  approval  of  election 
of   trustee,   §    893,   p.    509. 

COMITY 

Injunction  refused  on  ground  of,  §  1904,  p.  1190. 

Requires  request  for  stay  first  in  court  where  action  pending,  §  2699,  p. 
1600. 

Requires  resort  first  to  State  court,  before  injunction,  §  362,  p.  243;  §  2699, 
p.   1600;  §  1904,  p.  1190. 

Requires  resort  first  to  court  wherein  lien  by  legal  proceedings  obtained, 
§  1472,  p.  874;  §  1600,  p.  966  n. 

Requires  resort  to  State  Court  first,  where  State  "Insolvency"  or  "Bank- 
ruptcy" proceedings  superseded,  §  1637,  p.  1010. 

COMMENCEMENT  OF  PROCEEDINGS 

Filing  of  petition  is,  §  306,  p.  219. 

Service  of  process,  to  be  according  to  Federal  equity  practice,  §  307,  p.  219. 

Service  by  publication  upon  involuntary  petition,  §  308,  p.  219. 

COMMERCIAL  AGENCIES 

Statements  to,  whether  to  be  taken  as  conclusive  admissions  of  assets,  § 
1852,  p.  1151  n. 

2  Rem  B— 57 


2098  GENERAL  INDEX. 

COMMERCIAL  PAPER 

Allowability  of  accommodation  paper,  §  794,  p.  464. 

Disregarding  note  and  claiming  on  original   consideration,   §   796,   p.   465;   § 

1153,  p.  680. 
Negotiability  unimpaired  by  bankruptcy,  §  794,  p.  464. 

Nonnegotiable  paper  subject  to  same  defenses  as  elsewhere,  §  795,  p.  465. 
When  pass  to  trustee,  §  1001,  p.  556. 

COMMINGLING  OF  TRUST  FUNDS  OR  PROPERTY,  §  1884,  p.  1173. 

COMMISSIONS 

Of  Agents 

For  taking  orders,  Claims  for,  §  807,  p.  470. 

Of  Referee 

On  Sales  Free  from  Liens,  §  1996,  p.  1236. 
See  "Referee  in  Bankruptcy — Fees  of." 
Of  Trustee 

On   Sales   Free  from  Liens,  §   1996,  p.  1236. 
See  "Trustee  in  Bankruptcy — Fees  of." 

COMMON  CARRIERS 

See  "Involuntary  Bankruptcy." 

COMMUNICATIONS 

See  "Privileged   Communications." 

"COMMUNITY  PROPERTY  OF  HUSBAND  AND  WIFE" 

Priority  of,  §  2205,  p.  1357. 

COMPENSATION 

No  Additional,  allowable  "in  any  form  or  guise,"   to  trustee   or   referee,   § 

2117,  p.  1305. 
Of  Receiver  in  bankruptcy,  §  2118,  p.  1806;  §  2119,  p.  1306. 
Of  Referee  in  bankruptcy,  see  "Referee  in  Bankruptcy — Fees  of." 
Of  Special   Master  on  discharge,  §  2660,  p.  1578. 
Of  Trustee,  see  "Trustee  in  Bankruptcy — Fees  of." 

COMPETENCY 

Of  Witnesses,  governed  by  U.   S.  statutes  not  by  State  statutes,   §   551,  p. 
335;  §  1567,  p.  941. 

COMPOSITION 

Candidate  for  trustee  interested  in  scheme  of,  incompetent,  §  891,  p.  509. 
Claim  of  Creditor  obtaining  secret  advantage  in,  §   803,  p.  469. 
Commissions  of  referee  upon,  §  2106,  p.  1300. 
Commissions  of  trustee  upon,  §   2110,  p.   1302. 
Confirmation  of 

Appealability  of,  §  2896,  p.  1701. 
Appeal  of,  §   2410,  p.   1454 

Creditors  assenting  to  composition  necessary  parties  on,  §   2838,  p. 

1657. 
Whether  appeal  is  only  method  of  review,  §  2411,  p.   1454. 
Who  may  appeal,  §  2412,  p.   1454. 

Refusal  to  confirm  not  to  be  reversed,  except  for  abuse  of  discre- 
tion, §  2413,  p.  1455. 


GENERAL  INDEX.  2099 

COMPOSITION— Continued. 

Distribution  after  confirmation 

To  be  made  as  the  Judge  "may  direct."  §  2389,  p.   1445;  §  2390,  p.   1445. 
Referee  divested  of  jurisdiction,  except  as  otherwise  ordered  by  Judge, 

§    2391,    p.    1445. 
Distributing  agent  usually  appointed,  §  2392,  p.  1446. 
All   creditors   to   share,  whether   proofs   filed   or   allowed   or   not,  unless 

limited  by  order  of  distribution,   §  2393,  p.   1446. 
Whether  bound  by  year's  limitation  for  filing  claims,  §  2394,  p.  1446. 
Secured  creditors  to  participate  to  amount  of  deficit,  §  2395,  p.  1448. 
Judge  may  limit  time  and  require  filing  of  proofs  of  claims,   §  2396,  p. 

1449. 
Closing  of  case  after  distribution  completed,  §   2397,  p.   1449. 
Jurisdiction    to    determine  .ownership    of    property    in    custody    of   court 

not  divested,  §  2398,  p.   1449. 

Nature  and  Effect  of 

Composition  simply  different  method  of  administering  estate  and  real- 
izing on   same  for  creditors,  §  2345,  p.   1423. 

Effect  of,  in  general,  §  2346,  p.  1424. 

Restores  estate  to  debtor,  §  2347,  p.   1424. 

Pendency  of  petition  for  confirmation  suspends  sale  and  distribution 
of  assets,  §  2348,  p.  1425. 

Confirmation  of  composition  in  effect  a   discharge,  §   2349,   p.   1426. 

Release  of  debts  is  by  operation  of  law  and  not  by  consent,  §  2350,  p. 
1427. 

Claims  "provable,"  though  not  actually  "proved,"  "discharged,"  §  2351, 
p.  1427. 

Must  be  "duly"  scheduled,  §  2352,  p.  1427. 

"Duly  scheduled" — as  to  time — different  in  composition  from  what  it 
is  in  discharge,  §  2353,  p.  1427. 

Right  to,  and  effect  of,  distinct,  §  2354,  p.  1428. 

Opposition  to  confirmation  of 

Who  may  oppose,  §  2375,  p.  1438. 

Creditors   may,   §   2375,   p.   1438. 

Trustee  may  not,  §  2375,  p.  1438. 

Court   may   postpone   confirmation,   where   procedure    irregular,    §    2376. 

p.   1439. 
Procedure   on   opposition  to   composition   similar   to   that   on   discharge, 

§  2377,  p.   1439. 
Entry  of  appearance  requisite,  §  2378,  p.  1440. 

Ten  days  time,  after  appearance,  for  filing  specifications,  §  2379,  p.  1440. 
Form  and  allegations  of  specifications,  §  2380,  p.   1440. 
Three  grounds,  for,  §  2381,  p.  1440. 
Statutory   grounds   requisite   to   bar   confirmation   on   merits,   §    2382,   p. 

1441. 
Burden  of  Proof  on  opposing  creditor,  §  2383,  p.  1441. 

First  ground  for  opposing  confirmation 

"Not  for  best  interest  of  creditors,"  §  2384,  p.   1441. 
Test  of  "best  interest,"  §  2385,  p.  1441. 

Creditors   acceptance   of   offer   not   to   be   lightly   interfered   with,   § 
2386,  p.  1442. 


2100  GENERAL  INDEX. 

COMPOSITION— Continued. 

Second  ground  for  opposing  confirmation 

Commission  of  act  barring  discharge,  §  2387,  p.  1443. 
Third  ground  for  opposing  confirmation 

Offer   or   acceptance   not   in   good   faith   or   procured   improperly,   § 
2388,  p.  1444. 

Procedure  on 

Offer  to  be   accepted   bj^  majority  in   number   and   amount   of   allowed 

claims,  §  2361,  p.  1432. 
Creditors  once  accepting  may  not  withdraw,   except  for   fraud   or   mis- 
representation, §  2362,  p.  1433. 
Petition   for   confirmation   of   composition,   when    may   be    filed,   §    2363, 
,   p.  1434. 

Designation  of  amount  and  place  of  deposit,  §  23G4,  p.  1434. 
Deposit  to  be   sufficient  to   pay  all   costs   and   priority   claims,  as   well 

as  consideration  to  creditors,  §  2365,  p.   1434. 
Must  cover  all  claims  filed  and  all  scheduled,  §  2366,  p.  1434. 
Whether  must  cover  deficiency  of  secured  claims  not  yet   filed,  §   2367, 

p.   1434. 
Ofifer  of  Composition.  §  23.55,  p.  1429. 
Statute   strictly   construed   and   all   requirements   to   be   fulfilled,   §   2356, 

p.  1430. 
Irregular  compositions  and  settlements  in  other  than  statutory  manner, 

§  2357,  p.  1430. 
Special  meeting  for  presentation  of  offer,  §  2358,  p.  1431. 
Examination  of  bankrupt  and  filing  of  schedules  requisite  before  offer, 

§   2359,   p.    1432. 
Offer  to  be  accepted  in  writing,   §  2360,   p.   1432. 
What  costs  provided  for  in  composition,  §  2368,  p.  1435. 
Whether  consideration  always  to  be  in  monej^  §  2369,  p.  1435. 
Form   of  application   for   confirmation   of   composition,   §   2370,   p.    1436. 
Ten  daj's  notice  by  mail  to  be  given,  §  2371,  p.  1436. 
Hearing  on  petition  for  confirmation,  §  2372,  p.  1436. 
Only  Judge  to  pass  on  application,  §  2373,  p.  1436. 
May  refer  issues  to  referee  as  special  master,  §  2374,  p.  1437. 

Setting  Aside  of 

Petition  to -set  aside   composition,  §   2406,   p.   1453. 

Leave  to  file  petition  granted  unless  lack  of  merit  appears  on  face,  § 
2407,  p.  1453. 

Consideration  need  not  be  tendered  back,  §  2408,  p.  1453. 

Ignorance  of  fraud  sufficiently  alleged  in  general  terms,  §  2409,  p.  1453. 

Court's  power  to  set  aside  confirmation  for  irregularity,  §  2399,  p.  1451. 

Setting  aside  confirmation  on  application  of  parties,  §  2400,  p.  1451. 

Must  be  applied  for  within  six  months,  §  2401,  p.  1452. 

What  not  estoppel  of  creditor,  §  2402,  p.  1452. 

Burden  of  proof  on  creditor,  §  2403,  p.  1452. 

Only  "parties  in  interest"  competent  to  petition  for  setting  aside,  § 
2404,  p.  1452. 

Principles  and  practice  on  revocation  of  discharge,  whether  ap- 
plicable,  §   2405,  p.   1452. 


GENERAL  INDEX.  2101 

COMPROMISE   OF  CONTROVERSIES,  §  926.  p.  523 
Application  for,  §  927,  p.  523. 
Allegations  of,  §  927,  p.  523. 

Creditors  entitled  to  be  heard,  but  vote  not  conclusive,  §  929,  p.  523. 
Notice,  ten  days,  requisite,  §  565,  p.  343;  §  928,  p.  523. 
Rights  of  Lienholders  not  to  be  prejudiced  by,  §  931,  p.  524. 
What  claims  may  be  compromised,  §  930,  p.  523. 
Notice  to  be  given  of,  §  565,  p.  343;  §  928,  p.  523. 

COMPUTATION  OF  TIME 

Of  "four  months"  period,  §  189,  p.  154. 
CONCEALED  PROPERTY 

Belonging  to  the  estate  passes  to  trustee,  §  996,  p.  555. 

Does  not  revest  in  bankrupt  on  closing  of  estate,  §  1113,  p.  636  n. 

Reimbursing  creditors   for   expense  in   recovering,    see   "Reimbursement   of 

Creditors  Through  Whose  Efforts  Assets  Recovered." 
Title  to,  in  whom,  if  no  trustee  ever  appointed,  §  1127,  p.  642. 

CONCEALMENT 

Forfeiting  of  exemptions  by,  §  1098,  p.  623. 
CONCEALMENT  OF  ASSETS 

Bankrupt  only,  indictable   for,   §   2326,  p.   1412. 

As  bar  to    discharge,    see    "Discharge— Opposition    to — Grounds    of — Con- 
cealment of  Assets." 
Continuing  concealment,  as  an  "offense,"  §  2319,  p.  1410. 
Essential  elements  in  proof  of  as  a  crime,  §   2328,  p.   1413. 

CONCEALMENT  OF  FRAUDULENTLY  TRANSFERRED  PROPERTY 

See   "Discharge,   Opposition   to — Grounds  of — Concealment   of  Assets." 
CONDITIONAL  SALE 

Distinction   between,    as   mere   retention    of   title,   and   chattel   mortgage,    as 

"transfer,"  §  1244,  p.  738. 
Made  in   State   where   recording   not   required,   but   Contemplating   Delivery 

in  State  where  required,  §  1247,  p.  739. 
Reclaiming  of  Property,  left  with  bankrupt  on,  §  1877,  p.  1165. 
Power  of  sale  in  conditional  vendee,  §  1245,  p.  738  n;  §  1263,  p.  744. 
With  Power  of  Sale  in  the  vendee,  subject  to  same  rules  as  chattel  mort- 
gages,  §  1263,   p.   744. 
With  Power  to  Sell  in  usual  course,  property  sold  on  passes  to  trustee,  § 

997,  p.  555;  §  1263,  p.  744. 
Unfiled  or  Unrecorded 

Not  void  where  filing  or  recording  not  required,  §  1243,  p.  738. 
Pretended  to  be  property  held  in  trust,  §  1228,  p.  729. 
Disguised,  void,  for  want  of  record,  §  1246,  p.  739. 

Disguised     as     "consignment,"    "lease,"    "agency,"    "pledge,"    or    "bail- 
ment," §  1228,  p.  726. 
When  void  as  against  trustee,  §  1241,  p.  736. 
Whether  creditor  "Armed  with  Process"  must  exist,  §  1242,  p.  736. 

CONDITIONS 

Imposing  of  on  Amendment 

To  Proof  of  Claim,  §  620,  p.  367. 

To  Specifications  in  Opposition  to  Discharge,  §  2620,  p.   1564. 


2102  GENERAI.  INDEX. 

CONFIRMATION 

Of  composition,   see   "Composition — Nature   and   Effect   of." 

CONFIRMATION  OF  COMPOSITION 

Notice   to   all   creditors   to   be   given,   §    565,   p.    343. 

CONFIRMATION  OF  SALE 

See  "Sales  in  Bankruptcj'."' 

CONFLICT  OF  JURISDICTION 

Administrators,  etc.,  where  bankrupt  owns  interest  in  estate,  not  disturbed, 

§  1595,  p.  964. 
Assignments  and  receiverships  created  before  four  months,  §  1594,  p.  964. 
Attachments  obtained  prior  to  four  months,  not  abated,  §  1588,  p.   962. 
Bankruptcy   Court  may   enjoin  to  permit  intervening   of  trustee,   §   1598,   p. 

964. 
Because    Bankruptcy    Court   Preferable   or   trustee   interested,   not   sufficient 

to  confer  jurisdiction,  §   1583,  p.  957. 
In  collecting  and  Protecting  assets,  §  1580,  p.  948. 

Court  cautious  in  dealing  with  conflict  of  jurisdiction,  §  1581,  p.  948. 
Creditors'  bills  instituted  before  four  months,  §  1593,  p.  963. 
Custody  of  State  court  preserved  in  part,   and  in  part   superseded,  §   1587, 

p.  962. 
First  exception  to  rule  that  State  court  retains  jurisdiction  if   first   to  ob- 
tain it:  Nullified  Legal  Liens,  §  1599,  p.  965. 

See  also,   "Liens  by   Legal   Proceedings   NuUilied   by  Bankruptcy." 
When  Lien  Nullified,  property  recoverable  by  summary  order-,   §   1601, 

p.  966. 
Foreclosure   and   other   suits   not   themselves   creating   liens   nullified   by 
bankruptcy,  but  simply  enforcing  liens,  etc.,  not  abated,  where  started 
before  bankruptcy  seizure,  §  1586,  p.  959. 
Fraudulent   conveyance   suits   instituted   before   four   months,   §    1591,   p. 

963. 
Fraudulent   convej-ance   suits   within   four   months    in   aid   of   le\y   made 

before  four  months,  not  abated,  §  1592,  p.  963. 
Landlord's   Levy,   §    1589,   p.   962. 
Partnership   dissolution  suits,  l^  1590,  p.  963. 
Pending    Suits    by    and   against    bankrj.ipt,    see    "Pending    Suits    by    and 

against  Bankrupts." 
Replevin  and  other  suits  asserting  Ownership,  where  seizure  made  first 
by  State  court,  not  abated,  §  1585,  p.  958. 
Second  exception  to  rule  that  State  court  retains  jurisdiction  if  first  to  ob- 
tain it— general  assignments,   receiverships,  etc.,   nullified  by  bankruptcy, 
§  1602,  p.  966. 

Until  adjudication  custody  not  superseded,  §  1609,  p.  978. 
Assignee   or   receiver  may   be   enjoined,   §   1610,   p.   978. 
May  be  ordered  summarily  to  surrender  assets,  §  1611,  p.  978. 
No  summary  order  as  to  sums  already  disbursed,  §   1612,  p.  979. 
Sales   by   assignee  under  void   assignment,   §   1613,   p.   980. 
Assignee  has  lien  upon  surrendered  assets  for  expenses  and  compensa- 
tion, §  1614,  p.  980. 
Assignment    must    be    "general"    and    "bona    fide,"    not    "partial"    nor 
"fraudulent,"  else  no  lien  for  reimbursement,  §  1615,  p.  981. 


GENERAL  INDEX.  2103 

CONFLICT  OF  JURISDICTION— Continued. 

Receivers  entitled  to  lien  for  expenses  and  compensation  where  receiv- 
erships nullified  by  bankruptcj',  §  1616,  p.  982. 

Only  expenses  and  compensation  for  services  beneficial  to  estate  and 
'reasonable,  allowed  reimbursement,  §  1621,  p.  986. 

Others'  rights  of  reimbursement,  to  be  worked  out  through  assignee  or 
receiver,  §   1622,  p.  987. 

How  assignee's  or  receiver's  rights  to  be  presented,  §  623,  p.  988. 

No  liability  on  assignee's  bond  on  superseding  of  State  Court's  custody, 
to  those  creditors  who  participate  in  defeating  assignment,  §  1624, 
*  p.  988. 

Mortgagees  in  possession  under  mortgage  executed  for  benefit  of  all 
creditors   assenting,    entitled   to   lien,   §   1617,   p.   984. 

Attaching  creditors  entitled  to  lien  where  attachment  lien  preserved  for 
benefit  of  estate,  §  1618,  p.  984. 

Where  attachment  really  for  benefit  of  all,  creditor  entitled  to  reimburse- 
ment, §  1619,  p.  984. 

Whether  extent  of  lien  may  be  fixed  by  State  court  before  surrender, 
§  1620,  p.  985. 

Basis  of  superseding  custody  of  assignee  and  receiver,  §  1603,  p.  967. 

Possession  under  general  assignment  superseded,  §  1604,  p.  975. 

Under  State   court  receiverships,  §   1605,  p.  975. 

General  assignment  not  per  se  illegal  nor  void  but  voidable  merely,  § 
1606,  p.  976. 

Unless  petition  filed  within  four  months,  followed  by  adjudication, 
State  court's  custody  not  superseded,  §  1607,  p.  977. 

If  filed  within  four  months  and  adjudication  occurs,  assignment  void, 
§  1608,  p.  978. 

Third  exception  to  rule  that  State  court  retains  jurisdiction  if  first  to  ob- 
tain it — State  insolvency  and  State  bankruptcy,  §   1625,  p.  988. 

Bankruptcy    and    insolvency    laws,    and    general    assignment    laws,    dis- 
tinguished, §  1632,  p.  1004. 
Various   holdings   as   to   what   amount   to   "Insolvency"    proceedings,    § 

1633,  p.  1007. 
Receiverships    and    Winding    up    of    Insolvent    Corporations,    whether 

insolvency  proceedings,  §  1634,  p.  1008. 
Procedure   to   procure   surrender   from   State   bankruptcy   or   Insolvency 

courts,  §  1635,  p.  1009. 
State   Court  receiver  may  be   enjoined,  §   1636,   p.   1009. 
Comity  requires   resort   first   to   State   tribunal,  §   1637,   p.   ]010. 
Basis  of  supersedence,   §   1626,   p.   990. 

State  Bankruptcy  and  Insolvency  laws  not  prohibited,  §  1627,  p.  991. 
But  suspended   during  existence  of   Federal   bankruptcy  law,  as   to   all 

classes  subjected  to  latter,  §  1628,  p.  993. 
State  insolvency  and  bankruptcy  laws  ipso  facto  suspended,   §   1629,   p. 

996. 
Not    suspended   nor   inoperative   as   to   classes    not    covered   by    federal 

Bankruptcy  Act,  §  1630,  p.  998. 
State  Bankruptcy  and  insolvency  laws   simply  held  in  abeyance,  §  1631, 

p.  1003. 
State    Courts    administer    Bankrupt    law   and   trustee,    intervening,   not    con- 
fined to  rights  accorded  by  State  law,  §   1597,  p.  964. 


'2104  GENERAL  INDEX. 

CONFLICT  OF  JURISDICTION— Continued. 

State  Court  First  Obtaining  Possession,  retains  jurisdiction,  except  in  three 

instances,  §  1582,  p.  949. 
State  Courts  permitted  to  Retain  Jurisdiction,  where  better  suited  to  adjust 

rights,  §  1584,  p.  958. 
Trustee's  intervention  in  State  Court  proceedings  does  not  oust  State  Court, 

§  1596,  p.  964. 
Voluntary  Surrender  of  Custody  by  State  Court,  §  1638,  p.  1010. 

"CONFORMITY" 

Certificate  of  • 

Xone  necessary  as  prerequisite  to  discharge,  §  2457,  p.  1487. 

CONNIVANCE 

Estoppel  of  Creditors  by,  see  "Estoppel." 

CONSENT 

To  Adjudication  before  Answer  day,  §  427,  p.  274. 

What    Constitutes,    to    Administration    of    Partnership    assets    in    individual 

bankruptcy,  §  2253,  p.  1374. 
What  Constitutes  consent  to  jurisdiction,  §  1698,  p.  1047;  §  2253,  p.  1374. 
Individual  Partner's,  not  requisite  for  Administration  of  Individual  Estate 

in    firm   bankruptcy,   §    2232,   p.    1366. 
To  Jurisdiction 

Mechanics'  and  subcontractors'  liens,  consent  to  payment  into  court,  of 

fund  affected  by,  §  1164,  p.  685. 
Without  consent.   State  court  proper  forum,  where  contractor  or  sub- 
contractor   bankrupt,    §    1165,    p.    685. 
Jurisdiction    by,    see    "Adverse    Claimant — Jurisdiction    by    Consent    Over." 
Property  Adversely   Held,  jurisdiction  not  conferred,  by  mere   proving  of 

different  claims,  §  1698,  p.  1048. 
Requisite    to    Administration    of    Partnership    assets    in    individual    bank- 
ruptcy, §  2251,  p.  1373;  §  2252,  p.  1374. 
To  Sale  Free  and  Clear  « 

Inchoate  Dower,  wife's  consent  requisite,  §  1974,  p.  1227. 
Lienholder's,  not  requisite,  §  1966,  p.  1225;  §  1979,  p.  1228. 

CONSIDERATION 
In  Composition 

Whether  always  to  be  money,  §  2369,  p.  1435. 

Need  not  be  tendered  back  on  setting  aside  composition,  §  2408,  p.  1453.. 
See,  also,  "Present  Consideration." 

Proof  of  Claim,  consideration  to  be  stated  in,  §  603,  p.  359. 
Revival    of    Discharged    debt,    consideration    not    requisite    to    support    new 
promise,  §  2715,  p.  1606. 

CONSIGNMENTS 

Pretended  to  be,  but  really  sales,  §  1228,  p.  726. 
Reclaiming  property  left  on  consignment,  §  1877,  p.  1165. 

CONSOLIDATION  OF  PROCEEDINGS 

Amendment   of  involuntary  petition  by   adoption  of  earlier  acts,   §    266,   p. 

197. 
Apportionment  of  attorney's  fees  in  cases  of,  §  2067,  p.  1283. 


GENERAL  INDEX.  2105 

CONSTABLE 

See  "Sherifif." 

CONSTITUTIONAL  LAW 

Xo  constitutional  right  to  discharge,  §   2466,  p.   1490. 
Delegation  of  Legislative  Power 

Bankruptcy  law  not  a,  §  11,  p.  27. 

Recognition   and   Enforcement  of  changes  in   State   Law,   as   to    Prior- 
ities and  Payment,  not  a,  §  11,  p.  27. 
Due  Process  of  Law,  Bankruptcy  Law  does  not  violate,  §  12,  p.  28. 
Impairment   of   Obligation   of   Contracts,    Discharge    in    Bankruptcy    not,    § 

13,  p.  28. 
Nullification   of  liens   by  legal  proceedings   does   not  impair   obligations   of 

contract,  nor  divest  vested   rights,   §   1465,   p.   871. 
Power  of  Congress  to  Impose  Enforcement  of  Bankruptcy  Laws  on  State 

Courts,  §  14,  p.  29. 
Power  to   Enact   Bankruptcj'-   Laws,    §    1,    p.   1. 
Right  of  trial   by  jury  not  violated  by   summary   orders   on   bankrupts   and 

others,  §  1834,  p.  1128. 
See  "Subject." 
Uniformity 

See  "Uniformity." 

CONSTITUTIONALITY 
Of  Bankruptcy  Act 

Not  unconstitutional  for  lack  of  uniformity  as  to  exemptions,  §  1023,  p. 
571. 

CONSTITUTIONAL  RIGHT 

None  to  a  Discharge,  §   2466,  p.   1490. 

Infprisonment  for  debt,  imprisonment  for  contempt  is  not,  §  1841,  p.  1136. 

As  to   Incriminating  questions   preserved,   §   1558,   p.   933. 

As  to  Producing  Incriminating  Documents,  as  defense  to  summary  order,  § 

1852,  p.  1152  n. 
To  Trial  by  Jury  not  violated  by  summary  orders  on  bankrupts  and  others, 

§  1834,  p.  1128. 

CONSTRUCTION  OF  STATUTE 

See  "Statutory  Construction." 

CONTEMPLATION  OF  BANKRUPTCY,  §  2544,  p.  1532  n. 

Liens   given   and  accepted  in,  when   not  protected,   §   1505,   p.   900. 

CONTEMPT 

Advice  of  Counsel,  §  2333,  p.  1417. 

Alimony,    arrest    of   bankrupt   for    contempt    for   failure    to    pay,    §    469,    p. 

305  n. 
Making   of   Certificate  of,  by   referee,   Judicial    act,   not   ministerial   duty,    § 

2337,  p.  1418. 
What  Constitutes  in  General,  §  2330,  p.   1414. 
For  Disobedience  of  Summary  Orders  on  bankrupts  and  others 
Punishment  for,  not  imprisonment  for  debt,  §  1841,  p.  1135. 
Degree   of  proof   requisite,   §   1842,   p.   1137;   §   1859,   p.   1157;    §   2340,   p. 
1419. 


2106  ge;ne;rai.  index. 

CONTEMPT— Continued. 

Proceedings  on,  different  from  those  for  order  of  surrender,   §   1857,   p. 

1155  n. 
Opportunity  must  be  given  to  Defend,  §   1858,  p.   1156;   §  2341,  p.   1419. 
Evidence  on  to  be  "Beyond  Reasonable  Doubt,"  §  1859,  p.  1157;   §  2340, 

p.  1419. 
Whether    evidence    on    w^hich    order    for    surrender    based,    may    be    re- 
examined, on  Contempt,  §   1857,  p.   1155. 
Disobedience  of  Subpoena,  contempt  for,  §   1576,  p.  944. 
Disobedience  of  Order,  while  Witness  on  Stand,   to  bring   document,  when 

not  contempt,  §  1576,  p.  944  n. 
Evidence  to  be  "Beyond  Reasonable  Doubt,"  §  2340,  p.  1419. 
Ignoring  Referee's  order,  and  Relitigating  same  matter  on   contempt  hear- 
ing,  §  2839,  p.   1659. 
Judge  to  hear  and  punish,   if  committed,   §   2338,   p.   1419. 
Jurisdiction   to  punish   for,   §   1922,   p.   1196. 
Opportunity   to   be   given   to   show   inability   to   comply   with    order,   §   2341, 

p.   1419. 
Of  Other  Courts,  whether  arrest  for  within  protection,  §  469,  p.  305. 
Power  to  commit,  cautiously  exercised,  §  2339,  p.  1419. 
Not  in   Presence   of  Court,  §  2332,  p.   1417. 
Protection    from    arrest,    none    for    contempt    of   bankruptcy    court    itself,    § 

468,  p.  305. 
Before   Referee,  what  constitutes,   defined  by  statute,  §   2334,  p.   1417. 
Referee   no  Power  to   Commit  for,   §   2235,   p.   1418. 
Referee   simply  to   certify  facts   of  to   judge,   §   2336,   p.    1418. 
Restraining  order  not  prerequisite,  §  1923,  p.  1196. 
Review  of  Refusal  to  certify,  §  2342,  p.  1419. 
Reviewable,  not  by  Habeas  Corpus,  §  2343,  p.   1419. 
Reversal  of   order  of  District  Judge,   none   except   for   Clear   Error,   §   2.^44, 

p.  1419. 
"Willfully'  evasive"  or  "Flagrantly  false"  testimony  in  face  of  Court,  §  15'33, 
p.   942;    §   2331,   p.    1416. 

CONTINGENT  CLAIM 

Bankrupt's   Guaranty  of  Dividends  not  yet  declared  nor   due,   §   650,  p.   390. 
Bankrupt  as   Principal — surety  is   creditor  before   default   and   from   date   of 

signing,  §  644,  p.  384. 
Bankrupt   Surety,   Guarantor  or   Endorser,   §  643,  p.  383. 
Bond  for  Annuity,  annuitant  still  living,  §  651,  p.  390. 
Cosurety's    claim    for    Contribution   for    payments    after    bankruptcy,    §    649, 

p.   390. 
Contract  to  support  until  remarriage,  §  651,  p.  391. 
Whether  Counted  in,  in  determining  insolvency,  §  1366,  p.  794. 
Discharge  of,  §  2736,  p.  1613. 
Endorsers,  sureties,  etc.,  for  bankrupt,  impliedly  excepted  by  statute,  §  642, 

p.   383. 
Not   to   be    Liquidated    and    Proved   under    §    63    (b),    where    not    otherwise 

provable,  §  711,  p.  427. 
Obtaining  of  Judgment  prerequisite  to  liability  on  bond,  §  648,  p.  389. 
Where  Principal's  liability  not  provable  in  favor  of  creditor,  not  provable  in 

favor  of  surety,  §  646,  p.  388. 
Not  Provable,  §  640,  p.  381. 


GENERAL  INDEX.  2107 

CONTINGENT  CLAIM— Continued. 

Not  Sufficient  for  Petitioning  Creditors'  claim,  §  230,  p.  179. 

Sureties   for   bankrupt's  faithful   discharge   of  duty,  where  no   default   until 

after  petition  filed,  not  provable,  §  647,  p.  389. 
Surety  paying  principal's  debt  after  principal's  bankruptcy,   §   645,  p.   386. 
Test  of  contingency,  §   641,  p.   382. 

CONTINUING  BUSINESS 

See  "Business — Conducting  of." 

CONTINUING  CONCEALMENT 

As  Bar  to  Discharge,  §  2498,  p.  1506. 

Brings  act  of  bankruptcy  within  four  inonths  period,  §  183,  p.  152. 

As  a  Crime,  §  2319,  p.  1410. 

"CONTINUING  CONSENT,"  §  136,  p:  119. 

CONTINUING  CONTRACT 
To  Buy 

Damages  for  breach  of,  provable,   §  689,  p.  417. 

But    not    Provable,    unless    obligation    renounced    or    bankruptcy    itself 
operates  as  breach,  §  690,  p.  417. 
To  Supply  goods 

Damages  for  breach  of,  provable,  §  685.  p.  415;  §  687,  p.  416. 

"CONTINUING  REPRESENTATIONS" 

Bar  to  discharge,  when,  as  "false  statements  in  writing  to  obtain  property 
on  credit,''  §  2570,  p.  1544. 

CONTRACT 
To  Buy 

See   "Contracts   of  Sale;"   "Sale,    Contracts   of." 

Cont,inuing   Contracts   to   Buy,   §   689,   p.   417. 

Trustee  bound  by  bankrupt's,  §  1147,  p.  677. 
Express  or  Implied 

Must  be  owing  at  time  of  filing  bankruptcy  petition,  else  not  provable, 
§  672,  p.  407. 

Is  Provable,  §  694,  p.  420. 
Involving  Personal  Skill  or  Confidence 

Does  not  pass  to  tri'istee,  §  994,  p.  554;  §  1021^  p.  570. 

Insurance  Agent's-  contract,  §  994,  p.  555. 

Personal  right  to  purchase,  nonassignable,  does  not  pass,  §  995,  p.  555. 
For  Liens  on  After-acquired  property 

Dissolved  by  discharge,  if  mergeable  in  provable  debt  at  time  of  bank- 
ruptcy, §  2676,  p.  1591. 

Where  lien  exists   in   prjesenti   before   bankruptcy,   though   property   ac- 
quired afterwards,  discharge  does  not  afifect,  §  2677,  p.  1591. 
Rights  of  Action  on,  pass  to  trustee,  §  1019,  p.  568. 
Of  Sale 

Damages-  for  breach  of,  provable,  §  685,  p.  415. 

Trustee  bound  by  bankrupt's,  §  1147,  p.  677. 

CONTRACT  TO  SUPPLY  GOODS 

See  "Contract  of  Sale;"  "Sale,  Contract  of." 


2108  '  GENERAL  INDEX. 

CONTRACT  TO  SUPPORT  WIFE 

Is  Provable  debt,  as  long  as  wife  lives,  §  651,  p.  391. 
Until  Remarries,  not  a  provable  debt,  §  651,  p.  391. 
Trustee  bound  by  bankrupt's,   §  1145,  p.  676. 

CONTRACTORS  AND  SUBCONTRACTORS,  §  672,  p.  409. 

CONTRACTUAL  RELATIONS 

Not  affected  by  Adjudication,  unless  merged  in  provable   Debts,   §   451,   p. 

297. 
See  "Claim — for  Rent — Does  Bankruptcy  Sever  Relations  of  Landlord  and 

Tenant." 
See  "Landlord  and  Tenant — Does  Bankruptcy  Sever  Relations  of." 
Not   dissolved  by  adjudication   of  bankruptcy  or  discharge,   §   451,   p.   297; 

§  641,  p    382;   §  1118,  p.  639;   §  2729,  p.   1609;   §  2675,  p.   1591. 
Not  dissolved  by  discharge,  unless  mergeable  in  "provable"   debt  at  time 

of  bankruptcy,  §   2675,  p.   1591;   §  2729,  p.   1609. 

CCNTRIBUTTON 

Cosurety's  claim  for,  for  payments  after  bankruptcj',   §  649,  p.   390. 
Partner's  right  of  for  paying  firm  debts,  provable  in  other  partner's  bank- 
ruptcy, §  2259,  p.  1385. 

CONTROVERSIES 

Arbitration  of,  see  "Arbitration  of  Controversies." 
Compromise  of,  see  "Compromise  of  Controversies." 

"CONTROVERSIES  ARISING  IN  BANKRUPTCY  PROCEEDINGS" 

Appeals  in.  see  "Appeal  and  Error — In  Circuit  Court  of  Appeals — In  Con- 
troversies  Arising  in   Bankruptcy   Proceedings." 

Appeals  to  supreme  court  in,  where  would  have  jurisdiction  in  "other 
cases,"  §  3016,  p.  1745;  §  3018,  p.  1746;  §  3019,  p.  1746. 

Distinguished  from  "proceedings  in  Bankruptcy,"  §  1685,  p.  1036;  §  2864, 
p.    1678. 

Plenary  suits  by  trustees  against  adverse  claimants  are,   §  1691,  p.  1042. 

Persons  not  Parties,  not  Bound,  §  19,  p.  36. 

Reviewable  in  Supreme  Court  on  Certiorari,  §  3025,  p.  1749. 

Time  for  51ing  petition  for  review  in,   §  2998,  p.   1737. 

CONVERSION 

By  Agents,  Partners,   Commission  men,   etc.,  not  excepted  from   discharge 

as  being  in  "fiduciary  capacity,"  §  2785,  p.  1629. 
Converted  Property  or  its  traced  Proceeds,  reclaimable,  §  1882,  p.  1168. 
Of  Shares  of  Stock  by  Bankrupt  Broker,  §  804,  p.  470  n. 
"Tracing  Trust  Funds,"  §  1883,  p.  1169. 

CONVERTING  NONEXEMPT  PROPERTY  INTO  EXEMPT  ON  EVE  OF 
BANKRUPTCY,  §  1046,  p.  594. 

CONVICT  LABOR 

Claims  by  county  for  hire  of,  §  808,  p.  471. 

■'CONVINCING"  EVIDENCE 

When  necessary  on  discharge,  §  2639,  p.  1579. 


GENERAL  INDEX.  2109 

COPYRIGHTS 

Pass  to  trustee,  §  958,  p.  536. 

CORPORATION 

Actual    occupation   governs   whether   subject   to   involuntary   bankruptcy,    § 

87,  p.  85. 
Cannot  be  a  private  banker,  §  79,  p.  79. 
Ceasing  to  do  business,  after  Commission  of  act  but  before  petition  filed, 

jurisdiction  not  defeated,  §  97,  p.  93. 
Classes  of,  included  and  excluded,  in  involuntary  bankruptcy,  §  80,  p.  80. 
Dissolution   of  after   commission  of  act  but  before  petition   filed,  jurisdic- 
tion not  defeated,  §  97,  p.  93. 
Dissolution  of  after  Filing  of  Petition,  no  abatement,  §  101,  p.  99. 
Engaged  in  Different  Occupations   some  within  and  some  without  classes 

subject  to  Involuntary  Bankruptc}%  §  86,  p.  85. 
Entitled  to  discharge,  §  2419,  p.  1464. 
Imputed  acts  of  bankruptcy  by  agents  of,  §  171,  p.  144. 
Insolvent,  sales  by,  §  1734,  p.  1067  ^n. 
Jurisdiction   over   more   limited   under  act   of   1898   than   under   act   of   1867, 

§    81,   p.    80. 
Moneyed,  business  or  commercial   corporations,  etc.,  subject  to  involuntary 

bankruptcy  uuder  act  of  1867,  §  81,  p.  80. 
Not  within  statutory  classes,  are  exempt  from  involuntary  bankruptcy,  §  94, 

p.  87. 

Officers  of 

Authoritj'  of  to  file  petition,  §  219,  p.  175. 

Presumption  of  authority  of,  to  execute  transfer,  §  1734,  p.  1067  n. 
Assuming  Functions  of  Board  of  Directors,  when  bind,  §  1204,  p.  698. 
Are  the  "Bankrupt,"  §  1527,  p.  914;  §  1821,  p.   1118;  §  456,  p.  320. 
Not  the  "Bankrupt"  in  Criminal  prosecutions  for  Concealment    of  As- 
sets, §'2326,  p.  1412. 
Embezzlement,   defalcation,   or   fraud   by,   whether   excepted   from    dis- 
charge,  §   2787,   p.   1631;.  §   2784,  p.   1629. 
May  b3  indicted  for  false  oath,  §  2325,  p.  1412. 
Subject  to  summary  jurisdiction,  §  1821,  p.  1118. 

Witne.=s  fees,  whether  are  entitled  to,  §  2126,  p.  1309;  ,§  1527,  p.  914. 
Powers. of  attorney  for,  to  contain  oath  of  official  capacity,  §  587,  p.  353. 
"Principally"  engaged,  must  be,  in  order  to  be  subject  to  involuntary  bank- 
ruptcy, §  85,  p.  84. 
Whether    Public   corporations    chargeable    with    "reasonable    cause    for    be- 
lief," §   1414,  p.  838. 
Quasi  public  corporations  not  subject  to  involuntary  bankruptcy,  §  89,  p.  86. 
Subject  to  Bankruptcy,  see  "Involuntary  Bankruptcy." 
Voluntary  Bankrupt,  Corporation  may  not  be  a,  §  37,  p.  55;  §  44,  p.  58. 
"Written  Admissions"  by,  not  contrary  to  prohibition  of  voluntary  bank- 
ruptcy oi,  §  168,  p.  143. 
"Written  i\dmissions"  by  Directors  of,  as  Acts  of  bankruptcy,  §  167,  p.  140. 

COSTS 

Of  Administration 

See  "Costs  and  Expenses  of  Administration." 
On  Appeal  and  Error,  §  2999,  p.  1737  n. 

Attachmen;    or   Execution   dissolved,   §   693,   p.   420;   §   1485,   p.    884;    §   1487, 
p.  885. 


2110  GEXERAI.  INDEX. 

COSTS — Continued. 

Awarding,  against  creditors,  §  2661,  p.  1579. 

See  "Deposit  for  Costs." 

On  Discharge,  §  2658,  p.  1578. 

On  Dismissal  of  Voluntary  petition  after  hearing  merits,  §  417,  p.  269. 

On  Dismissal  of  Involuntary  petition  for  want  of  jurisdiction,  §  418,  p.  269. 

Expenses  of  receivership  taxable  against  petitioning  creditors,  §  398,  p.  259. 

Incurred  prior  to  petition,  dischargeable,  §  2737,  p.  1614. 

Incurred  ifter,  whether  discharged,  §  2738,  p.  1614. 

No  Judgm.ent  in  personam  for,  against  parties  in  summary  proceedings  not 

personally  appearing,  §  2009,  p.  1246. 
Jurisdiction  to  tax,  §  2001,  p.  1244. 
Lien  for,   falls   where   lien   by   legal   proceedings   nullified   by  bankruptcy,   § 

1485,  p.  ^84;  §  693,  p.  420. 
Part  incurred  before  filing  of  petition,  part  afterward,  §  692,  p.  419. 
Power  to  award  inherent,  §  2659,  p.  1578. 
"Provable"  Claim,  §  691,  p.  419;  §  1487,  p.  885. 

Preliminary  deposits  for  referee,  clerk  and  trustee,  §  2012,  p.  1249. 
Referee  may  tax,  §  535,  p.  331;  §  1995,  p.  1234;  §  2002,  p.  1244. 
Remain   Lien   in   cases   of   Preservation   of   liens   by   legal    proceedings   for 

benefit  c\  estate,  §  1490,  p.  888. 
Retaining  of  property  till  costs  paid,  where  lien  by  legal  proceedings  nulli- 
fied by  bankruptcy,  not  proper,  §  1486,  p.   885. 
On  Selling  Free  from  Liens 

Each  fund  to  bear  its  own  expense  and  costs,  §  1990,  p.  1233. 
Proportionate  part  not  to  be  charged  against  each  lien,  §  1991,  p.   1233. 
Expenses  first  deducted  and  liens  paid  out  of  remainder,  §  1992,  p.  1233. 
General  Costs  of  Administration  not  chargeable,  §  1993,  p.   1233. 
Trustee's  Attorney's  Fees  and  Expenses  benefiting  entire  fund  chargea- 
ble, §  1994,  p.   1234. 
Attorney's   Services   in    Litigating  liens,   not    chargeable,    against   fund, 

§  1994,  p.   1234. 
Referee  has  authority  to  tax,  §  1995,  p.  1234. 
What  costs  and  expenses  are  taxable,  §  1996,  p.  1234. 
Sheriff  no  right  to  retain   creditor's  costs   out   of  proceeds,  where  lien  by 

legal  proce.edings   nullified  by  bankruptcy,   §.  1486,  p.   885. 
No   Shownig  of  cause  requisite  where  Taxed  against   Unsuccessful   Party, 

§  2004,  p.  1245. 
Special  Master  on  discharge,  §  2660,  p.  1578. 
In  Suits  brought  by  receivers  and  trustees  against  third  parties,   §  1755.  p. 

1073. 
May  be  Taxed  against  Successful  Party  for  cause,  §  2003,  p.  1244. 
Trustee   not   to   refuse   to   set   apart   exemptions    until   costs   paid.    §    109i, 
p.   617. 

COSTS  AND  EXPENSES  OF  ADMINISTRATION 

"Actual  and  Necessary  cost  of  preserving  estate  subsequent  to  liling  peti- 
tion," §  2013.  p.  1250. 

What  included  in   term,   §   2014,   p.    1250. 

Appeal  and  review  of,  §  2120,  p.  1308;  §  2287,  p.  1398;  §  2907,  p.  1704. 

Appealability  of,  §  2907,  p.  1704. 

In   Composition   cases,   §   2368,  p.   1435. 

No  costs  :n  Personam  against  parties  in  Summary  proceedings,  not  per- 
sonally appearing,  §  2009,  p.  1246. 


GENERAL  INDEX.  2111 

COSTS  AND  EXPENSES  OF  ADMINISTRATION— Continued. 

E(iuit\'  rules  to  govern  order  of  precedence  in,  §  2020,  p.  1256. 

Expense  of  Contesting  Claims  before   Election   of  Trustee  not  chargeab!  ? 

against  estate,  §  823,  p.  477;  §  2008,  p.  1246. 
General,  rot   chargeable   against   fund   on   Selling   Free   from   Liens,   §   1993, 

p.   1233. 
Include  what,  §  2019,  p.   1256. 
Indemnifying   court   officers   and   advancing   moneys    for    expenses,    §    2021, 

p.  1257. 
Jurisdiction  to  tax,  §  2001,  p.  1244. 
X"o  Part  cf  general  costs  of  administration  to  be  taken  out  of  property  not 

forming  part  of  assets  for  administration,   §   2010,   p.   1246. 
Policy  of  Act,   Strictest   economy,   Introd.    (m),   p.   14;   §   24,  p.   39;    §   2011, 

p.   1247;   §  2048,  p.   1271;   §  2121,   p.   1308. 
Preliminary   deposit  for  referee,   clerk  and  trustee,   §  2012,  p.   1249;   §   2023, 

p.  1257. 
Priorities    in,    §   2012,   p.    1249;    §    2013,    p.    1250;    §    2015,    p.    1252;    §   2019,   p. 

1256;    §    2027,    p.    1258. 
Probable   Order  of  priority,   §  2027,  p.   1258. 
.A.re  "Proceedings  in  bankruptcy  proper,"  §  2868,  p.   1683. 
Reimbursement 

Of  Attorney's  Fees  paid  by  bankrupt  in  advance,  none,  §  2024,  p.  1258. 
Of  Bankrupt,  none  for  care  of  exempt  property,  §  2025,  p.  1258. 
Of   Expenses   advanced,   §  2022,   p.    1257. 

Follows   Order   of  Priority  of   Expenses    themselves,   §   2026,   p.   1258. 
Of   Original    Deposit,    none    except    to    petitioning   creditor,    §    2023,    p. 
1257. 
Rent 

See  "Use  and  Occupation." 
See  "Rent." 
See  "Leasehold." 

See  "Trustee  in  Bankruptcy^Expenses  of." 
Review  of  Orders  in 

Need  not  be  in  trustee's  name,  where  trustee's  own   expenses  in   con- 
troversy, §  2828,  p.   1655. 
Reviewable  by  petition  to  review,  §  2932,  p.  1715;  §  2933,  p.  1715. 
Stenographer's  fees  taxable,   §  2005,  p.   1245. 

Stenographer,  emplo3^ment  of,  at   expense  of  estate,   §  2006,  p.  1245. 
Stenographer,   compensation   of,   §   2007,   p.   1245. 
Taxed  by  Referee,  §  2002,  p.  1244. 

COSURETY 

Cosurety's  claim  for  contribution  for  payments  after  bankruptcy,  §  649,  p. 
390. 

COUNSEL  FEES  AND  EXPENSES 

Where   property   seized  before  adjudication,   §  348,   p.   234;   §   349,   p.   235;   § 
.     352,    p.    236. 

COUNTERCLAIM 

See  "Set-off  and  Counterclaim." 

• 

COUNTERSIGNING 

Disburscnn.'ius  by  trustee  to  be  by  check,   countersigned,  §  912,  p.   520. 


2112  GENERAL  INDEX. 

COURT 

To  appoint  trustee  where  no  majority.  §  869,  p.  497. 

To  appoint  trustee  where  creditors  fail  altogether  to  act,  §  870,  p.  498. 

Bankruptcy    court    may    make    call    for    unpaid    stock    subscription,    §    977, 

p.  547. 
Bankruptcy  Courts  not  Inferior  Courts,  §  28,  p.  45. 
Duty   of    to    protect   bankrupt    from    arrest    on    dischargeable    debt,    §    466, 

p.    305. 
•    As   Established  by  first  English   Bankruptcy  Act,  34   Henry  VIII,   Introd. 

(g),  P-  6. 
In  General,  §  27,  p.  45. 

Jurisdiction  in  Bankruptcy  Limited,  §  29,  p.  45. 
See  "Referee." 

Referee,  upon  reference,  becomes  the,  §  523,  p.  324. 
Referee  nr  jurisdiction  to  enjoin  court  or  oflicer,  §  2701,  p.   1601. 
May  Subirit  issue  of  fact  to  jurj',  §  404,  p.  263. 
Trial   in  general   to  be  by   court,   §   403,  p.  263. 
U.   S.  District  Courts  created  Bankruptcy  Courts,  §  28,  p.  45. 

COURT    OFFICERS 

See  "Sheriii." 

CREDIBILITY 

Of  witnesses,  see  "Witnesses." 
CREDITOR 

"Armed  with  Process" 

"Arming   with    Process"    not    requisite    by    State    law,    not    requisite    in 

bankruptcy,   §   1210,   p.   70S. 
"Creditor"  same  as  in   State  law,  as  to  "arming  with  process,"   §   1209, 

p.   706. 
"Equitable    levy,"   whether   bankruptcy   operates    as,    §    1212,   p.    709;    § 

1213,  p.  713;  §  1214,  p.  714. 
Necessity  of  existence  of,  to  avoid  unfiled  or  unrecorded  liens,  §   1242, 

p.   736;   §   1233,  p.   733. 
Permitting   creditors   to   levy   after   bankruptcy   in   order   to   "arm   with 

process,"  §  1239,  p.  735. 
Prior  general  assignment,  whether  effective  to  avoid  liens,  recorded  be- 
fore bankruptcy  but  not  until  after  assignment,  §  1270,  p.  749. 
Title  of,  taken  by  trustee,  §  1208,  p.  704. 
May  be  Candidate  for  Trustee,  §  883,  p.  504. 
Contesting  each   other's   claims  before   election   of  trustee,   not   chargeable 

against   estate,   §   2018,   p.   1254;   §  2057,   p.   1279;   §   2071,   p.   1285. 
With  Disputed  claim  incompetent  to  be  trustee,  §  890,  p.  509. 
Independent  plenary  suits  by  creditors  against  adverse  claimants 

Contesting   Unjust    Claims   before   Election   of  Trustee,   no   reimburse- 
ment  for,   §  2018,   p.   1254;   §  2057,  p.    1279. 
Must   have   resulted   to  benefit   estate,   else  no   reimbursement,   §    1714, 

p.  1057. 
Reimbursement    of    Creditor    where    litigation    results    in    recovery    of 
Concealed   Assets,   §   1713,   p.   1057;    §   2015,   p.   1252;   §   2016,   p.   1253; 
§  2018,  p.   1255. 
"Transferred"   or  "Concealed"  by  "Bankrupt,"   else  no   reimbursement, 

§  1715,  p.  1058. 
Until  Trustee  elected,  may  be  maintained,  §  399,  p.  260. 


GENERAI,  INDEX.  2113 

CREDITOR— Continued. 

After    Trustee    elected,    not    maintainable,    §    1712,    p.    1056;    §.    1718,    p. 

10G3. 
Must  be  for  benefit  of  all,  §  400,  p.  261. 

Not  maintainable  in  U.  S.  District  courts,  §  401,  p.  262;  §  1716,  p.  1058. 
No    Jiiit    to    maintain   status   quo   for   filing   bankruptcy   petition,    §   402, 
p.  262. 
Holding   Lien  by   Legal  Proceedings 

Competent   as   petitioning   creditor,    §   234,   p.    183. 
Votes   only  if   Surrenders    Lien,   §   579,   p.   349. 
May  ask  for  general  examination  of  bankrupt  and  witnesses,  §  1529,  p.  914. 
May    examine    bankrupt    and    witnesses    before    filing    claim,    though    proof 

may  be  required,  §  1532,  p.  915. 
.May  except  to  Trustee's   Report   of  Exempted   Property,   §   1081,  p.   613. 
May  petition  for  Injunction,  §  368,  p.   244. 
Qualifications   of  for  voting  at  meetings,  §  573,  p.  348. 
Reimbursement   of,   where   concealed   assets   recovered   by,    §   2015,   p.   1252; 

§  2016,  p.  1253;  §  2073,  p.  1285. 
When  Stockbroker's  customer  becomes  creditor,   §   1313,  p.  769. 
Subsequent,   see   "Subsequent   Creditors." 

Transfer  must  be  to   a  "creditor"   else   no  preference,  §   1304,   p.   766. 
Use  of  Trustee's  Name  by,  where  trustee  refuses  to  sue,  §  1719,  p.  1061. 
Use   of  Trustee's   Name   by,   where   trustee   refuses   to   Object  to   Claim,   § 

827,  p.  479. 
Use   of  Trustee's    Name   by,    where   trustee    Refuses   to   Appeal,   §   2830,   p. 
1655. 

CREDITORS'   BILLS 

Instituted  before  four  months  not  superseded  by  bankruptcy,  §  1593,  p.  963. 
Substitution  of  trustee  in,  pending,  §  1646,  p.  1012. 

CREDITORS'  MEETINGS 

See  "Meeiiiigs  of  Creditors." 

CRIME 

Bankrupt  not  protected  from  arrest  upon  Criminal  Charge,  §  467,  p.  305. 

CRIMES  AGAINST  THE  BANKRUPT  ACT 

Acts  committed  before  bankruptcy  not  within  statute,  §  2318,  p.   1410. 

Advice  of  Counsel,  §  2329,  p.  1413. 

Bankrupt  alone  indictable  for  "Concealment  of  Assets"  from  trustee,  § 
2326,  p.  3412. 

"Concealment  of  Assets,"  essential  elements  in  proof  of,  §  2328,  p.  1413. 

Continuing  Concealment,   §  2319,  *p.   1410. 

Committed  before  Trustee  appointed,  whether  a  crime,  §  2320,  p.  1411. 

"False  Oath,"  essential  elements  in  proof  of,  §  2327,  p.  1413. 

Indictment  to  be  Specific  and  to  contain  all  essential  elements,  §  2321,  p. 
1411. 

Indictment  for  False  Oath  to  aver  falsity  and  scienter,  §  2322,  p.   1412. 

Immunity  horn  use  of  bankrupt's  testimony  effectual  obstacle  to  convic- 
tion for  perjury,  §  2324,  p.   1412. 

Others  than  Bankrupt  Indictable  for  "False  Oath,"  §  2325,  p.  1412. 

Section  29  penal  and  to  be  strictly  construed,  §  2317,  p.   1410. 

What   are.   §   2316,  p.   1409. 

2  Rem  B— 58 


2114  GENERAL  INDEX. 

CRIMINAL   CONVERSATION 

Judgment:-,   for,   not   discharged,   §   2754,  p.   1620;   §   2760,  p.   1621. 

CRIMINAL  PROCEEDINGS 

Bankrupt's  testimony  not  to  be  used  in,  §  1556,  p.  931;  §  2324,  p.   1412. 
Schedules  of  Bankrupt  not  to  be  used  before  Grand  Jury,  §  2323,  p.  1412. 

CROPS 

When  will  pass  to  trustee,  §  972,  p.  545. 

CROSS-EXAMINATION 

Of  Adverse  party.   State  statutes   permitting,  not  followed,   §   1759,  p.   1073. 

See  "General  Examination  of  Bankrupts   and  Witnesses." 

Whether    may   call    Opposite    Party   as    W'itness    and    Cross-Examine    him, 

and  not  be  bound,  §  1549,  p.  926. 
See   "Witnesses." 

CURTESY 

Estates    by   curtesy    initiate    do   not   pas^,    §    971,    p.    544. 
Estates  by  curtesy  consummate  do  pass,  §  971,  p.  544. 

"CUSTODIA  LEGIS" 

Whether  Adjudication  of  bankruptcy,  "ipso  facto"  passes  bankrupt's  prop- 
erty into,  §  1808,  p.  1108. 
Adverse  claimants  restrained  from  interfering  with,  §   1906,  p.   1190. 
What   Constitutes,    §   1807,   p.    1101. 
Test   of  summary  jurisdiction   of  bankruptcy   court,   §   1796,   p.    1088. 

CUSTODIAN 

In    possession    under    nullified    legal    proceedings,    not    adverse    claimant,    § 
1827,    p.    1122. 

CUSTODY 

Voluntary  surrender  of  by  State  Court,  §  1638,  p.  1010. 

CUSTODY   OP  STATE   COURT 

See   "Conflict   of  Jurisdiction." 

DAMAGES 

Accruing  after  bankruptcy 

Liquidation  of,  §  707,  p.  425. 
For  Breach  of  Contract 

By   Receiver,   §   388,   p.   255   n. 

Of  Sale,  see  "Sale,  Contracts  of.'^ 

Of  Employment,  see  "Employment.   Contracts   of." 

Of  Continuing  Contracts,  see  "Continuing  Contracts." 
On  Injunction   Bond,   §  370,  p.  245. 

Property  wrongfully  Seized  on  Warrant,  damages  for,  §  348,  p.  234;  §  349,  p. 
235;  §  350,  p.  236;  §  351,  p.  236;  §  352,  p.  236;  §  353,  p.  237. 

DATE 

Of  Adjudication 

Is  date  of  Cleavage  of  Title,   §  1117,   p.  639. 
Of  Insolvency  and  "Fair  Valuation" 

Date  immediately  preceding  transfer  or  levy,  §  1364,  p.  793. 


GENERAL  INDEX.  2115 

DEATH 

Of  Bankrupt 

After  Commission  of  Act,  but  before  Filing  of  petition,   §  96,  p.  92. 

After   filing   of   petition   no   abatement,    §   98,   p.    94;    §   2421,   p.    1465;    § 
2474,   p.   1494. 

Before    Redemption    of    Life    Insurance    policy    accomplished,    §    1017, 
p.   567. 

Widows'   and   Children's   Rights,   see   "Widows'   and   Children's   Allow- 
ances."   Also,  see  "Dower." 

Exemptions   not   defeated   though   death   occurs    before    exemptions    set 
apart,  §  1025,  p.  576. 

Right   to   discharge   not   affected   by,    §   2421,   p.    1465;    §   2474,   p.    1494; 
§  98,  p.  94. 

Opposition  to  discharge  not  abated  by,  §  2456,  p.   1487. 
Of  One  Partner 

Jurisdiction  over  Partnership   not  defeated,  §  96,  p.  93. 
Of  Trustee 

Pending  Suit  not  abated  by,  §  947,  p.  526. 

Creditors  to  elect  new  trustee,  §  948,  p.  526. 

Before  Adjournment  of  meeting  at  which   elected,   §   947,   p.   526    n. 

DEBT 

Dischargeable 

Protection  from  arrest  on  process  issued  upon,   see   "Protection  from 
Arrest."     Also,  see   "Dischargeable   Debt." 
Existence  of  to  be  shown  in  voluntary  petition,   §   191,  p.   158. 
Includes  demands  and  claims  which  are  not  technically  debts,  §  627,  p.  372. 
Must  be  pre-existing  debt  to  be  preference,  §  123,  p.  Ill;  §  1314,  p.  770. 
Voluntary  Bankrupt  Must  Owe  "Debt,"  §  41,  p.  57. 
What  is  meant  by,  §  626,  p.  372. 
What  is  provable  debt,  see  "Provable  Debts." 
Whether  a  "debt"  or  not  dependent  on  state  law,  §  631,  p.  375. 
Whether  tax  is  a,  §  2745,  p.  1616. 

"Owing  but  not  yet  due,"  how  to  be  set  forth  in  proofs  of  claim,  §   599, 
p.  357. 

DEBTORS  OF  BANKRUPT 

Are  "Adverse  Claimants,"  §  1680,  p.  1034. 

Not  Proper  Parties  to  Object  to  Claims,  §  821,  p.  476. 

Actions   in   personam   against,   not   to   be    brought   in   bankruptcy    court,    § 

1694,  p.   1043. 
May  confer  jurisdiction  on  bankruptcy  cotirt  by  consent,  §  1697,  p.  1047. 
No  summary  jurisdiction  over,  §  1680,  p.  1034;   §  1796,  p.   1089. 
Trustees  may  institute  suits  against,  §  1724,  p.  1062. 

DECEDENT 

Not  subject  to  Involuntary  Bankruptcy,   §   55,  p.   64. 

"DECISION" 

Of  lower  court,  insufficient  as  "findings"  or  "order"  on  review,  unless  made 

part  of  record,  §  2956,  p.  1724. 
Of  low^er  court  may  be  "looked  to,"  on  review,  §  2957,  p.  1725. 
No  review  of,   §  2840,  p.   1660. 


2116  ge;ne;rai,  index. 

DECREE 

See  "Adjudication  of  Bankruptcy." 

DEDUCTION    OF   SECURITIES 

Accommodation  notes  of  third  parties  given  as  collateral  not  to  be  de- 
ducted,  §   752,  p.   446. 

Claim  allowable  only  after,   §  751,  p.  446. 

None  for  amount  paid  by  surety,   §§   757,  p.   450. 

None  for  property  of  principal  held  by  creditor,  where  surety  bankrupt, 
§  758,  p.  450. 

Notes  of  Third  Parties  Endorsed  by  bankrupt  as  collateral,  to  be  deducted, 
§  752,  p.   446. 

Orders  on  Third   Party  by   Bankrupt,   deducted,   §   754,  p.   447. 

Preliminary  determination  of  value  of  securities  for  voting  purposes,  § 
763,  p.  454. 

Securities  not  on  bankrupt's  property  not  to  be  deducted,  §  756,  p.  448. 

Securities  on  exempt  property  to  be  deducted,   §   755,  p.  447. 

Securities  surrendered,  claim   allowed  without  deduction,   §   767,   p.   455. 

Whether  holder  of  note  containing  waiver  of  exemptions  a  secured  cred- 
itor, whose  security  to  be  deducted,  §  1034,  p.  585  n. 

DEED 

Form    of    trustee's,    §    1998,    p.    1236. 

Relating  to  bankrupt's  property  passes  to  trustee,  §  955,  p.  536. 

If  not  so   relating,  does  not  pass,  §  957,  p.  536. 

DEED  BY   WAY   OF   SECURITY,  §   1885,   p.   1180    n. 

DEFALCATION 

Whether  paying  up  defalcation  is  preference,  §  1309,  p.  767. 

While   officer  or  in   fiduciary  capacity  not  discharged,   §  2783,  p.   1628. 

DEFAULT  ADJUDICATION 

Jurisdiction  to  make,  §  424,  p.  273. 

By  referee  in  Judge's  absence  or  inability,  §  425,  p.  273. 

A  judgment  on  merits,  binding  on  all,  §  426,  p.   274. 

DEFENSE  TO  BANKRUPTCY  PETITION 

Solvency  as  clefense  to  first  act,  §  116,  p.  109. 

DEFENSES  TO  PETITION  FOR  ADJUDICATION 

Defense  of  Solvency  not  Available  to  Creditors  against  Partnership  Peti- 
tion by  One   Partner,  §  43,  p.   58. 

"DEFINITE"  AND  "CERTAIN" 

Facts  to  be  Pleaded  definitely  and  certainly,   §  257,  p.  192. 

DEFINITION 

Of  Bankruptcy  Law,  §   16,  p.  31. 
"Clerks,"  §  2169,  p.   1336. 
"Insolvency,"   §   1343,   p.   786. 
"Manufacturing,"   §   84,  p.   83. 
"Preference,"   §   1276,   p.   754. 
"Servants,"  §  2169,  p.   1336. 


GENERAL  INDEX.  2117 

DEFINITION— Continued. 

"Trading"   and   "Mercantile    Pursuits,"    §    83,    p.    82. 
"Transfer,"  §  1330,  p.  779. 
"Wage   Earner,"  §  2171,  p.   1338. 
"Workman,"  §  2169,   p.   1336. 

DEFRAUD 

Intent   to,   not   requisite   in   proof   of  assignment   as    Act   of   Bankruptcy,   § 
148,  p.  129. 

DEGREE  OF  PROOF 

On  summary  orders  upon  bankrupts  and  others,   §  1842,  p.  1137. 

DELAY  IN  FILING  PETITION  AND  SCHEDULES  AFTER  VERIFICA- 
TION, §  :382,  footnote. 

DELEGATION  OF  LEGISLATIVE  POWER 

See   "Constitutional    Law." 
DELIVERY 

Sufficient  to  pass  title    to  goods  sold,  pledged  or  in  process  of  manufacture, 

§  1145,  p.  676;  §  1146,  p.  676. 
Trustee  bound  by  bankrupt's  acts  of  delivery,  §  1145,  p.  676. 

"DEMAND" 

Meaning  of,  dependent  on  State  law,  §  631,  p.  375. 
Not  requisite  in  trustee's  suit  to  recover  Preference,  §   1769,  p.   1076. 
To  set  apart  exempt  property,  none  requisite,  §  1072^,  p.  611. 
Taxes,   whether  constitutes  a,  §   2745,  p.   1616. 

DEMURRER 

No  demurrer  to  answer,   §  332,  p.  226. 

To  involuntary  petition,  §  324,  p.  225. 

To   petitions   before   referees,   §   548,  p.   334  n. 

DEPLETION   OF  ASSETS 

Necessary  to  effect  Preference,  §  1278,  p.  756. 

Of  Individual  Estate,  not  preference  in  partnership  bankruptcy,  §  1291, 

p.   759. 
Of   Partnership,   where    partnership    not   in    bankruptcy,   but   assets   be- 
ing  administered   in   bankruptcy   of   member,    §    1290,   p.   759. 
Also,  see  "Preference — First  Element." 

Transfers    based    on    Present    Consideration,    not    preferences,    §    1295, 
p.   760. 

DEPLETION  OF  INSOLVENT  ESTATE 

Implied  in  preference  as  Act  of  Bankruptcy,  §  121,  p.  111. 

DEPOSIT 

On.  composition,  §  2364,  p.  1434;   §  2365,  p.  1434;  §  2366,  p.  1434;  §  2367,  p. 

1434;  §  2368,  p.   1435. 
Trustee's  duty  to  deposit  moneys   in  depository,   §   909,  p.   519. 

DEPOSIT  FOR  COSTS,  §  285,  p.  205. 

luinkrupt  giving  mortga<?e,  to  raise  money  to   make,   §   1504,  p.   900. 
Exempt   property  may  be  subject   to  payment   of  statutory  fees,   §   1093,  p. 
617  n. 


2118  GENERAL  INDEX. 

DEPOSIT  FOR  COSTS— Continued. 

On  Filing  petition,  §  2012,  p.  1249. 

In  Partnership  cases,  one  for  partnership  and  one  for  each  partner  adjudi- 
cated,   §    289,    p.    208. 

Return  of  deposit  in  involuntary  cases,  §  290,  p.  209;  §  2015,  p.  1252;  § 
2023,  p.   1257. 

Return  where  voluntary  and  involuntary  petitions  both  pending  and  ad- 
judication   on   voluntary,    §    291,   p.    210. 

No  return  of  deposit  in  voluntary  cases,  §  290,  p.  209;  §  2023,  p.   1257. 

DEPOSIT  IN  BANK 

Appropriated  by  bank   on  debt,   but  not  applied  thereon  by  bankrupt  not 

preference,  §  1180,  p.  691;  §  1297,  p.  762;  §  1341,  p.  784. 
Bank  "adverse  claimant"  as   to,  when,  §  1681,  p.   1035;   §  1822,  p.   1119. 
Set-off,  when  deposit  may  be  used  as,  §  1180,  p.  691;  §  1297,  p.  762. 

DEPOSITION  FOR  PROOF  OF  DEBT 

Prima  facie  case  for   claimant,   §   844,  p.  484. 

But  not  prima  facie  case  for  allowance  as  priority  claim,  §  845,  p.  488. 

See    "Proof    of    Claim." 

DEPOSITORY 

In  composition  cases,  designation  of,  §  2364,   p.   1434. 

Depository  liable  for  payment  of  improperly  drawn  order,  §  913,  p.  520. 

Failure  to  deposit  in,  §  910,  p.  519. 

Trustee's   duty  to   deposit  money   in,   §   909,   p.   519. 

DESPATCH  IN  ADMINISTRATION,  §  718,  p.  434. 

DESTRUCTION   OF  PROPERTY 

During  pendency   of  petition,   §   1122,   p.   641. 
DETENTION 

See   "Arrest   and   Detention   of   Bankrupt." 

DETERMINATION  OF  VALUE  OF  SECURITIES,  §  759,  p.  450. 

Metho'd  stipulated  in  contract,  creditor  entitled  to  pursue,  §  760,  p.  451. 
Unless   oppressively   or   unfairly   exercised,   §    751,   p.   453. 
Which  of  remaining  four  methods,  left  to  court's  discretion,  §  762,  p.  454. 
Preliminary   determination   of  values   for  voting  purposes,  §   763,  p.   454. 

DIFFERENT  BANKRUPTCY  PETITIONS  PENDING  AT  SAME  TIME, 

§   292,   p.   212;    §    299,   p.    215. 

Subsequent  voluntary  petition  allowable  though  involuntary  pending, 
§  299,   p.   215. 

But  notice  to  petitioning  creditors  first,  before  adjudication  on  volun- 
tary  petition,   §   300,   p.   216. 
Precedence   to   involuntary   petition    where    creditors'    rights    require,    § 

301,  p.  216. 
But  adjudication  on  voluntary,  an  absolute  right  where  creditors"  rights 

not  imperiled,  §  302,  p.  216. 
Staying    involuntary    petition    to    ascertain    propriety    on    voluntary',    § 
303,  p.  217. 
Voluntary   and   involuntary   petitions    in   same    district — bankrupt's    domicile 

preferred,  §  304,  p.  217. 
Bankruptcy   proceedings   absolute   precedence    over   federal   proceedings    in 
same    district,    §    305,    p.    218. 


GENERAL  INDEX.  2119 

DIRECTORS 

Excluded     in     determining     whether     total     creditors     less     than    twelve,     § 

200,  p.   164. 
May  be   Petitioning   Creditors,   §   215,   p.    174. 

DISALLOWANCE   OF  CLAIMS,  §  811,  p.  473;  §  8l8,  p.  475. 

DISBURSEMENTS 

By   Check,    Countersigned,    §   912,   p.   520. 

Commissions    computed   on,   meaning   of   term,    §    2103,   p.    1299;    §   2104,   p. 

1300;  §  2105,  p.  1300;  §  2109,  p.  1301,  §  2110,  p.  1302;  §  2111,  p.  1302. 
Order  of  Court  requisite,   §  911,  p.  519. 

DISCHARGE 

Appealability,   of  judgments   granting  or   refusing,   §   2893,   p.   1698;    §   2895, 

p.    1700;    §   2897,    p.    1701. 
Bankrupt's    testimony    on    general    examination,    admissible,    notwithstand- 
ing, §  7   (9),  §  1557,  p.  932. 
Bars  debts,   not  enforcement  of  liens  nor  title  to  property,  §  2668,  p.   1587. 
Barring  of  debt  by,   distinguished  from  invalidating   of  liens    obtained   by 

legal    proceedings,    §    1435,   p.    848. 
Certificate   of,   is   proof   of,   §   2684,   p.    1595. 

Collateral  attack  on,  §  2442,  p.  1477;  §  2443,  p.  1477;  §  2444,  p.  1477;   §  2478 
p.    1495;    §    2686,   p.    1595. 

Discharge  not  impeachable  collaterally,  §  2442,  p.  1477;  §  2478,  p.  1495; 

§    2686,    p.    1595. 
Except  for   absolute   want   of  jurisdiction   apparent   on   face,   §   2442,   p. 

1477. 
Avoiding  effect  of  discharge  by  showing  debt  excepted,  is  not,  §  2443, 
p.   1477;   §   2444,  p.   1477;   §  2667,   p.   1587. 
Confirmation   of  composition,  in   effect,  is,   §  2349,   p.   1426. 
Debts    excepted    from 

Fraud,  embezzlement  and  defalcation,  while  officer,  etc. 

"Fraud"    means    moral    turpitude    or   intentional    wrong,    §    2788,    p. 

1632. 
"Fraud"  must  have  existed  in   original  transaction,  §  2789,  p.   1632. 
Judgment  not  such   merger  as  prevents   inquiry  into   character   of 

fraud,   §  2790,  p.    1633. 
Debts  for  are  not  discharged,  §  2783,  p.  1628. 
Must    be    committed    while    acting    as    "officer"    or    in    "Fiduciary 

capacity,"   §   2784,   p.    1629. 
'"Fiduciary    Capacity"   refers    to    express    trusts   and    excludes    con- 
versions by  agents,  etc.,  also  fraudulent  transfers,  §  2785,  p.  1629. 
"Fiduciary"    relation    must    exist    independently    of    transaction    in 

which  debt  arose,  §  2786,  p.  1631. 
Whether  includes  "officers"  of  private  corporation,  §  2787,  p.   1631. 
Certain   "provable"   debts   excepted,   §  2743,   p.    1616. 
Because  excepted,  not  entitled  to  priority  before  dividends,   §  2744,   p. 

1616 
Debts  not  "duly  scheduled,"  §  2761,  p.  1622. 

Failure  to  give  street  number  where  ascertainable,  §  2770,  p.  1626. 
Giving    name    and    street    correctly,    but    city    wrong,    .not    "due 
scheduling,"  §  2771,  p.  1626. 


2120  GENERAI,  INDEX. 

DISCHARGE— Continued. 

"Idem  Sonans,"  §  2772,   p.   1626. 

Innocent   intent    in    faulty   scheduling,    no    excuse,    §    2773,   p.    1626. 

Where  actual  address  unknown,  a  guess  at  surmised  address  not 
sufficient,    §   2774,   p.    1626. 

Reasonable    diligence    in    ascertaining    correct    address    requisite, 
§    2775,    p.    1626. 

Initials  instead  of  full  given  names,  §  2763,  p.  1623. 

Abbreviations,   §   2764,   p.   1624. 

Ditto    marks,    §    2765,    p.    1624. 

Partnership  debts  in  individual  bankruptcy  of  partner,  §  2766, 
p.   1624. 

Debts  intentionall}'  scheduled  in  name  of  original  payee  when  held 
by  third  person,   §  2767,  p.   1625. 

Original  creditor  sufficient  where  no  notice  of  assignment,  §  2768, 
p.    1625. 

Stockholders'  liability,  either  corporate  creditors,  or  receiver,  may 
be   scheduled,   §   2769,   p.    1625. 

Where  all  addresses  stated  to  be  unknown,  court  to  withhold  dis- 
charge until  satisfied  due   diligence  exercised,   §   2776,  p.   1627. 

Actual  knowledge  by  creditor  cures  defective  scheduling,  §  2777, 
p.  1627. 

No    particular   form   of   notice    requisite,    §   2778,    p.    1627. 

Agent's    knowledge    imputable    to    principal,    §    2779,    p.    1627. 

Knowledge  not  sufficient  unless  in  time  for  creditor  to  avail  him- 
self of  benefits  of  law,  §  2780,  p.   1627. 

Defending  that  debt  not  "duly"  scheduled,  not  collateral  attack. 
§  2781,  p.   1628. 

After  discharge  too  late  to  amend  schedules  to  include  omitted 
creditors,   §   2782,   p.    1628. 

"Due"  scheduling  dependent  on  facts  in  particular  case,  §  2762, 
p.  1623. 

Liabilities  for  alimcny 

Are   excepted,   §   2755,   p.   1620. 

Alimony  exception  simply  declaratory  of  law  as  already  existing, 
§  2756,  p.    1620. 

Liabilities   for    obtaining   property   by    false   pretenses    or   false    repre- 
sentations 

Are  not  discharged,  §   2745,  p.   1616. 

Not  all  frauds  excepted,  but  only  "obtaining  property  by  false 
pretenses,"    etc.,   §   2747,   p.   1616. 

Judgment   not   requisite,   §   2748,   p.    1617. 

Judgment  not  such  merger  as  prevents  inquiry  into  original  lia- 
bility,  §   2749,   p.    1618. 

Judgment  not  such  merger  as  to  exclude  original  nature  even 
where  tort  waived  and  judgment  on  quasi  contract,  §  2750,  p. 
1618. 

False  representations  not  necessarily  in  writing,  §  2751,  p.  1619. 

False  representations  to  inercantile  agency  sufficient,  §  2752,  p.  1619. 

Reckless   representations   sufficient,   §   2753,   p.    1619. 

Liabilities  for  willful  and  malicious  injuries  to  person  or  property 
Are  excepted,  §  2754,  p.   1619. 


GENERAL,  INDEX,  2121 

DISCHARGE— Continued. 

Seduction  cr  criminal  conversation 

Are    excepted,    §    2760,    p.    1621. 
Support  of  wife  or  child 

Are  excepted,  §  2757,  p.  1621. 

Simply  declaratory  of  law  as  already  existing,  §  2758,  p.  1621. 
Lir.bilities    to    third    parties    not    excepted — only    liabilities    directly 
to  wife  or  child,  §  2759,   p.   1621. 
Taxes,    §    2745,    p.    1616. 
Due  process  of  law,  whether  Discharge  in  Bankruptcy  is,  §  12,  p.  28. 
Equivalent    to    return    of    execution    unsatisfied,    §    1523,    p.    906;    §    2200,    p. 

13  5;;. 
History  of,  §  2415,  p.  1459. 

First  provision  for  discharge  in  early  bankruptcy  ]a\v,  Introd.   (i),  p.  10. 
No   discharge   under    First   English   Bankruptcy   Act,   Introd.    (g),   p.   8. 
No  discharge  under  English  Acts  until  Queen  Anne's  Act,  Introd.   (h; 
and    (i),    pp.    9-10. 
Of  individual  debts,  in  partnership  bankruptcies 

Where  individuals  adjudged  bankrupt  with  partnership,  individual  debts 

discharged,  §  2803,  p.  1642. 
Where  individuals   not  adjudged  bankrupt   with   partnership,   individual 
debts  not  discharged,  §  2804,  p.   1642. 
No  levy  on  exempt  property  after,  §  2679,  p.  1593. 
Nature  and  Effect  of  Discharge,  §  2414,  p.  1459. 

Nondischargeable    debts,    if   "provable,"    share    in    dividends,    §    2670,   p. 

1589. 
Secondary    liability,   unaffected,    §    1510,    p.    902;    §    2*671,   p.    1589. 
Debt  not  extinguished,  but  its  enforcement  barred,  §  2672,  p.  1589. 
Refusal  of  discharge,  does  not  prevent  passing  of  title  to  trustee,  §  1134. 

p.  646  n. 
Rights  of  creditor  against  sureties,   etc.,  not  affected  by,  §   1510,  p.  902; 

§  2671,  p.  1589. 
See  "Sureties  and  Guarantors." 

Claims    capable    of    liquidation    but    not    liquidated,    nevertheless    dis- 
charged,  §   732,  p.   439. 
Whether  affects  valid  liens  on   exempt  property,   §   1100,  p.  625. 
Valid   liens   not    cast   off    nor    their    enforcement   prevented,    §    2668,    p. 

1587;  §  2673,  p.  1589. 
Transactions,    themselves,    not    invalidated    because    of    being    bars    to 

discharge,    §    2674,    p.    1591. 
Contractual    relations    not    dissolved,    unless    mergeable    in    "provable" 

debt  at  time  of  bankruptcy,  §   2675,  p.   1591;   §  2729.  p.   1609. 
Contracts  for  liens  on  after-acquired  property  discharged,  if  mergeable 

in  provable  debt  at  time  of  bankruptcy,  §  2676,  p.  1591. 
Right    to    discharge    and    effect    of    discharge    distinct    matters,    §    2662, 

p.   1584. 
Effect    of    discharge    on    particular    debt    to    be    determined    when    en- 
forcement of  debt  attempted,  §  2663,  p.   1585. 
Decree  of  discharge  to  be  general,  §  2664,  p.  1586. 
No   limiting   of   effect,   nor   excepting   of   particular   debts,   in    decree,    § 

2665,  p.   1586. 
Except  where  former  discharge  refused,   §   2666,  p.   1587. 


2122  GENERAL  INDEX. 

DISCHARGE— Continued. 

Urging  debt  to  be  not  "provable"  or  to  be  within  exceptions  of  §  17, 
not   "collateral   attack,"   §   2667,   p.   1587. 

Discharge  bars  debts,  not  enforcement  of  liens  or  title  to  property,  § 
2668,   p.   1587;   §   2673,  p.   1589. 

Bankrupt  remains  liable  on  debts  not  dischargeable,  collectible  out  of 
subsequently-acquired    assets,    §    2669,    p.    1589. 

Where  lien  exists  in  prtesenti  before  bankruptcy,  though  property  ac- 
quired afterward,   discharge   no  bar,   §   2677,   p.   1591. 

Assignments    of   unearned    wages,    §    2678,    p.    1591. 

"Waiver  of  exemption"  notes;  no  levy  on  exempt  propertj^  after  dis- 
charge,  §  2679,   p.   1593. 

Former  refusal  of  discharge  res  judicata  as  to  all  claims  then  provsable, 
§   2680,   p.   1594. 

Not  if  former  refusal  was  under  State  insolvency  proceedings,  §  2681, 
p.   1594. 

Is  a  distinct  incident,  not  an  essential  of  bankruptcj*,  §  2415,  p.  1459; 
Introd.    (a),  p.  1. 

May  "go  into"  or  be  "thrown  into"  bankruptcy-  repeatedl}',  irrespective 
of  refusal  or  granting  of,  §  2416,  p.  1461. 
Notice   to   be   given   to   all   creditors,   §   565,   p.   343. 

Adjudication   as   to   fraud,   upon   hearing  of  discharge,   not   res   judicata   in 
suit  by  trustee,  to  set  aside  fraudulent  conveyance,  §   1774.  p.   1077. 

Opposition  to 

Burden    of    proof    on    opposing    creditor,    §    2635,    p.    1570. 

Presumptions  of  fact  may  shift  against  bankrupt  and  compel  rebuttal, 
§  2636,  p.   1571. 

Burden  of  proof  on  objecting  creditor  as  to  each  element  of  ground 
charged,  §  2637,  p.  1571. 

Evidence  need  not  be  "beyond  reasonable  doubt,"  §  2638,  p.   1571. 

Where  "ofifense"  charged,  evidence  to  be  "clear,"  "satisfj-ing"  or  "con- 
vincing,"  §  2639,  p.   1572. 

Whether  same  degree  of  proof  requisite  where  ground  charged  not  a 
punishable    "ofifense,"    §    2640,    p.    1572. 

"General   Examination"   of  bankrupt   admissible,   §   2641,   p.   1573. 

General  Examination  competent  though  "offense"  charged,  §  2642, 
p.    1573. 

Costs  on  Opposition,  §  2658,  p.  1578. 

Power  to  award,  inherent,  §  2659,  p.  1578. 

Referee   allowed   compensation   as   special   master,   §   2660,   p.    1578. 

Awarding  costs  against  creditors,   §  2661,  p.   1579. 
Death   not   to   abate    opposition   proceedings,   §    2456,    p.    1487. 

General  Examination  of  other  witnesses  than  the  bankrupt,  not  ad- 
missible, §  2643,  p.  1574. 

Unless  so  stipulated,  §  2644,  p.  1574. 

Ordinary  rules  determine  admissibility  and   credibility,   §  2645,  p.    1574. 

Failure  to  produce  material  witnesses  who  are  accessible,  §  2646,  p. 
1574. 

Failure  of  creditors  to  take  steps  to  recover  property  alleged  fraudu- 
lently concealed,   §  2647,  p.   1574. 

Evasive  testimony  of  bankrupt:   credibilitj-,   §  2648,  p.  1575. 

Contradictory   statements   and   incredible   explanations,   §   2649,   p.   1575. 


GENERAL  INDEX.  2123 

DISCHARGE— Continued. 
Grounds  of 

Added  by  amendment  of  1903,  §  2^552,  p.  1538. 

See  "Discharge — Opposition  to — Grounds  of — Re'fusal  to 
Obey  Court's  Order  or  to  Answer  Question  as  Bar." 

May  apply  to  acts  committed  before  1903,  §  2552,  p.  1538;  § 
2558,   p.   1540;    §   2576,   p.   1547. 

See  "Discharge — Opposition  to — Grounds  of — Transfer,  Re- 
moval or  concealment  within  Four  Months,  as  Bar." 

See  "Discharge — Opposition  to — Grounds  of — False  State- 
ments in  Writing  to  Obtain  Property  on   Credit." 

See    "Discharge — Opposition     to — Grounds    of — Previous     Dis-' 
charge  within   Six  Years  as   Bar." 
Concealment  of  assets 

In  general,  §  2487,  p.  1503. 

"Knowingly   and   fraudulently,"    §   2488,   p.    1503. 

Intent  to  conceal,  most  important  element,  §  2489,  p.  1504. 

Honest  mistake,  even  mistake  of  law,  excused,  §  2490,  p.   1504. 

Advice  of  counsel  may  negative  intent,  §  2491,  p.  1504. 

When  advice  of  counsel  insufficient,   §  2492,  p.   1505. 

"Secret  Trust"  in  bankrupt's  favor  generally  requisite  to  show 
continuing  and  intentional  concealment  of  fraudulent  trans- 
fers,  §   2511,   p.   1511. 

"Secret  trust"  not  requisite  where  "fraudulent  .conveyance 
within   four   months"   ground   charged,    §   2512,   p.    1513. 

"Concealment"  and  "Fraudulent  and  knowing  intent"  prova- 
ble otherwise  than  by  continuing  secret  ti»ust,  §  2513,  p.  1514. 

Must  be  of  property  "belonging  to  estate,"   §  2514,  p.   1514. 

Omission  to  schedule,  not  per  se  concealment,  §  2504,  p.   1508. 

Property  must  be  recoverable,   else  not,   §   2506,   p.   1508. 

Even  where  fraudulent  transfer  occurred  more  than  four 
months  before  bankruptcy,  if  property  still  recoverable,  dis- 
charge is  barred,  §  2507,  p.  1508. 

Where  it  occurred  before  passage  of  act,  if  still  recoverable, 
§  2508,  p.   1509. 

Where  no  debts  existed  and  transfer  only  because  in  contem- 
plation  of   future   creditor,   §   2509,   p.    1510. 

Of  property  held  on  "secret"  or  "resulting  trust,"  title  never 
having  been  in  bankrupt,   §  2510,  p.   1510. 

Concealment  must  be  concealment  from  trustee,  §  2499,  p. 
1506. 

Concealment  before  appointment  of  trustee,  insufficient,  §  2500, 
p.  1506. 

Mere  inability  to  account  reasonably  for  assets  not  per  se 
proof,   though  strong  evidence,   §   2501,  p.   1507. 

Concealment  by  purposely  omitting  assets  from  schedules,  § 
2502,  p.   1507. 

Amendment  after   discovery  will   not  cure,   §  2503,  p.   1507. 

Because  property  claimable  as  exempt,  fraudulent  intent  not 
necessarily   negatived,    §    2493,    p.    1505. 

Such  fact  of  weight  as   evidence,   §  2494,   p.    1505. 

Willful  undervaluing  of  scheduled  assets  whether  concealment, 
§    2495,    p.    1505. 


2124  GENERAL  INDEX. 

DISCHARGE— Continued. 

Preference  not  amounting  to   fraudulent  concealment,  no  bar, 
§   2496,  p.   1505. 

Concealment   must  be   "while   a   bankrupt"   or   after   discharge, 
§  2497,  p.   1506. 

Continuing   concealments,   §   2498,   p.    1506. 

Merely   working   for    another,    even    without    pay,    while    insol- 
vent, no   concealment,   §   2515,  p.   1514. 

Beginning  new  business  as  agent  for  another,  §  2516,   p.  1515. 

Exact  value  of  assets  concealed  need  not  be  capable  of  ascer- 
tainment, if  of  value,   §   2517,  p.   1517. 

Even    if    of    small    value,    intentional    concealment    will    bar,    § 
2518,  p.   1517. 

Failure    of   creditors   to   institute   legal    proceedings    to   recover 
concealed  property  tends  to  rebut,  §  2519,  p.   1517. 

Amendment   of   schedules   after   discovery   of   concealed   assets, 
of  no  avail,  §  2520,  p.   1518. 

Instances   held  sufficient   to  bar  discharge   for   concealment   of 
assets,    §    2521,    p.    1518. 

Instances   held  insufficient   to   prove   fraudulent   concealment,   § 
2522,   p.    1519. 
Destruction,  failure  to  keep  and  concealment  of  becks  of  account 

Might    have    aided    in    ascertainment    of    financial    condition,    § 
2550,  p.   1536. 

Whether    allegations    in    mere    words    of    statute    sufficient,    § 
2608,  p.  1558. 

As  bar  to  discharge,   §   2544,   p.   1532 

Intent  to   conceal   financial   condition  essential,  §   2545,  p.   1532. 

Intent  inferable  from  circumstances,   §  2546,  p.  1534. 

Property  exempt,  or  not  recoverable,  etc.,  not  necessarily  neg- 
atives  intent   to   conceal,   §   2547,   p.    1534. 

Keeping  books  in  same  defective  manner  for  long  period  tends 
to  negative   intent,   §   2548,   p.   1534. 

No  special  manner  of  keeping  books  requisite,  §  2549,  p.   1535. 
"False    Oath." 

As   bar   to   discharge,   §   2523,  p.    1521 

Must  be  false  oath  or  false  account,  §  2524,  p.  1523. 

Oath  must  be  authorized  by  statute  and  administered  by  one 
authorized,  §  2525,  p.   1523. 

Sufficient    if    administered    either    before    testifj^ing    or    after- 
wards,   §   2526,    p.    1523. 

Must   be   in   or  in   relation   to   bankruptcy   proceedings,    §   2527, 
p.  1524. 

"False  oaths"  in   poverty  affidavits,  §  2528,  p.   1524. 

Omitting  creditors   from   schedules,   when,   §   2542,   p.   1531. 

Amendment  after  discovery  of  omissions,  §  2543,  p.  1532. 

In  hearing  upon  petition  for  adjudication,  §  2529,  p.  1524. 

If  not  in,  nor  in  relation  to  his  own  bankruptcy  proceedings, 
no  bar,  §  2530,  p.   1524. 

Whether    in    own    previous     bankruptcy    proceedings,    bar,     § 
2531,   p.    1525. 

In    bankruptcy   proceedings    under   law   of    1867    not    sufficient, 
§   2532,  p.    1526. 


GENERAL  INDEX. 


2125 


DISCHARGE— Continued. 

Must   have   been   material,   §   2533,   p.    1526. 

Material  though  subject  is  of  little  value,  or  exempt,  or  not  re- 
coverable, §  2535,  p.   1526. 
Advice  of  counsel   tends   to   negative   fraudulent  intent,   §   2536, 

p.   1527. 
Fraudulent  intent  not  necessarily   negatived  by  fact  that  prop- 
erty not  recoverable,  §  2537,  p.   1527. 
Nor  that  its  value  is  unascertained,  §  2538,  p.  1527. 
Nor   that  it  might  have  been   claimed   exempt,   §  2539,   p.   1528. 
False    testimony    on    "general    examination,"    "false    oath,"    § 

2541,  p.  1528. 
Swearing     to     schedules     containing     misstatements     or     omis- 
sions, "false  oath,"  §  2511,  p.  1528. 
False  statement   in  writing  to   obtain  property   on  credit,   as  bar 
to   discharge,    §   2556,    p.   1539. 

New    ground,    only    available    in    bankruptcies    instituted    since 

amendment,   §   2557,   p.    1540. 
Statement    before    amendment    sufficient    if    proceedings    insti- 
tuted after   amendment,   §   2558,   p.   1540. 
Whether    other    than    particular    creditor    defrauded    may    op- 
pose on  this  ground,  §2559,  p.  1541. 
First   element   "materially   false   statement   in   writing,"   §   2560, 

p.    1542. 
Second  Element,  Must  be  by  bankrupt,  §  2562,  p.  1542. 
If  made  by  agent  with  bankrupt's  authority,  sufficient,   §  2o63, 

p.    1542. 
Third    Element;    must   be    made    to    person    from    whom    prop- 
erty obtained,  §  2564,  p.  1543. 
Whether,  if  made  to  mercantile  agencies,  or  in  answer  to  gen- 
eral inquiries,  a  bar,  §  2565,  p.  1543. 
Fourth  element;  property  must  be   obtained  on  credit  thereby, 

§  2566,  p.  1543. 
Fifth     element;     bankrupt     must     intend    to     obtain     property 

thereby,    §   2567,   p.    1544. 
Whether   intent   must   be    to    obtain    particular    property    actu- 
ally  obtained,    §    2568,    p.    1544. 
Sixth    element;   false   statement   must   be   relied   on,   §    2o69,   p. 

1544. 
"Continuing  representations,"  §  2570,  p.   1544. 
Written   statement  need  not  be   delivered  if   contents   commu- 
nicated,  §  2661,  p.   1542. 
Obtaining  property  by  false  representations 

Whether   other   than   one   from   whom   property   obtained    may 
oppose  on  this  ground,  §  2462,  p.  1489. 
Presentation  of  "false  claim  or  demand"   as  bar,  §  2551,  p.   1538. 
Transfer,   removal   or   concealment   within   four   months,   as   bar,   § 

2553,  p.  1539. 

Must    be    within    four    months    preceding    bankruptcy,    ^    ~oo4, 

p.    1539. 
Property  need  not  be  still  recoverable,  §  2555,  p.  1539. 
Unless    bankrupt    commits    one    of    acts    prohibited    his    discharge 
"shall  be  granted,"  §  2469,  p.  1492. 


2126  GENERAL  INDEX. 

DISCHARGE— Continued. 

Granted    though    bankrupt    owes    nondischargeable   debt,    §    2470,    p. 
1493. 

Granted  though   only    debt   scheduled   be   nondischargeable,   §   2470, 
p.  1493. 

Granted  though   opposing  creditor's   debt   nondischargeable,   §   2471. 
p.   1494. 

Granted  though  opposing  creditor's  debt  one  against  which  no  ex- 
emption exists,  §  2471,  p.  1494. 

Withholding  discharge  for  noncompliance  with  rules,  §  2480,  p.  1496. 

Dismissing  discharge  for  want  of  prosecution,  §  2480,  p.  1496. 

Temporarily  holding  discharge  in  abeyance,  for  "more  thorough  in- 
A^estigation,"  §  2480,  p.  1497  n.    • 

Withholding  until  "proper  accounting"  given,  §  2480,  p.  1497  n. 

Withholding   for    correction    of    mistake    as    to   exemptions,   §    2480, 
p.  1497  n. 

Granted  though  only  one  debt  exists,  §  2472,  p.  1494. 

Granted    in    individual    bankruptcy    though    only    partnership    debts 
exist,   §   2473,   p.   1494. 

Insanity  or  death  no  bar,  §  2474,  p.  1494. 

Undetermined  petition  for   discharge   in   pending   bankruptcy   under 
old  law  of  1867  no  bar,  §  2475,  p.  1494. 

Whether  misconduct  in  former  bankruptcj-  a  bar,  §  2476,  p.  1495. 

Lack  of  sufficient   residence,  domicile  or  principal  place  of  business, 
no  bar,  §  2477,  p.   1495. 

Filing   of   petition   for    discharge    after    expiration    of   year,    §    2479, 
p.   1496. 

Filing  of  petition  for  discharge  after  expiration  of  eighteen  months, 
§   2479,  p.  1496. 

No   refusal,   for   acts   committed   before   passage   of   law,    §   2482,   p. 
1499. 

Buying  off  opposition  to  discharge,  §  2481,  p.  1497. 

Fraudulent  acts  of  agents  and  partners,  when  imputable  to  bank- 
rupt, §  2484,  p.  1502;   §  2485,  p.  1502;   §   2563,  p.   1542. 

Whether   act   must   be   committed   in    same   capacity   in   which    dis- 
charge sought,   §   2486,  p.   1503. 
General  Nature  of 

Not    criminal    prosecution,    and    criminal    law    rules    not    applicable, 
§  2464,  p.   1489;   §  2642,  p.   1573. 

Refusal    of    discharge    not    imposition    of    penalty    nor    forfeiture,    § 
2465,  p.  1489. 

No  constitutional  right  to  discharge,  §   2466,  p.   1490. 

Act  liberal  towards  bankrupt  as  to  discharge,  §  2467,  p.  1490. 

Right   to   discharge  and   effect  of  discharge   distinct   propositions,   § 
2468,  p.   1491. 
In   general,  §  2447,  p.   1485. 

Entry  of  appearance  and  filing  of  specifications,  §  2448,  p.  1485. 
Entry  of  appearance  on  time  essential,  §  2449,  p.   1486. 
Appearance  may  be  by  attorney,  §  2450,  p.  1486. 
Entry  of  appearance   gives  ten  days'   time   to   file   specifications,   §   2451, 

p.  1486. 
Specifications   to  be   filed   in   writing,   §    2452,   p.   1486. 
Not  filed  within   ten   days,  dismissed,   §   2453,  p.   1486. 


GENERAL  INDEX.  2127 

DISCHARGE— Continued. 

Time  extended  but  only  for  "good  cause,''  §  2454,  p.  1486. 

Bankrupt  to  attend  hearing;   no  order  necessary;   no  reimbursement  of 

expenses,  §   2455,  p.   1487. 
Hearing  of  specifications 

Special  master  to  report  findings  of  fact,  §  2630,  p.  1569. 

Special  master  to  report  conclusions  of  law,  §  2631,  p.  1569. 

Exceptions  to  special  master's  report  and  findings,  §  2632,  p.  1569. 

Court   presumed   to   have   investigated   case   on   merits,   on   master's 
report,  §  2633,  p.  1569. 

Findings  of  fact  not  reversed  except  for  clear  error,  §  2634,  p.  1569. 

Final  hearing  on  discharge  to  be  before  Judge,  §  2625,  p.  1566. 

Judge  may  refer  issues  to  special  master,  §  2626,  p.  1566. 

Motions  and  demurrers,  §  2627,  p.  1567. 

Hearings  before  special  master,  §  2628,  p.  1567. 

Whose   duty   to  bring  on  hearing  before   special   master,  §   2628,   p. 

1567  n. 
Whether    special   master   to    exclude   improper   evidence,    §    2629,    p. 

1567. 
Impeachment   of  witness   by   inherent   improbability   of   own   testimony. 

§  2650,  p.   1575. 

Merely  suspicious  circumstances  not  sufficient  where  witness  uncon- 
tradicted/ §  2651,  p.   1576. 

Mere  evasive  testimony  and  inability  to  account  reasonably  for  assets 
not  per  se  proof,  §  2652,  p.  1576. 

Though  strong  evidence  tending  to  discredit,  §  2653,  p.  1576. 

Judicial  cognizance  of  court  records,  §  2654,  p.  1576. 

Res  Judicata  and  Estoppel,  §  2655,  p.  1577. 

Discharge  hearing  not  postponed  to  await  outcome  of  fraudulent  con- 
veyance suit,  §  2656,  p.  1578. 

Declarations  of  alleged  fraudulent  transferrer,  §  2657,  p.  1578. 

Specifications 

To  be  filed  in  writing,  §  2452,  p.  1486. 
Not  filed  within  ten  days  dismissed,  §  2453,  p.  1486. 
Extension   of  time   for   filing,   §   2454,   p.   1486. 
Ten  days  time  after  appearance  for  filing,   §  2379,   p.   1440. 
Answer  to  specifications  not  necessary,  §  2623,  p.  1565. 
But  answer  may  be  filed,  §  2624,  p.  1565. 

Defective  specifications,  rights  and  remedies,  §  2610,  p.  1561. 
Specification  of  one  ground,  but  proof  of  another,  §  2611,  p.  1562.- 
Defective    specifications   waived    by    going    to    trial    without    objec- 
tion, §  2612,  p.  1562. 
Amendment  of  defective  specifications,  §  2613,  p.  1563. 

^lu-t  be   something  in   pleading  whereby   to   amend,   §   2614,  p. 

1563. 
Amendment   permissible   after   time   limited   for   filing   specifica- 
tions, §  2615,  p.  1563. 
Even  new  ground  of  opposition  may  be  added,  §  2616,  p.  1564. 
Amendment  to   conform  pleadings   to  proof,  but  not  to   set  up 

entirely  new  ground  after  trial,  §  2617,  p.  1564. 
Amendment  may  be  ordered,  §  2618,  p.  1584. 

Striking  oflf   specifications   after   amendment   for   failing   still   to 
show  sufficient  grounds,  §  2619,  p.  1564. 


2128  GENERAL  INDEX. 

DISCHARGE— Continued. 

Amendment  ma}-  be  conditioned  on  payment  of  costs,  §  26S0, 
p.  1564. 

Amendment  may  be  refused,  §  2621,  p.  1564. 

Refusal  to  permit  amendment  reviewable  for  abuse  of  discre- 
tion, §  2622,  p.  1565. 

Essential  Allegations  and  form 

Acts  charged,  to  be  brought  within  time  limit,  §  2598,  p.  1554. 

Distinct  grounds  may  be  joined  in  one  specification,  §  2599,  p. 
1554. 

Each  ground  to  be  separately  stated,  §  2600,  p.  1554. 

All  grounds  need  not  be  sustained,  §  2601,  p.   1555. 

Specifications  not  to  be  used  as  "'dragnet''  or  "fishing  expedi- 
tion," §  2602,  p.  1555. 

IMust  not  be  indefinite  nor  general  nor  argumentative,  but  cer- 
tain and  positive,  §  2603,  p.  1555. 

Specifications  are  pleadings,  §  2583,  p.  1549. 

IMust  show  capacity  of  objecting  creditor,  §  2594,  p.  1552. 

All  essential  facts  and  elements  of  bar  to  discharge,  to  be  al- 
leged, §  2595,  p.  1552. 

"Knowingly  and  fraudulently"  to  be  alleged  where  act  charged 
is  an  "offense,"  §  2596,  p.  1553.  ^ 

If  act  charged  is  an  "ofifense,"  must  appear  to  have  been  com- 
mitted after  bankruptcy,  etc.,  §  2597,  p.  1554. 

No  greater  definiteness  necessary  than  nature  of  facts  permits, 
§  2604,  p.  1557. 

Whether  to  be  pleaded  "with  certainty  of  indictment"  where 
"oflfense"  charged,  §  2605,  p.  1558. 

Evidence  not  to  be  pleaded,  §  2606,  p.  1558. 

Legal  conclusions  not  to  be  pleaded,  §  2607,  p.  1558. 

Allegations  in  mere  words  of  statute  sufficient  only  where  fail- 
ure to  keep  books,  ground  charged — Elsewhere  insufficient, 
§  2608,  p.  1558. 

Alternative   allegations   improper,   §   2609,   p.   1561. 

Verification  and  Signature 

Specifications  are  pleadings,  §  2583,  p.  1549. 

To  be  verified,  §  2584,  p.   1549. 

Lack  of  verification  may  be  waived,  §  2585,  p.  1551. 

Lack  of  verification  may  be  supplied  by  amendment,  §  2586, 
p.  1551. 

Where  there  are  several  objecting  creditors,  all  may  sign  and 
verify  same  specifications,  §  2587,  p.  1551. 

Whether,  if  several  join  in  same,  each  must  sign  and  verify, 
§  2588,  p.  1551. 

Whether  verification  by  some  one  with  knowledge  requisite, 
§  2589,  p.  1551. 

Verification  by  attorneys  permitted,  §  2590,  p.  1551. 

Forms  of  verification,  §  2591,  p.  1551. 

Whether  verification  must  be  positive  or  may  be  on  informa- 
tion and  belief,  §  2592,  p.  1552. 

Specifications  to  be  signed,  §  2593,  p.  1552. 


GENERAL  INDEX.  2129 

DISCHARGE— Continued. 

Who  may  oppose  Discharge,  §  24'u,  p.  1487. 
Court  itself  not,  §  2457,  p.  1487. 
Trustee,  not,  §  2458,  p.  1488. 
Any  "party  in  interest,"  §  2459,  p.  1488. 
Must  have  pecuniary  interest,  §  24G0,  p.  1488. 
Need  not  have  proved  his  claim  nor  have  "provable  claim,"  §  2461, 

p.  1488. 
Whether    other   than    one    from   whom    property    obtained   by    false 

representations  may  oppose  on  that  ground,  §  2462,  p.  1489. 
Whether  objecting  creditor's  loss  of  capacity  pending  hearing  com- 
pels dismissal  of  specifications,  §  2463,  p.  1489. 
Creditors  whose  own  specifications  insufficient,   using  specifications 
of  creditors  who  fail  to  appear,  §  2481,  p.  1498  n. 
Of  Partnership 

Partnership  entitled  to  discharge,  §  2791,  p.  16.33. 

No  individual  discharge  .of  member  unless  individually   adjudged  bank- 
rupt, §  2792,  p.  1633. 
Act  of  one,  bars  firm  discharge,  if  done  within  scope  of  firm  business, 
§  2793,  p.  1633. 
Of  partnership  debt  in  individual  bankruptcy  of  a  member 
Rulings  on,  §  2794,  p.  1634. 

Individual  liability  for  firm  debts,  discharged  if  firm  debts  "duly"  sched- 
uled   in    individual    bankruptcy,    irrespective    of    "firm    assets,"    etc.,    § 
2795,  p.  1635. 
Firm  debts  "provable"  debts  of  each  member,  and  so  far  as  affect  indi- 
vidual, are  discharged  by  individual's  discharge,  §  2796,  p.  1637. 
Partnership    debts    to    be    "duly    scheduled,"    else    not    afifected   by    indi- 
vidual discharge,  §  2797,  p.   1640. 
Notice  to   creditors  must  give   notice   of  firm   debts   and   that   discharge 

therefrom  sought,  §  2798,  p.  1641. 
Petitions    for   adjudication   and    discharge    each    to    mention    firm    debts 

and  pray  for  discharge  therefrom,  §  2799,  p.   1642. 
Firm  property  to  be  described,  §   2800,  p.   1642. 
Amendment  to  include   Discharge  from   firm  debts,  where  already  duly 

scheduled,  §  2801,  p.  1642. 
Even  after  term  at  which  discharge  granted,  §  2802,  p.  1642. 
Personal  Notice  not  Essential  to  Validity  of  Discharge,  §  19,  p.  37. 
Petition  for,  §  2417,  p.  1464. 

Who  may  apply  for,  see  "Discharge — Who  May  Apply  for." 
Dismissal  of,  §  2433,  p.  1470;  §  2434,  p.   1470;   §  2435,  p.   1470;   §  2436,  p. 
1470;  §  2437,  p.  1471;  §  2438,  p.  1474;  §  2439,  p.   1476;   §  2440,  p.   1477; 
§  2441,  p.  1477. 

For  want   of  prosecution,   §   2433,   p.   1470. 

By  the  bankrupt,  §  2433,  p.  1470. 

None  for  failure  to  bring  on  hearing  in  opposition,  §  2434,  p.  1470. 

None   by   bankrupt   after   hearing   of   specifications   in   opposition,   § 

2435,   p.    1470. 
In  efifect  is  a  judgment  denying  a  discharge,  §  2436,  p.  1470. 
Firm  debts  to  be  mentioned,   if  discharge  therefrom  desired,   §  2799,   p. 
1642. 

2  Rem  B— 59 


2130  ge;nerai.  index. 

DISCHARGE— Continued. 

Firm  property  to  be  described,  if  discharged  from  firm   debts   desired, 

§  2800,  p.  1642. 
Form  of,  §  2429,  p.  1467. 

Whether  to  be  verified,  §  2430,  p.  1468. 
Notice  of,  §  2431,  p.  1469;  §  2432,  p.  1470. 

Ten  days  notice  by  mail,  §  2431,  p.  1469. 

By  publication,  §  2432,  p.  1470. 

Where  schedules  give  no  addresses,  §  2431,  p.  1469  n. 

Time  for  filing  of,  §  2423,  p.  1465. 

After  one  month  and  before  end  of  year  from  adjudication,  §  2423, 

p.  1465. 
Extension  of  time  granted,  §  2424,  p.  1465. 

To  be  applied  for  before  expiration  of  time,  §  2425,  p.  1465. 
Only  because  "unavoidably  prevented,"  §  2426,  p.   1465. 
"Nunc  pro  tunc''  orders  to  cover  laches  improper,  §  2426,  p.  1405. 
No  jurisdiction  to  discharge  on  petition  filed  after  eighteen  month.-, 

§  2427,  p.  1466. 
Referee  need  not  notify  bankrupt  to  file,  §  2428,  p.  1467. 

Pleading  and  proof  of 

To  be  set  up  as  defense  else  waived,  §  2682,  p.  1594. 
Refusal    of   for   concealment,   whether   res   judicata    on    summary    order    to 

surrendfer  assets,  §  1845,  p.  1142  n. 
Refusal  of,  see  "Discharge— Second  Petition  for'."     Also,  see  "Discharge — 

Res  Judicata." 
Release  from  Debts  not  Main  nor  Essential  Idea  of  Bankruptcy  Law,   In- 

trod.   (a),  p.  1;  §  2415,  p.  1459. 

Res  Judicata 

Refusal    of    discharge    under    former    bankruptcy    act,    not    res    judicata 

under  present  act,  §   2439,  p.   1476. 
Refusal  of   discharge  under   State   bankruptcy   or   State   insolvencj-  law 

not  res  adjudicata  as   to   saine  debt  in  federal   bankruptc}-,   §   2440,   p. 

1477. 
Refusal    of   discharge    no   bar   to    subsequent   bankruptcy    petitions    nor 

adjudications,  §   2441,   p.   1477. 

Revival  of  Discharged  Debt 

Discharged  debt  may  be  revived,  §  2714,  p.  1606. 

No  new  consideration  necessary,  §  2715,  p.  1606. 

Part  payment  on  account  insufficient  to  revive  debt,  §  2716,  p.   1606. 

Discharge  waivable  by  new  promise,  §  2717,  p.  1606. 

New  promise  not  necessarily  in  wdting,  §  2718,  p.  1607. 

New  promise  to  be  more  than  mere  acknowledgment  of  debt,  §  2719, 
p.  1607. 

Equivalent  of  promise  to  pay  necessary,  §  2719,  p.  1C07. 

New  promise  to  be  certain,  unequivocal  and  Clear,  §  2720,  p.  1607. 

New  Promise  may  be  conditional,  if  definite,  §  2721,  p.  1607. 

Probably  new  promise  before  discharge  sufficient,  if  after  adjudica- 
tion, §  2722,  p.  1607. 

Acceptance  of  new  promise  requisite,  §  2723,  p.  1608. 

Must  be  accepted  in  terms  ofifered,  §  2724,  p.  1608. 

Conditional  promise  accepted  as  ofifered,  sufficient,  §  2725,  p.  1608. 


GENERAI,  INDEX.  2131 

DISCHARGE— Continued. 

Action  on  revived  debt  to  be  brought  on  original  consideration,  §  272G, 

p.  1608. 
New  Promise  not  to  be  pleaded  nor  proved  in  first  instance,  §  2727,  p. 

1608. 
Allegations,  in  pleading  new  promise,  §  2728,  p.  1608. 

Revocation  of 
Grounds  for 

Fraud  in  procuring  discharge,  accompanied  by  grounds  for  barring 

'  it,  sole  ground,  §  2813,  p.  1646. 

Buying  off  opposition,  §  2814,  p.  1647. 

Applicant's    knowledge    of    fraud   at    time    of    discharge    granted,    § 
2815,  p.  1647. 

Applicant's  laches,  §  2815,  p.  1647. 

Ground  for  barring  discharge  itself  must  also  exist,  §  2816,  p.  1648. 

Creditor  defeated  in  opposition  to  discharge  may  not  move  for  rev- 
ocation on  same  grounds,  §  2817,  p.  1648. 

Vacating  for  irregularities  not  going  to  merits,  §  2818,  p.   1649. 
Jurisdiction,  §  2806,  p.   1644. 

Pleading  and  Practice 

Petition,  allegations  of,  §  2822,  p.   1649. 

Amendment  of  petition,  §  2823,  p.  1650. 

Capacity  of  parties,   §   2822,   p.   1649. 

Legal   conclusions,   §   2822,   p.   1649. 

Revocation   to   be   applied   for  within   year   after   discharge,    §   2824, 

p.  1650. 
Trial  to  be  before  Judge  not  before  referee,  §  2820,  p.  1649. 
Reference  to  Special  Master,  §  2821,  p.   1649. 
Pleadings  and  practice  on,  whether  applicable  to  setting  aside  of  com- 
position, §   2405,  p.   1452. 

Who  may  ask  for 

"Parties  in  interest"  alone,  §  2807,  p.  1645. 

Includes    creditor    who    has    failed    to    prove    claim    within    year,    § 

2808,  p.  1645. 
Must  have  been  creditor  at  time  of  bankruptcy,  §  2809,  p.  1645. 
Purchaser    of    discharged    claim,    not    party    in    interest,    §    2810,    p. 

1645.     - 
Whether   court -sua   sponte    maj^   within   year   vacate    discharge    not 

on  merits,  §  2811,  p.  1645. 
Whether  bankrupt  may  move  to  vacate  discharge,  §  2812,  p.  1646. 
Right  to   not   affected  by  death  or  insanity,  §  98,   p.   95;   §   2421,  p.   1465;   § 

2420,  p.  1464. 
Bankrupt  may  be  examined  after,  §  1542,  p.  919. 

Second  Petition  for 

Not  maintainable  after  refusal  of  first  where  debts  identical,  §  2437,  p. 
1471. 

Whei'e  debts  in  subsequent  bankruptcy  partly  same,  partly  new,  and 
discharge  in  first  bankruptcy  refused,  §  2438,  p.  1474. 

Refusal  of  discharge  no  bar  to  subsequent  bankruptcy  petitions  nor  ad- 
judications, §  2441,  p.  1477;  §  2579,  p.   1548. 


2132  GENERAL  IXDEX. 

DISCHARGE— Continued. 
Staying  of 

To  permit  creditor  to  perfect  rights  against  surety  or  exempt  property, 
§    2446,   p.    1478. 
Staying  suits  against  bankrupt  to  permit  interposition  of 

In  General,  §  475,  p.  307;  §  1103,  p.  628;  §  1651,  p.  1015. 

Ipso   facto   stayed   till   adjudication   or   dismissal   of   petition,   §   2695,   p. 
1598. 

Further  stay  on  application  until  discharge  heard,  §  2696,  p.  1599. 

Not  onlj^  pending  suits  but  also  subsequent  suits  staj-ed,  §^2697,  p.  1599. 

Further  stay  discretionary,  §  2698,  p.  1600. 

Comity  requires  request  for  stay  first  in  court  where  action  pending,  § 
2699,  p.  1600. 

Bankruptcy  court  may  enjoin  if  necessar}%  §  2700,  p.  1601. 

Referee  no  jurisdiction  to  enjoin  Court  or  Court  officer,  §  2701,  p.  1601. 

Whether  debt  sued   on   to   be   "clearly"   shown   to   be  within   discharge- 
able class,   §   2691,   p.   1597   n. 

Whether   character  of   debt  sued   on   to   be   determined   from   pleadings, 
§  2691,  p.  1597  n. 

Suits  against  bankrupt  staj^ed  until  adjudication,  §  2688,  p.  1596. 

Available  to  voluntary  and  involuntary  bankrupt   alike,  §   2689,  p.   1596. 

Stay  under  §  11  for   Bankrupt's  benefit,   to  permit  interposition   of  dis- 
charge, §  2690,  p.  1597. 

Debt  dischargeable,  else  no  staj%  §  2691,  p.  1597. 

Proceedings  on  nondischargeable  debts  stayable  where  creditors'  rights 
involved,  §  2692,  p.  1598. 

Error   in   holding    claim   dischargeable    no    warrant   for    disobedience,    § 
2693,  p.  1598. 

Proceedings  other  than  "suits"  stayed,  §  2694,  p.  1598. 

Stay  applies  to   all   incidents   of  proceedings   in   State   Court,   §   2702,   p. 
1601. 

No    further    staj^   than    for   year,    unless    application    for    discharge    filed 
within  year  not  yet  acted  upon,  §  2703,  p.  1602. 

If    discharge    refused,    court    may    render    judgment    in    personam    and 
judgment  will  be  good,  §  2705,  p.  1603. 

If  not  interposed  though  granted,  judgment  valid,  §  2706,  p.  1603. 

Statutory   cancellation   of   Subsequently-rendered   judgments,    §    2707,   p. 
1603. 

No  vacating  of  judgment  rendered  after  discharg'e,  for  interposition  of 
discharge,  §  2708,  p.  1604. 

Stay  only  protects  bankrupt  from  judgment  in  personam — judgment  in 
rem  as  to  property  unaffected,  §  2709,  p.  1604. 

Stay  dissolved  after  discharge  granted,  or  refused,  or  dismissed,  §  2710, 
p.  1604. 

Qualified  stay  where  levy  sought  on  exempt  property  not  exempt  as  to 
levy  songht,  §  2711,  p.  1605. 

Where  judgment  necessary  to  perfect  rights  against  suretj-,  or  property, 
§  2712,  p.  1605. 

No  deprivation  of  right    of  discharge  by  staying  discharge  hearing  or 
refusing   to    stay    creditor's    suits    where    judgment    requisite    to    per- 
fect creditor's  rights  against  sureties,  etc.,  §  2713,  p.  1605. 
Surrender  of 

Bankrupt  cannot  voluntarily  surrender   discharge,  §  2445,  p.  1477. 


GENERAI,  INDEX.  2133 

DISCHARGE— Continued. 
Vacating  of 

For  irregularities  not  going  to  merits,  §  2818,  p.  1649. 

What  obligations  are  discharged 

Contractual   relations   not    dissolved   by   discharge,   unless   mergeable   in 
"provable"  debt,  §  2729,  p.  1609. 

Relation  of  landlord  and  tenant  not  severed,  §  2730,  p.  1610. 

All    "provable"    debts    discharged,    save    those    excepted:    if    not    "prov- 
able,"  not   discharged,   §   2731,   p.    16H). 

If  capable  of  being  "proved,"  debt  discharged  whether  actually  proved 
or   not,   §   2732,  p.   1612. 

Tort  claims  discharged,  if  tort  might  be  waived  and  claim  be  presented 
ex  contractu,  §  2733,  p.  1613. 

Unliquidated  claims,  if  capable  on  liquidation  of  being  presented  ex  con- 
tractu, §  2734,  p.  1613. 

Only  debts  existing  at  date  of  filing  petition,  §  2735,  p.  1613. 

Contingent  claims  not  provable,  not  discharged,  §  2736,  p.  1613. 

Costs  incurred  prior  to  petition  dischargeable,  §  2737,  p.  1614. 

Costs  incurred  after,  not  discharged,  §  2738,  p.  1614. 

Judgment  for  breach  of  promise  of  marriage  discharged,  §  2739,  p.  1614. 

Judgment    for    tort    discharged,     though     liability     on     whicli     founded, 
not,  §  2740,  p.  1615. 
■  Claims  of  sureties  and  endorsers  against  bankrupt  principal  discharged, 
§   2741,  p.   1615. 

Stockholder's  liability  dischargeable  if  fixed,  §  2742,  p.   1616. 
Whether   bankrupt   allowed    attorney's    fees    out    of   estate,    for    petition    for 
discharge,  §  2087,  p.  1291. 

Who  may  apply  for 

.'\nj^  person  adjudged  bankrupt,  §  2418,  p.  1464. 

Corporations,  §  2419,  p.  1464. 

Intervening  insanity   does   not   afifect   right   tf),   §   2420,   p.   1464;   §   98,   p. 

95. 
Intervening  death    does  not  affect  right  to,  §  2421,  p.  1465;  §  98,  p.  95. 
No  discharge  of  individual  in  partnership  bankruptcy  unless   individual 
'adjudication,  §  2422,  p.  1465. 
Who  m'ly  oppose,  see  "Discharge — Opposition  to — Who      May   Oppose." 

Withholding  of  to  permit  levy,  §  1102,  p.  627;  §  2200,  p.  1353. 

Where  property  not  exempt  as  to  levying  creditor,  §  1104,  p.  628. 
Levying  on  exempt  property  before  and  after  discharge,  §  1102,  p.  627. 
Bankrupt  staying  creditor  pending  hearing  upon  discharge,  §  1103,  p.  628. 
No  withholding  of  if  exemptions  good  against  levy,  §  1105,  p.  632. 
Staying  of  to  permit  creditor  to   take  judgment,   to  fix   liability  on   surety, 

§   1524,  p.  906. 
Withholding  of  until  sufficient  accounting  made,  §  1852,  p.  1152  n. 
Withholding  of  to  permit  creditor  to  perfect  priority  rights,  §  2200,  p.  1353. 
Withholding  of  until  court's  rules  complied  with,  §  2480,  p.  1496;  §  2582,  p. 

1549. 

"DISCHARGEABILITY" 

Different  from  "Provability,"  §  633,  p.   376. 


2134  GENERAI.  INDEX. 

DISCHARGEABLE  DEBT 

Bankrupt  protected  from  arrest  on  civil  process  issued  upon,  §  463,  p.  303; 
§  464,  p.  304. 

DISCHARGED   DEBT 

Revival  of,  see  "Discharge — Revival  of  Discharged  Debt." 

DISCOUNTING  OF  NOTE 

Of  bankrupt,  not  a  preference,  §  1287,  p.  758. 

DISCOVERING  ASSETS 

See  "General  Examination  of  Bankrupts  and  Witnesses." 
Exhausting   entire   estate   in   attorneys'   fees   in   efifort   to   discover   assets,   § 
2061,  p.  1282. 

DISCOVERY 

Debtor  to  appear  and  also  to  produce  books  at  time  of  trial  when  second 

and  third  acts  of  bankruptcy  charged,  §  179,  p.  150. 
Query,  whether  requirement  applies  to  receiverships  as  acts  of  bankruptcy,. 

§  181,  p.  151. 
Destruction  or  loss  of  adequate  books  no  excuse,  §  180,  p.  150. 
Failure  to  keep  adequate  books  no  excuse,  §  180,  p.  150. 
Disjunctive  Allegations,  §  256,  p.  192. 

DISMISSAL 

Of  Appeal,  for  lack  of  necessary  parties,   §  2835,   p.   1656. 
Of  Bankruptcy  petition 

After  hearing  merits,  §  415,  p.  268. 
■    As  to  Part,  §  416,  p.  268. 

Costs  on,  after  hearing  merits,  §  417,  p.  269. 

Costs  on  dismissal  where  for  want  of  jurisdiction,  §  418,  p.  269. 

Effect  of  on  Receivership,  §  397,  p.  258. 

Respondent    allowed    expenses,    counsel    fees    and    damages    if    seizure 
made,  §  348,  p.  234. 

Where  property   seized,   improperly,   same   to   be   returned   without   de- 
duction for  care,  §  347,  p.  234. 

For  Want  of  Jurisdiction,  §  414,  p.  268. 

No  notice  requisite,  on  dismissal  after  hearing  merits,  §  420,  p.  271. 

Referee  may  dismiss  petition,  §  524,  p.  328. 

Reinstatement  on  dismissal,  without  notice,  §  421,  p.  271. 

Ten  days'  notice  to  creditors  to  be  givenon,  §  419,  p.  269. 

No  Dismissal  if  any  Creditor  is  willing  to  take  up  contest,  §  212,  p.  172. 
Of  "case"  on  completion  of  composition  distribution,  §  2397,  p.  1449. 
Of  discharge  petition  for  want  of  prosecution,  §  2480,  p.  1496.. 
Of  Discharge  petition,  see  ''Discharge — Petition  for — Dismissal." 
Notice  to  be  given  of,  §  565,  p.  343. 

No  dismissal,  if  any  petitioning  creditor  objects,  §  422,  p.  271. 
Of  Voluntary  Petition  by  court  of  its  own  motion,  §  196,  p.  160. 
Dispensing  with    Trn.^te^   Wlioic   Xo   Assets   and   No    Creditors   Present,   § 
871,  p.  498. 

DISQUALIFICATION 

Of  part  of  petitioning  creditors,  §  237,  p.   185. 


GENERAL  INDEX.  2135 

DISSOLUTION  OF  CORPORATION 

After  commission  of  act  but  before  petition  filed,  jurisdiction  not  defeated, 

§  97,  p.  93. 
After  filing  of  petition  eflfects  no  abatement,  §  101,  p.  99. 
Appointment  of  trustee  in,  as  act  of  bankruptcy,  §  160,  p.  138. 
Custody  of  receiver  superseded,  §  160.5,  p.  975  n. 
Ineffectual  to  avoid  third  act  of  bankruptcy,  §  142,  p.  125. 
Receiverships  for,  whether  "insolvency"  proceedings,  §  1634,  p.  1008. 

DISSOLUTION  OF  PARTNERSHIP 

Administrator   of   deceased   partner   in    possession    of   firm    assets    "adverse 

claimant,"  §  1671,  p.  1032.  • 

Suits  for,  instituted  before  four  months,  not  disturbed,  §  1590,  p.  963. 
Unless  operating  to  create  liens,  etc.,  §  1590,  p.  963. 

DISTINCT  TRANSACTIONS 

Whether  may  be  severed  in  cases  of  preference,  §  1421,  p.  842. 

DISTRAINT 

Landlord's  levy,  under  State  statute  not  superseded  by  bankruptcy,  §  1589, 
p.  962. 

DISTRIBUTING  AGENT 

On  confirmation  of  composition,  §  2392,  p.  1446. 

DISTRIBUTION 

In  composition  cases,   see  "Composition — Distribution  after  Confirmation." 

See  "Disbursements." 

Dividends,  see  "Dividends." 

"Dividends"    on    priority    claims   where    funds    insufficient,    §    2140,    p.    1319. 

Federal  Priorities  on,  see  "Priorities  under  State  and  Federal  Law." 

In  general,  §  2133,  p.  1317. 

In  Individual  Bankruptcies 

"Preferences"   and  "legal  liens"  of  firm,  not  nullified  by  bankruptcy  of 

individual  partner,  §  2265,  p.  1386;  §  2274,  p.  1391. 
One    partner    selling    out,     see     "Partnership — Selling     of     Partnership 

Shares." 
Partner's  right  of  indemnity   (where  surety)   for  paying  copartner's  in- 
dividual debt  provable  against  copartner's  individual  estate,  entitling 
to  subrogation  to  creditor's  claim,  §  2261,  p.  1385. 
Claim    of    retiring    partner    for    unpaid    purchase    price    of    partnership 
share,  not  to  share  pari  passu  with   partnership  creditors   in   surplus 
of  remaining  partner's  individual  estate,  §  2262,  p.  1385. 
Obligation    signed    in    individual    name,    prima   facie    individual    debt,    § 

2263,  p.  1386. 
Firm    debts- assumed   bj^   partner   provable   against   partner's   individual 

estate,  §  2264,  p.  1386. 
Trustee  in  individual  bankruptcy  of  partner  not  to  interfere  with  firm 

assets,  without  consent,  §  2248,  p.   1373. 
Member  bankrupt,  but  partnership  not,  remaining  partners  to  account 

for  bankrupt's  share,  §  2249,  p.   1373. 
In  what  court  trustee  to  seek  accounting,  §  2250,  p.  1373. 
Partnership  affairs  not  to  be  administered  in  individual  bankruptcy,  ex- 
cept by  consent,  §  2251,  p.  1373. 


2136  GKNERAI.  INDEX. 

DISTRIBUTION— Continued. 

May  be  so  administered  if  nonbankrupt  partner  consents,  §  2252,  p.  1374. 

"Consent,"  a  question  of  fact,  §  2253,  p.  1374. 

Partnership  property   comes   into   individual   bankruptcy   burdened   with 

lien  in  favor  of  firm  creditors,  §  2254,  p.  1374. 
Individual    creditors    exhaust    individual    property,    firm    creditors'    firm 

property — each  sharing  only  in  any  surplus  of  other,  §  2255,  p.  1375. 
Even  where  no  partnership  assets,  §  2256,  p.  1376. 
Even  where  no  partnership  assets  and  all  partners  insolvent,  §  2257,  p. 

1376. 
Joint   and   several   obligations   for   partnership   debt,   share   in   individual 

estate,  §  2258,  p.  1383. 
Partner's  right  of  contribution  for  paying  firm  debts,  provable  in  other 

partner's  bankruptcy,  §  2259,  p.  1385. 
On    marshaling    partnership    and    individual    estates,    solvent    partner's 

excess  contribution  provable  against  individual  estate,  §  2260,  p.  1385. 
Mere  Judgments  not  entitled  to  priority  as  such,  §  2137,  p.  1318. 
Order  of  priority  in  distribution  prescribed  by  act,  §   2134,  p.   1317.  ' 

In  partnership  bankruptcies 

In  general,  §  2230,  p.  1364. 

Assumption  of  debt  by  firm  must  be  acquiesced  in  by  creditor,  §   2242, 

p.   1371. 
Loan  to   enable  partner  to  furnish   contributory  share   not   firm   debt,   § 

2243,  p.  1371. 
]\Iere  joint  obligations,  not  amounting  to  partnership   debts,  not  allow- 
able   on  par  with  firm  debts,  §  2244,  p.   1371. 
Parol    evidence    admissible    to    show    obligations    apparently    individual, 

to  be  firm  debts,  §  2245,  p.  1372. 
Partnership   released   by   creditor's   acceptance   of   individual    obligation, 

§  2246,  p.  1372. 
Secret  partner's  claim,  not  debt  against  partnership,  §  2247,   p.   1372. 
Where   partnership   bankrupt,   individual   estates   brought   in   though   in- 
dividuals  not  adjudged  bankrupt,  §  2231,  p.   1365;   §   65,  p.   71;  §   2233, 

p.  1366. 
"Consent"  not  necessary,  §  2232,  p.   1366. 

Partnership  trustee,  trustee  also  of  individual  estates,  §  2233,  p.  1366. 
Separate   accounts   to   be   kept   and  joint   expenses   apportioned,   §    2234, 

.p.  1367. 
Property    originally    individual,    becoming    partnership,    to    be    admin.- 

istered  as  such,  §  2235,  p.  1367. 
Agreement  not  necessarily  express,  §   2236,   p.   1367. 
Marshaling   of  assets   and   debts,    whether   "proceedings   in   bankruptcy 

proper"  or  "controversies,"  §  2879,  p.  1689;  §  2867,  p.  1683. 
Partnership  debts  "provable"  against  individual  both  in  partnership  and 

in  individual  bankruptcy,  §  2237,  p.  1368. 
Individual  debts  "provable"  against  partnership  both  in  partnership  and 

in  individual  bankruptcy,  §  2237,  p.  1368. 
Partnership  creditors  to  exhaust  partnership  assets,  individual  creditors 

to  exhaust  individual   assets;   each  to   share   in   other   only  in   surplus, 

§  2238,  p.  1368. 
Section  5  refers  only  to  actual   partnerships,  not   to  those  by  "Holding 

out,"    §   2239,   p.    1370. 


GENERAL  INDEX.  2137 

DISTRIBUTION— Continued. 

Obligations  signed  by  firm  name,  prima  facie   allowable   as   firm  debts, 

§  2240,  p.  1370. 
Individual    debt    assumed   by   firm   provable   against   partnership   if    suf- 
ficient consideration,   §  2241,  p.  1370. 
"Preferences"    and   "legal    liens"    on   individual's   property-,    not   nullified 

by  bankruptcy  of  firm,  §  2265,  p.   1386. 
One    partner    selling    out,     see    "Partnership — Selling    of     Partnership 

Share." 
Reviewable  by  petition  to  revise,   §   2936,   p.   1716. 
Pendency  of  petition  for  confirmation  of  composition,   suspends,   §   2348,  p. 

1425. 
Priority  not  lost  by  taking  judgment  or  note,  nor  by  assignment   of  claim, 

§  2135,  p.  1317;  §  2182,  p.  1342;   §  2183,  p.   1342. 
Priority  not  lost  where  claim  also  a  secured  debt,  §  2136,  p.  1318. 
State  Priorities  on,  see  "Priorities  under  State  and  Federal  Law." 

Procedure  on,  §  2284,  p.  1396. 

To  be  based  on  order  of  court,  §  2284.  p.  1396. 
Exceptions  to  order,  §  2293,  p.  1399. 
"Proof"    of   priority    claim    requisite,    except    for    taxes,    §    2138,    p.    1318;    § 

2185,  p.   1344. 
Referee   may  order,   §   536,  p.   331. 
No    Special    form    of   proof    nor    assertion    of   demand    requisite,    §    2139,    p. 

1318. 
Subrogation  to  rights  of  various  parties  in  the  distribution  of  assets 
See   "Subrogation   on   Assignment   of   Claims   after    Bankruptcj'." 
See  "Subrogation — Equitable." 
Taxes,  see  "Taxes." 

Wages  of  Workmen,  clerks  and  servants,  see  "Workmen,  Clerks  and  Serv- 
ants— Wages  of." 

DISTRIBUTIVE  SHARE  IN  DECEDENT'S  ESTATE 

When  will  pass  to  trustee,  §  972,  p.   545. 

Executor  or  Administrator  holding,  not  "adverse  claimant,"  §  1670,  p.   1032. 

% 
DISTRICTS 

Of  Referees,  §  500,  p.  319. 

DITTO  MARKS 

In  schedules  to  be  avoided,  §  486,  p.  311. 
Whether  "due  scheduling,"  §  2765,  p.   1624. 

DIVERSE  CITIZENSHIP 

Xot  requisite  in  trustee's   suits  in  U.   S.  District  Court,  §   1754,  p.   1073. 

DIVIDENDS 

Adjusting  equities  in  among  creditors,  §  2219,  p.  1361. 
Jurisdiction,  §   2219,  p.   1361. 
Postponing  dividends  of  some  creditors  to  others,  because  of  equities,  § 

2220,  p.  1361. 
Dividing  fund,  on  setting  aside  void  transfer,  solely  among  "subsequent" 

creditors,  §  2221,  p.  1362. 


< 


2138  GENERAL  INDEX. 

DIVIDENDS— Continued. 

Requiring   surrender   of   illegal    advantage   before    allowing   to    share   irs 

dividends,  §  2222,  p.   1363. 
Requirement    of   surrender   of   preferences   before   allowing   to   share   in 
dividends,  §  2223,  p.   1363. 
Attorney's  lien  on 

Right  to  lien,  §  2229,  p.  1364. 
Bankruptcy  court's  jurisdiction,  §  2228,  p.   136-1. 
Bankrupt   as    garnishee,   pending   suit    stayed    until    dividend   ascertained,    | 

1646,  p.  1013. 
Dividend  Sheets,  duty  of  referee  to  prepare,  §  507,  p.  321. 
Duty  of  Referee  to  Declare,  §  507,  p.  321. 
To  general  creditors,  §  2206^0.  1358. 

To  be  paid  in  twoof^i^g.  dividends,  §  2207,  p.  1358. 

Purpose   of   two    dividends   pnitection   of   dilatory   creditors,    §    2208,   p. 

1358. 
First  dividend,  §  2209,  p.  i:;.39. 
Dividend    within.'  thirty    days    after    adjudication    required    only    wdiere 

money  in  gitete,  §  2210,  p.  1359. 
SubsequentjP^idends,  §  2211,  p.  1359. 
Dividends^^ed  not  be  returned  because  of  filing  of  subsequent  claims, 

§   2212,*^  1359. 
Claims   subsequently   filed,   to   receive   prior   dividends   before   new    divi- 
dends declared,  §  2213,  p.   1359. 
Need  not  retain   funds  until   expiration  of  year's   limitation  for  proving 

claims,  §  2214,  p.  1360. 
"Ten  days'  notice"  of  "dividends,"  §  2215,  p.  1360;  §  2289,  p.  1398. 
"Dividend  sheet,"  §  2216,  p.   1360. 
Unclaimed  dividends,  §  2217,  p.  1360. 
Contracting   to   postpone    one's    dividend   to    that   of    other    creditors,    g 

2218,  p.  1361.. 
Declaration  of,  §  2292,  p.  1399. 
Notice  to  be  given  of,  §  565,  p.  343. 
Od  Priority  claims,  §  2140,  p.  1319. 
ATS?)^ovided  for  by  First  English   Bankruptcy  Act,  34  Henry  VIII,   Introd- 

%  P-  6. 
RigHt  to  as  between  sureties  and  creditors 

Bankrupt  estate  not  to  pay  two  dividends  on  same  claim.  §  1520,  p.  904. 
Creditors  receiving  dividend  out  of  maker's  estate  first,  may  prove  only 

for  unpaid  balance  against  surety,  §  1521,  p.  905. 
Creditor  receiving  dividends  out  of  surety's  estate   first,   surety  entitled 
to    subrogation    to    creditor's    claim    against    maker's    estate    in    pro- 
portion to  dividend  paid  by  surety,  §  1522,  p.  905. 
Subjecting  of  at  third   party's   suit,  suit   stayed   until   dividends   ascertained., 
§  1646,  p.  1013. 

Subjecting  of  by  garnishment  and  equitable  action 

Not  to  be  subjected  by  garnishment,  §  2224,  p.  1363. 

Probably  may  be  by  equitable  action,  §  2225,  p.  1363. 

Bankruptcy  court  no  jurisdiction,   §   2226,   p.   1363. 

If  bankrupt  garnishee,  trustee  to  respond,  §  2227,  p.  1363. 
Trustee's  duty  to  pay  within  ten  days,  §  918,  p.  522. 
"Withholding  of,  until  expiration  of  year  not  requisite,  §  731,  p.  439 


GENERAIv  INDEX.  2139 

DIVIDEND  SHEETS 

Duty  of  reffree  to  prepare,  §  507,  p.  321. 

DIVIDING  OF  INDEBTEDNESS 

Ineffectual  in  cases  of  preferences,  §  1421,  p.  843  n. 

DOCUMENTS 

Include  "books,"  "deeds,"  "instruments,"  etc.,  §  955,  p.  536. 

Pass  to  trustee,  §  954,  p.  536. 

Production  of  enforceable,  §  1548,  p.  926. 

Not  Relating  to  bankrupt's  property,  do  not  pass,  §  957,  p.  536. 

Title  itself  passes — Trustee  becomes  owner,  §  956,  p.  536. 

DOES  BANKRUPTCY  SEVER  RELATION  OF  LANDLORD  AND  TEN- 
ANT, §  653,  p.  393. 

See  "Contractual  Relations." 

DOMICILE 

See  "Residence." 

State  Law  of,  governs  exemptions,  §  1038,  p.  591. 

Whether    court   of   bankrupt's    domicile    may    set    apart    homestead   in    real 
estate  in  another  State  having  different  homestead  law,  §  1039,  p.  592. 

DORMANT  JUDGMENTS 

Whether  provable  or  not,  §  684,  p.  415. 

DOUBLE   EXEMPTIONS 

Xone  to  be  allowed,  out  of  same  fund,  §  1088,  p.  616. 

DOWER 

Inchoate 

Does  not  pass  to  trustee,  §  971,  p.  544. 

Unimpaired  by  bankruptcy,   §   1166,  p.   686. 

Cannot  be  set  off  in  bankruptcy  court  without  wife's  consent,  §   1973, 
p.  1227;  §  1974,  p.  1227. 
Right  to  on  bankrupt's  death  after  filing  of  Petition,  §  99,  p.  95. 

'DUE  DATE" 

To  be  stated  in  Proof  of  claim,  §  598,  p.  357. 

DUE  PROCESS  OF  LAW 

Bankruptcy  Laws  Do  not  Violate  Constitutional  Guaranty  of,  §  12,  p.  28. 
Orders  on  Bankrupt  not  to  be  so  Summary  as  to  Deprive  of  Fundamental 
Rights,  §  23,  p.  39. 

Reasonable  notice  requisite,  §  1838,  p.  1130. 
Due  hearing  requisite,  §  1839,  p.  1132. 

Courts  proceed  with  great  caution  in  granting  summary  order,  §   1840, 
p.  1134. 

"DULY  MADE" 

Discharge  may 'be  pleaded  as,  when,  §  2683,  p.  1595. 

"DULY  PROVED" 

Procedure  where  claim  duly  proved  and  not  objected  to,  §  813,  p.  474. 
Where  claim  not  duly  proved,  procedure,  §  814,  p.  474. 


2140  GEXERAL  IXDEX. 

"DULY  SCHEDULED" 

Debts  not,  see  "Discharge — Debts  Excepted  from — Debts  Iv'ot  Duly  Sched- 
uled." 

See    "Schedules — What    Constitutes    Due    Scheduling." 

Debts  Discharged  by  Confirmation  of  Composition,  if,  §  2352,  p.  1427. 

Individual  liability  for  firm  debts,  discharged  in  individual  bankruptcy,  ir- 
respective of  firm  assets,  if,  §  2795,  p.  1635. 

Partnership  debts  must  be,  else  not  affected  bj^  individual  discharge,  § 
2797,  p.  1640. 

As  to  Time,  different  in  composition  from  what  it  is  in  discharge,  §  2353,  p. 
1427. 

DUTIES 

Of  Referee,  see  "Referee  in  Bankruptcy,  Duties  of." 

DUTIES  OF  BANKRUPT 

See  "Bankrupt,  Duties  of." 

ECONOMY 

Policy  of  Act  is  toward  strict  economy,  §  2011,  p.  1247;  §  2048,  p.  1271;  § 
2121,  p.  1308;  §  24,  p.  39;  Introd.   (m),  p.  14. 

EFFECT   OF  ADJUDICATION   ON   THE   RIGHTS   OF   PARTIES 

See  "Record." 

See  "Adjudication." 

See  "Collateral  Attack  on  Adjudication." 

ELECTION  OF  REMEDIES 

After  election,  claimant  foreclosed,  §  639,  p.  381. 

Attack  on  Preferences  in  State  Court  previous  to  filing  involuntary  petition. 

not  an,  §  226,  p.   178. 
Reclaiming  part  still   in  trustee's  hands,  proving  claim   for  balance,   §   1880. 

p.  1168. 
\\'aiving  tort  and  proving  ex  contractu,  §  637,  p.  378;  §  1880,  p.  1168. 

ELECTION  OF  TRUSTEE 

See   "Trustee   in   Bankruptcy— Election   of." 

EMBEZZLEMENT 

While  officer  or  in  fiduciary  capacity,  not  discharged,  §   2783,  p.   1628. 

EMPLOYEES 

Excluded  in  determining  number  of  creditors  to  join  in  Petition,  §  199, 
p.   164. 

EMPLOYER  OF  BANKRUPT 

Summary  Jurisdiction  over,  none  exists,  §  1679,  p.  1034;  §  1683,  p.  1035-. 

EMPLOYMENT 
Contracts  of 

Damages  for  breach  of,  provable,  §   685,  p.  415;  §   686,  p.  416. 
Xot  entitled  to  priority,  §   2166,  p.   1335. 

ENCUMBERED  PROPERTY 

Passes  to  trustee,  §  999,  p.  556. 


GENERAi,  inde;x.  .  2141 

ENDORSER 

Bankrupt's  contract  of  endorsement  a  provable  debt,  §  643,  p.  383. 
Claims   of  against  bankrupt  maker,  discharged,  §  2741,   p.   1615. 

For  Bankrupt 

Impliedly    Excepted   by    statute    from    rule    that    contingent    claims    not 

provable,  §  642,  p.  383. 
•  Payment  by,  not  preferences,  §  1288,  p.  759. 
Payments  enuring  to  benefit  of,  when  preferences,  §  1310,  p.  767. 
Payment  to  present  owner   of  claim,   preference  both   to  him   and   also 

to  transferrer,  if  transferrcr^remains  bound  as  endorser,  S  1311,  p.  767. 

ENDOWMENT  POLICIES 

Bankrupt's  interest  in,  passes  to  trustee,  §  1006,  p.  559. 

ENFORCEMENT  OF  LIENS 

Enforcement  of  lien  obtained  before  four  months,  not  a  commission  of  third 
act  of  bankruptcy,  §  143,  p.  125. 

ENGLISH  BANKRUPTCY  LAW 

Acts   of   Bankruptcy   under,   Introd.    (h),   p.   9. 

.First   English    Bankruptcy   Act,   34   Henry  VHI,   Introd.    (g),   p.    5. 
Origin  and  History,  Introd.  (f),  p.  3. 
Acts  13th  Elizabeth  and  1st  and  23rd  James  I. 
Queen  Anne's  Act,  Introd.   (i),  p.  10. 

True  Origin  American  Bankruptcy  Law,   Introd.    (e),  p.   3. 
Who  could  be  declared  bankrupt  by,   Introd.   (g),  p.   5;   Introd.   (h),  p.   9. 

ENTITIES 

Partnerships  as,  §  59,  p.  65. 

ENTRY  OF  APPEARANCE 

See  "Appearance — Entry  of." 

Reciuisite  to  oppose  confirmation  of  composition,  §  2378,  p.  1440. 

EQUITABLE  ACTION 

Dividends   sutfected  by,   §   2225,   p.   1363. 

EQUITABLE  ASSIGNMENT 

Agreement  to  insure  operating  as,  §  1253,  p.  740. 

EQUITABLE  LEVY 

Whether  bankruptcy  operates  as,  §  1212,  p.  709;  §  1213,  p.  713;  §  1214,  p.  714. 

EQUITABLE  LIENS 

To  Cover  Future  ^Advances,  good,  though  made  within  four  months,  §  1223, 

p.  725. 
Upon  property  already  pledged  and  in  pledgee's   hands,  §   1252,  p.   740. 
Not  requiring  to  be  recorded,  good,   §  1372,  p.   800. 
Trustee  bound  by  ecjuitablc  liens  created  by  bankrupt,  §  1145,  p.  676;  §  1150, 

p.  678. 

EQUITABLE  SEQUESTRATION,  §   1235,  p.  734;   §   1242,  p.  737. 


2142  •  GENERAL  INDEX. 

EQUITIES 

Adjusting,  among  creditors,  §  2219,  p.   1361. 

Dividing  fund,  on  setting  afiide  void  transfer,  solely  among  "subsequent  cred- 
itors," §  2221,  p.  1362. 
Postponing  dividends  of  some  creditors  to  others  because  of,  §  2220,  p.  1361. 

EQUITY 

Bankruptcy  Proceedings,  Proceedings  in,  §  20,  p.  37. 

Notwithstanding  Jurj^   §   20,  p.  37. 
Procedure  on  Appeal  in  bankruptcy  iollows   equity  appeal,  §   2959,   p.   1725. 
Rules   of.   Control,  §   20,  p.   37. 

EQUITY  RULES 

Of  Federal  Court,  govern  '"general  examinations,"  §   1549,  p.  926. 
Followed  where   acts,   forms   and   orders   silent,   §   1932,   p.   1208. 

ESTOPPEL 

Against  Bankrupt,   good   against  trustee,   §   1149,   p.   678. 
By  Connivance  at  act  of  bankruptcy,  §  221,  p.  175. 

Actual  connivance  essential  to,  §  223,  p.  177. 

Actual  connivance  at  general  assignment  maj^  suffice,  §  224,  p.   178.^ 

Express  assent  to  general  assignment    may  suffice,  §  224,  p.  178. 

Mere  proving  of  claims  under  general  assignment  or  receivership  not, 
§  222,  p.  176. 

No   estoppel    of    corporation    creditor    by   officer    acting   as    assignee,    § 
225,  p.  178. 
To  Set  Aside  Composition,  §  2402;  p.  1452. 

EVIDENCE 

Admissibility  of,  referee  to  rule  on,  §  552,  p.  335;  §  1554,  p.  928. 
Admissions   against  interest,    disbelieved 'because   witness   enormous   liar,    § 

1851,  p.  1151. 
Admissions  of  insolvency  by  bankrupt  not   competent  as   against  creditor, 

§  "1354,  p.   791. 
Agent's  admission  not  binding  unless  within   scope  of  authority,   §  559,  p. 

339.  • 

Bankrupt's  books  admissible  on  question  of  insolvency,  §  1355,  p.  791. 
Circumstantial  evidence  sufficient  to  prove  present  possession,  on  summary 

order,  §  1849,  p.  1146. 
Dealings  between  Near  Relatives  to  be  scrutinized  with  care,  §  556,  p.  338. 
Degree  of  proof  requisite  on  discharge,  §  2638,  p.   1571;  §  2639,  p.  1572;  S 

2640,  p.  1572. 
Degree  of  proof  requisite  to  warrant  punishment  for   contempt,   for   diso- 
bedience of  summary  order  on  bankrupt,  §  1842,  p.  1137;  §  1859,  p.  1157; 

§  2340,  p.  1419. 
Degree    of   proof    requisite    to    warrant    summarj'    order    on    bankrupt    and 

others  to  surrender  assets,  §  1842,  p.  1137. 
Duty  of  Referee  to  preserve,  §  515,  p.  322. 
Failure    of    creditors    to    institute    legal    proceedings    to    recover,    tends    to 

rebut  "concealment  of  assets,"  §  2519,  p.  1517;  §  2647,  p.  1574. 
Failure  to  produce  important  witness  if  accessible,  §  1851,  p.   1151;  §  2646, 

p.  1574. 


GENERAL  INDEX.  2143 

EVIDENCE— Continued. 
Fraudulent  intent 

Not  necessarily  negatived  because  property  claimable  as  exempt,  §  2493, 

p.  1505. 
But  such  fact  of  weight,  in  determining  intent,  §  2494,  p.  1505. 
Incontestible    evidence    requisite   to    overcome    bankrupt's    sworn    denial    of 
present  possession  of  assets,  to  warrant  summary  order,  §  1844,  p.  1144. 

Of  Insolvency 

See   "Insolvency." 

Sales  by   Receiver  in   State   Court  or  by  Trustee  in  bankruptcy  when 
competent  as  evidence  of,  §  1358,  p.  792. 
Inventory    and    appraisement    in    bankruptcy,    whether    admissible    against 

creditor,  §  1357,  p.  791. 
Not   entire,  but   only  "summary"   of,   to   be   certified  on   review,   §   2855,   p. 

1666. 
Not  to  be  pleaded,  §  254,  p.  191;  §  2606,  p.  1558;  §  1767,  p.  1075. 
Obligations    given    on    Eve    of    bankruptcy    to    be    scrutinized    with    care,    § 

557,  p.  338. 
Referee  to  hear,  §  553,  p.  337. 

Schedules  inadmissible  against  creditor,  §  1356,  p.  791. 
On  which  Summary  order  for  surrender  based,  whether  maj^  be  re-examined 

on  contempt,  §  1857,  p.  1155. 
See,  also,  "Witnesses." 

EXAMINATION 

Of  bajikrupt  to  be  at  first  meeting,  §  593,  p.  354. 

See  "General   Examination   of  Bankrupt  and  Witnesses." 

EXAMINATION  OF  BANKRUPT 

See    "General    Examination    of    Bankrupt    and    Witnesses." 

EXAMINATION  OF  CLAIMS 

.\.  duty,  of  the  bankrupt,  §  459,  p.*  303.  '    • 

EXAMINATION  OF  WITNESSES 

See   "General   Examination   of   Bankrupt   and   Witnesses." 

EXCEPTED  DEBTS 

See  "Discharge — Debts  Excepted  from." 

EXCEPTION 

To  Findings   of  Fact,  requisite  else   findings   conclusive  on  review,  §   2843, 

p.  1661. 
Formal  Written  Exception  to  referee's  order  not  requisite,  §  2845,  p.   1661. 
To   Order  requisite,   else   no  review,  §   2842,  p.   1661. 
Must  be   Specific,  not  "Broadside,"  §  2844,  p.   1661. 
To  trustee's  report  of  exempted  property. 

Who  may  except,  §  1081,  p.  613. 

Bankrupt  may  except,   §   1081,  p.   613. 

Creditors  maj--  except,   §   1081,  p.   613. 

Creditors    must    file    exceptions    within    twenty    days,    §    1082,    p.    613. 

Schedule    B5,    trustee's    report    and    written    exceptions    only    pleadings 
requisite,  §  1083,  p.  614. 


2144  GENERAI,  INDEX. 

EXCEPTION— Continued. 

Whether  exceptions  to  be  verified,  §  1084,  p.  614. 

Burden  of  Proof  on  Bankrupt,   if  exceptions  amount  to  general   denial, 
§   1085,  p.    615. 
To  trustee's  reports  and  accounts,  §  2293,  p.  1399. 
To   be    tiled   promptly,   §   2294,   p.   1399. 
Review  of,  §  2287,  p.   1398. 

EXCESS  OF  SECURITY 

Xo  judgment  in  bankruptcy  proceedings  against  bankrupt  for,  §  764,  p.  454. 

EXCHANGES  OF  PROPERTY  OR  SECURITY 

Xot  preferences  where  of  equal  value,  §  1295,  p.  760;  §  1320,  p.  774;  §  1374, 
p.   802. 

But  if  new  security  exceed  value  of  old,  preference  arises,  §  1321,  p.  775. 

If  securities  remain  same  but  indebtedness  secured  is  increased  by  ante- 
cedent debts,  preference  as  to  antecedent  indebtedness,  §  1322,  p.  776. 

Withdrawal  of  old  security  and  substitution  of  new  must  be  contempo- 
raneous,  §   1324.   p.    776. 

Payment  of  Secured   Debt,   thereby   releasing  securities,   §   1325,   p.   776. 

Liens  or  other  transfers,  partly  on  present  consideration,  partly  on  past, 
not  wholly  void  but  valid  pro  tanto,  §  1326,  p.  777. 

EX  DELICTO 

Claim,  see  "Claim  Ex  Delicto." 

Onl}'  such  tort  claims  as  are  presentable  as  if  on  implied  contract,  may  be 
liquidated,  §  706,  p.  425;  §  710,  p.  427. 

EXECUTION 

Against  Trustee  or  Receiver  on  Judgment  for  Conversion  of  third  person's 
property,  §  1785,  p.  1081. 

Levying  of  on  exempt  property 

While  in   trustee's   hands,  §   1107,<  p.   633. 
After  exempt  property  set  apart,  §  1108,  p.  633. 

Nullified   by  bankruptcy,  whether   costs   provable,   §   693,   p.   420. 

Permitting  creditors- to  levy  after  bankruptcy,  in  order  to  "arm  with  proc- 
ess," §  1239,  p.  735. 

Possession  under  writ  of  General,  whether  superseded  by  bankruptcy,  § 
1582,   p.  954   n;   §   1827,   p.   1122   n;   §   1816,   p.   1114. 

Proceeds  of,  in  sheriff's  hands,  where  legal  proceedings  nullified  by  bank- 
ruptcy, pass  to  trustee,  §  1479,  p.  881. 

Restraining  sale  under,  §  1902,  p.  1189;  §  1903,  p.  1190. 

Return  of  Unsatisfied,  not  always  prerequisite  to  trustee's  plenary  action 
against  adverse  claimant,  §  1732,  p.  1065. 

Stay  of 

On  review  of  referee's  order,  §  2860,  p.   1669. 

EXECUTION  CREDITOR 

See  "Attaching  Creditor." 

EXECUTION  OF  PAPERS  BY  BANKRUPT 

Duty  of  l)ankrupt,  §  460,  p.  303. 

Enforceable  to  aid  passing  of  title,  §  1115,  p.  636. 


GENERAL  INDEX.  2145 

EXECUTION  OF  PAPERS  BY  BANKRUPT— Continued. 

Order  Requiring  Bankrupt  to  assign  insurance,  §  19,  p.  36;  §  1009,  p.  561. 
Property   in   foreign   countries   requires,   to   pass   title   to  trustee,   §   1114,   p. 

636. 
Summarj^  jurisdiction  to  order,  §  1835,  p.  1128. 

EXECUTION  OF  PAPERS  BY  THIRD  PARTY 

Incidental  power  to  compel,  on  marshaling  of  liens,  §  1SS7,  p.  1181. 

EXECUTION  OF  PAPERS  BY  TRUSTEE 

Jurisdiction    to    require,    upon    ordering    trustee    to    surrender    property    to 
rightful  owner,  §  1873,  p.  1163. 

EXECUTOR 

Holding  legacy  to  bankrupt,  not  "adverse  claimant,"  §  1670,  p.   1032. 

EXEMPTIONS 

Allowance   or   refusal    of,   a    question   in   bankruptcy   proceedings   proper,    § 
2866,  p.  1682. 

Amendment  of  claim  of 

Claim  may  be  inserted  or  corrected,   by  amendment,   §   1066,  p.   608. 

Leave  or  order  to  amend  requisite,   §   1067,   p.   608. 

Amendment  required  by  court  where   exemptions   claimed  improperly, 
§   1068,  p.  608. 

Leave  to  amend  liberally  granted,  §  1069,  p.  609. 

Leave  to  amend  refused  where  omission  made  with  fraudulent  intent, 
§   1070,  p.  609. 

Leave  to  amend  refused  where  third  parties  injured,  §   1070,  p.  609. 

Amendment  reverts  to  date  of  filing  original  claim,  §   1071,   p.  610. 

None  after  obtaining  possession,  to  defeat  lienholders  as  to  whom  prop- 
erty not  exempt,  §  1031,  p.  578. 
Appealability  of  allowance  or  refusal,  §  1109,  p.  634;  §  2906,  p.  1704. 
Assets  all  exempt,  yet  trustee  to  be  appointed,  §  872,  p.  499. 
Bankrupt's  Attorney's  Fees,  none  allowable  in  contest  over,  §  2088,  p.  1293. 
Bankrupt  staying  creditor  pending  hearing  on  discharge,  §  1103,  p.  628. 
Claim  for,  to  give  particular  description,  §  491,  p.  312;  §  1052,  p.  603. 
Claiming  of 

Amendment,   see   '"Exemptions — Amendment   of   Claim   of.". 

Description  to  be  as  of  date  of  adjudication,  §  1053,  p.  604. 

Claiming   Money  when  no  actual   money,  but  onlj^   goods   in   estate,   § 
1O54,  p.  604. 

Claiming  so  much  worth  out  of  a  mass,  §  1055,  p.  604. 

In  Alortgaged  property,  §  1056,  p.  605. 

Claiming  "Proceeds"  where  property  still  in  specie,  §  1057,  p.  605. 

Claiming  "Proceeds"  where  property  no  longer  in  specie,  §  1058,  p.  606. 

Estimated  values  to  be  given,  §  1059,  p.  606. 

State  Statute  to  be  mentioned,  §  1060,  p.  606. 

Claim   to  be  made  by  bankrupt,   not  by  mortgagee,   assignee   or   other 
third  person,  §  1061,  p.  606. 

Wife  claiming  where  bankrupt  fails  or  refuses,  to  claim,  §   1045,  p.  594; 
§  1062,  p.  607. 

Failure  to  claim  exemptions  deemed,  prima  facie,  waiver,  §  1063,  p.  607. 

Failure  to  claim,  not  necessarilj'-  fatal,  §  1064,  p.  607. 

2  Rem  B— 60 


2146  GENERAL  INDEX. 

EXEMPTIONS— Continued. 

Failure  to  describe  particularly  not  necessarily  fatal,   §   1064,   p.   607. 
Claim   of  "proceeds"'   may   authorize   trustee   to   sell   with    remainder   as 

entirety,  §  1065,  p.  608. 
Time  and  manner  of  claiming  and  setting  aside  exemptions  fixed  by  act 

itself,  §  1048,  p.  595. 
But  statutory  regulations  of   State   requisite  to   perfect  claim  must   be 

complied  with,  §  1041,  p.  593  n;  §  1047,  p.  595  n;  §  1048,  p.  600. 
To  be  in  writing,  §  1049,  p.  603. 

Claim  of  exemptions  to  be  sworn  to,  §  1049,  p.  603. 
Exempt  property  to  be  scheduled  as  assets  elsewhere  in  Schedule  B  as 

well  as  in  schedule  B  5,  §  490,  p.  312;  §  1050,  p.  603. 
Claim  to  be  filed  with  schedules,  §  1051,  p.  603. 
Property  to  be  particularly  described,  §  491,  p.  312;  §  1052.  p.  603. 
Contesting  of,  estate  not  reopened  for  purpose  of,  §  2306,  p.  1403. 
Death  occurring  after  adjudication,  exempted  property-  passes   to   adminis- 
trator, §  100,  p.  97. 
Duty  of  bankrupt  to  file  claim  of,  §  477,  p.  308. 
Exempt  property  does  not  pass,  §   1022,   p.   570. 
Exempt  property  to  be  Scheduled.  §  490,  p.  312;  §  1050,  p.  603." 

Jurisdiction  of  bankruptcy  court  over 

Court  may  enjoin  interference    with  trustee's  possession,  §  1028,  p.  577. 

Is  exclusive,  §  1026s  p.  577. 

Court  will  not  necessarily  order  surrender  from  bankrupt,  §  1029,  p.  578. 

Trustee  entitled  to  possession  long  enough  to  set  apart,  §  1027,  p.  577. 

Court  will  not  authorize  trustee  to  intervene  in  attachment  case  to  ob- 
tain possession,  §  1030,  p.  578. 

After  obtaining  possession,  no  amendment  of  exeinption  claim  to  de- 
feat lienholders  as  to  whom  property  not  exempt,  §  1C31,  p.  578. 

Bankruptcy  Court  maj^  not  administer,  §  1032,  p.  578. 

Bankruptcy  Court  may  only  determine  and  set  apart,  §  1032,  p.  578. 

Bankruptcy  Court  will  not  deliver  to  bankrupt  simply  because  claimed 
exempt,  if  third  party  claims  ownership,  §  1033,  p.  584. 

Waiver  of  exemptions  in  notes,  §  1034,  p.   585;   §  2679,  p.  1593. 

Waiver  of  exemptions"  in  leases,  §  1034,  p.  587  n. 

Property  not  exempt  as  to  "necessaries,"  §  1035,  p.  587. 

Property  not  exempt  as  to  "manual  work  and  labor"  claim,  §  1035,  p. 
587. 

Property  not  exempt  as  to  ''unpaid  purchase  price,"  §  1035,  p.   587. 

Property  not  exempt  as  to  judgments  for  torts.  §  1035,  p.   587. 

"Sales  of  merchandise  in  bulk,"  whether  bankrupt  entitled  to  exemp- 
tions out  of  unpaid  purchase  price,  until  creditors  paid,  §  1036,  p.  590. 

Exempt  property  not  in  possession  not  to  be  taken  for  benefit  of  parties 
as  to  whom  not  exempt,  nor  for  benefit  of  lienholders,  §  1037,  p.  591. 

Exempt  property  already  set  off  not  to  be  retaken  for  benefit  of  parties 
as  to  whom  not  exempt,  §  1037,  p.  591. 

Levying  direct  execution,  after  exempt  property  set  apart,  §   llOS,  p.   633; 

§  1915,  p.   1194;  §  2679,  p.  1593. 

No  restraining  order  to  prevent,  §  1915,  p.  1194. 
Levying  on  exempt  property  before  and  after  discharge,  §  11C2,  p.  627. 
Levy  on  Exempt  Property 'whether  Restrained  for  other  purposes  than  for 

interposition  of  discharge,  §  1910,  p.  1191. 


GENERAL  INDEX.  2147 

EXEMPTIONS— Continued. 

Liens  by  legal  proceedings  upon  exempt  property,  within  four  months 
Whether  nullified  by  bankruptcy,  §   1100,  p.  624. 

Property  claimable  as  exempt  but  not- claimed,  levies  nullified,  §   1101, 
p.  627. 
Whether  Liens  upon  or  other  Transfers  of  Exempted  property,  Preferences, 

§  1292,  p.  759. 
Life  insurajice  policies  exempt  by  State  law  do  not  pass  to  trustee,  §  1003, 

p.   557. 
Ordering  surrender  to  sheriflf  holding  writ,  §  110?,  p.  633. 
Partner  selling  out  share  to  enable  remaining  partner  to  claim   exemptions, 

§  2271,  p.  1389. 
Paying  off  liens  on  exempt  property  on  eve  of  bankruptcy,  no   subrogation 

of  trustee,  §  2283,  p.  1396. 
Permitting  attachment  to  be  levied,  §  1107,  p.  633. 

Property  exempted,  persons  entitled,  and  law  governing 

State  law  of  domicile  governs,  §  1038,  p.  591;  §  1041,  p.  592. 

State  law  governs  kind  and  amount  and  person  entitled,  §  1040,  p.  592. 

State  Law  as  construed  by  highest  State  Tribunal  governs,  §  1042,  p. 

593. 
But  where  decisions  not  authoritative  or  conflicting,  Bankruptcy  Court 

Construes,  §  1043,  p.   593. 
Whether  court  of  bankrupt's  domicile  may  set  apart  homestead  in  real 
estate   in   another    State   having   different   homestead   laws,   §    1039,   p. 
592. 
May  select  in   kind,   regardless   of  impairment   of   remainder,   §   1044,   p. 

594. 
Whether  wife  may  claim  exemptions  where  bankrupt  husband  neglects, 

§  1045,  p.  594;  §  1062,  p.  607. 
Converting   nonexempt  property   into   exempt   on   eve   of   bankruptcy,   § 

1046,  p.  594. 
Amendment  of  wages  exemption  law,  §  1041,  p.  593  n. 
Whether    exemptions    apply    to    all    incidents    of    the    propertj^    §    1047, 

p.  595  n. 
WMiether  applies  to  crops  growing  on  homestead,  §  1047,  p.  595  n. 
No  double  exemption,  §  1047,  p.  596  n. 

Various  instances  of  exemptions  allowed  and  disallowed  in  accordance 
with  State  law,  §  1047,  p.  594  n. 
Qualified  stay,  where  levy  sought  on   exempt  propertj^    not   exempt   as  to 

levy  sought,  §'  2711,  p.  1605. 
Recognition,  Enforcement  and  Charges  of  Exemption  Laws  not  a  Delega- 
tion of  Legislative  Power,  §  11,  p.  27. 
Recognition  of  Diverse  Exemption   Laws   and   Prioritj-   Laws  not   Lack  of 
Uniformit}',  §  5,  p.  22;  §  1023,  p.  571. 

On   Recovery   of   Preferences,   Fraudulent   Transfers,   and  nullified  Assign- 
ments 

W'hether  allowable   on   recovery   of  preferences,   §   1094,   p.   618;   §   1095,  ' 

p.  619. 
Whether    allowable    on    recovery    of   fraudulent!}-    transferred    property, 

§  1094,  p.  618;  §  1096,  p.  622. 
Wliether  allowable  where  general  assignments  nullified  by  bankruptcy, 
§  1094,  p.  618;  §  1097,  p.  623. 


2148  GENERAL  INDEX. 

EXEMPTIONS— Continued. 

Requirements  of  State   Statutes   for   Claiming,  to  be   complied  with,   §   1041, 

p.  593  n;  §  1047,  p.  595  n;  §  1048,  p.  600. 
Reviewable  only  by  petition  to  revise,  §  2930,  p.   1715. 
Review  of 

Allowance    or    refusal    of,    a    question    in    "proceedings    in    bankruptcy" 
proper,  §  2'866,  p.  1682. 
Review  under  Section  24   (b)   proper,  §   1110,  p.   634. 
No   review  unless   trustee   appointed,   who   has   set  apart   or   refused   to   set 

apart,    §    1111,   p.   634. 
Right  to,  when  bankrupt  dies,  §  99,  p.  96. 

Selling   exemptions   with   remainder   of   Assets   as    Entirety,   §    1065,   p.    608; 
.    §    1089,    p.    616. 
Setting  Apart  cf 

Burden  of  proof,  §  1085,  p.  615. 

Order  approving  or  disapproving  trustee's  repor.t,  res  judicata,  §   1086, 

p.  615. 
Pleadings  necessary,  §  1083,  p.  614. 
Time   limit   for   filing   exceptions,    §    1082,   p.   613. 
Verification   of  exceptions,   whether   necessary,   §   1084,   p.   614. 
Who  may  except  to  trustee's  report  of,  §  1081,  p.  613. 
Judgment  of  State  Court  as  to  Exemptions  in  same  fund  res  judicata, 

§   1087,  p.   615. 
No  second  exemption  out  of  same  fund,  §  1088,  p.  616. 
Selling   e.xemptions   with   other   assets    as    entirety,   and   allowance    out 

of    proceeds,    §    1089,    p.    616. 
Trustee    not    entitled    to    indemnity    before    delivering    exemptions,    §^ 

1090,  p.  617. 
Trustee  not  to  refuse  to  set  apart  until  costs  are  paid,  §  1091,  p.  616. 
Bankrupt  not   entitled  to  reimbursement  for  care   of  exempt  property 

pending   setting   ofif,    §    1092,   p.    617;    §    2025,   p.    1258. 
Rent,  storage  and  other  charges  pending  setting  oflf,  §  1093,  p.  617. 
No  review  unless  trustee  has  set  apart  or  refused  to  set  apart,  §   1111, 

p.   634. 
Trustee    entitled   to   possession   long   enough   to    set   apart   exemptions, 

§   1027,  p.   377. 
Bankruptcy   court  may  set  apart   exemptions,   §   1032,   p.   578. 
Time  and  manner  of,  fixed  by  Bankruptcy  Act  itself,  §  1048,  p.   595. 
Governed  by  Bankruptcy  Act  itself,  §  1072,  p.  610. 
No  demand  to  set  apart  requisite,  §  1072^,  p.  611. 
Trustee  to, set  apart,  §  1073,  p.  611. 

Must  set  aside  "Soon  as  practicable"  and  within  20  days,  §  1074,  p.  611. 
Trustee's  report  to  be  itemized,  with  estimated  value,  §  1075,  p.  612. 
Statutory  method  of  bankruptcy  act  to  be  followed — no  different  man- 
ner  proper,   §   1076,   p.    612. 
Not  to  set  aside  property  not  exempt  by  State  law,  §   1077,  p.   612. 
Not  to  set  aside  property  not  claimed  as  exempt,  §  1078,  p.  612. 
Not  bound  to  set  aside   claimed  property  if  bankrupt  not  entitled   to 

exemptions,    §    1079,    p.   612. 
Appraisal  not   binding,   §   1080,   p.   613. 
Who    may    except    to    trustee's    report    of    exempted    property,    §    1081, 

p.   613. 
Trustee's   duty   to   set   apart   exempted  property,   §   919,   p.   522. 


GENERAL  IXDEX.  2149 

EXEMPTIONS— Continued. 
Trustee's  report 
Exceptions  to 

Review  of,  need  not  be   in   trustee's   name  where   creditor  ex- 
cepts, §  2828,  p.   1655. 
Staying    discharge,    to    perinii    creditor    to    perfect    rights    against    exempt 

property,  §  2446,  p.   1478. 
Subjecting  exempt  property  while  in  trustee's  hands,  by  equitable  action  in 

State  Court,  §  1106,  p.  632. 
Taxes  on  exempt  property  to  be  paid  by  trustee,  §  2146,  p.  1323. 
Title  to  exempt  property  does  not  pass,  §   1024,  p.  572. 
Transfers   or   liens    where   property   claimable   as    exempt   but   not   claimed, 

§   1293,  p.    760. 
No    withholding    of    discharge    if    exemptions    good    against    levy,    §    1105, 

p.   632. 
Withholding   discharge   to  permit  levy   on  exempt  property,   §   1102,  p.   627; 
§   1104,   p.   628;   §   2446,   p.   1478. 

EXHAUSTING  SECURITIES 

Tax  not  such  "secured"  claim  as  requires.  §  2163,  p.  1335. 

EXPECTANCIES  AND  POSSIBILITIES  OF  ACQUIRING  TITLE 

Do  not  pass,  §  970,  p.  543. 

EXPEDITIOUSNESS 

Duty  of  trustee  to  close  estate  expeditiously,   §  908,  p.   519. 

EXPENSES 

Of   administration,    see    "Costs    and    Expenses    of    Administration." 
Indemnity  for,  in  instituting  bankruptcy  proceedings,  §  286,  p.  206;   §  2130, 

p.   1310. 
On  Sale  free  from  liens,  §  1989,  p.  1232. 

See,   also,   "Costs." 

Each  fund  to  bear  its  own,  §  1990,  p.  1233. 

First  deducted,  and  liens  paid  out  of  remainder,  §  1992,  p.  1233. 

Of  Preservation,   §   1989,  p.   1232. 

Proportionate   part   of,  not  to  be   charged  against   each   lien,   §   1991,   p. 
1233. 

Of  Sale,   §   1989,  p.   1232. 

EXTENSION 
Of  time 

.Application  for,  too  late  after  expiration  of  time,  §  2987,  p.  1734. 

"EXTRA  COMPENSATION" 

For     conducting     business,     see     "Business — Conducting     of."       Also,     see 
"Trustee  in  Bankruptcy — Fees  of." 

EXTRADITION,  §  374,  p.  247. 

Not   to   be   based   on   warrant  issued   after   bankrupt's   departure,    §   375,   p. 

247. 
Not  available  merelj-  to  procure   return   for  examination,   §  376,  p.  247. 

FACTOR'S  LIEN,  §  1885,  p.  1180  n. 


2150  GENERAIy  INDEX. 

FACTS 

To  be  pleaded,  §  3  767,  p.  1075. 

"FAIR  VALUATION" 

Where    Bankrupt   a   "going    concern,"    not   "scrap"    nor   "wrecker's"   value, 

§   1352,   p.   790. 
Of   Choses   in   Action   and   of   intangible   property,   §   1353,   p.   790.- 
In  Determining  Insolvency,  §  1349,  p.  789. 
Market  value  as,   §    1351,   p.   789. 
Sacrifice  sale  not,  §  1350,  p.  789. 

"FALSE  CLAIM  OR  DEMAND" 

Presentation   of   as   bar   to   discharge,    §   2551,    p.    1538. 

•'FALSE  OATH" 

As   bar   to   discharge,   see   "Discharge — Opposition   to — Grounds    of — 'False 

Oath.'  " 
As  Crime. 

Essential  elements  in  proof  of,  §  2327,  p.  1413. 

Others  than  bankrupt  indictable  for,  §  2325,  p.  1412. 

Indictment  for,   to  aver  falsity  and   scienter,   §   2322,  p.   1412. 

Indictment  to  be  specific  and  to  contain  all  essential  elements,  §  2321, 
p.    1411. 

Schedules  of  bankrupt  not  to  be  used  before  grand  jury,  §  2323,  p.  1412. 

Immunity  from  use  of  bankrupt's  testimony  in  proof  of,  §  2324,  p.  1412. 

FALSE  PRETENSES 

Dischargeability   of  liabilities  for  obtaining  property  by 

Liabilities   for   not  discharged,   §  274G,   p.   161G. 

Representations   to  Mercantile  agencies  sufficient,  §  2752,  p.   1619. 

Reckless  representations  sufficient,  §  2753,  p.   1619. 

Not  necessarily  in  writing,  §  2751,  p.   1619. 

FALSE  REPRESENTATIONS 

See   "False    Pretenses." 

"FALSE  STATEMENT  IN  WRITING" 

Obtaining  prpperty  on  credit  by,  as  bar  to  discharge,  see  "Discharge — 
Opposition  to — Grounds  of — False  Statement  in  WHting  to  Obtain 
Property    on    Credit." 

FARMERS 

E.xception  of  as  afifecting  "Subject  of  Bankruptcies,"  §  30,  p.  51. 

Excluded  from  operation  of  involuntary  bankruptcy,  §  46,  p.  59. 

Exempt    from    involuntary    Bankruptcy    though    incidentally    a    storekeeper 

or  attorney  at   Law,   etc.,   §   49,   p.   61. 
See    "Involuntary    Bankruptcy — Who    I\lay    Be    Thrown    into." 
See  "Involuntary  Petition — Allegations  and  Form  of." 
Though  nonbankrupt  partner  be  Farmer,  yet  estate  brought  in,  §  65,  p.  72. 

FARMING  AND  TILLAGE   OF   SOIL 

Distinguish .,(1,    §    50,   p.    62. 

FEDERAL  LAW 

Competency  of  Witnesses  governed  by,  §  1567,  p.  941. 


GENERAL,  INDEX.  2151 

FEDERAL   QUESTION 

Certificate  of  State  Supreme  Court,  cannot  import  "Federal  Question"  into 
a  record  where  otherwise  no  Federal  question,  §  3026,  p.  1750. 

Reviewable  by  Supreme  Court,  §  3026,  p.  1749. 

Trustee's  Suit  in  State  Court  to  recover  assets  transferred  contrary  to 
bankruptcy  act,  presents,  §  3026,  p.  1749. 

What  is,   §   3026,  p.   1749. 

FEES 

See  "Attorneys'    Fees    in    Bankruptcy    Proceedings." 

See  "Marshal — Fees  of." 

See  "Receiver — Fees  of." 

See  "Referee — Fees  of." 

See  "Trustee — Fees  of." 

See  "Witness   Fees  and  Mileage." 

FICTITIOUS  TRANSACTIONS 

Not  preferences,  §  1279,  p.  756. 

FIDUCIARY  CAPACITY 

Conversions   by  agents   excluded,   §   2785,   p.    1629. 

Fraud,    embezzlement   and    defalcation,   while   acting   in,   not   discharged,    § 

2783,    p.    1628. 
Fraudulent  Transfers  excluded,   §  2785,  p.   1629. 

Must  exist  independently  of  transaction  in  which  debt  arose,  §  2786,  p.  1631. 
Refers   to   express   trusts,   §   2785,   p.    1629. 

•'FIDUCIARY  DEBT" 

Priority  of,  as  guardian,  §  2205,  p.   1357. 

FILES  IN  BANKRUPTCY,  §  560,  p.  339. 

FILING 

Of  certificate  of  real  estate  with  recorder,   §  920,  p.  523. 
Of  Claim  with  Trustee 

Sufiicicnt  to  take  out  of  year's  limitation,  §  729,  p.  437;  §  921,  p.  522. 

Trustee  to  Deliver  to  Referee,  claims  filed  with  him,  §  921,  p.  522. 
Of  Reports  by  trustee,  §  917,  p.  521. 

Of  Involuntary  petition  to  be  in  duplicate,  §  283,  p.  205. 
Waiver   of,  by  appearance,   §  284,  p.   205. 

MLING  CLAIMS 

Trustee  to  Deliver  to  Referee  claims  filed  with  him,  §  921,  p.  522. 
Year's  limitation  for,  see  "Year's  Limitation  for   Filing  Claims." 

FILING  OF  PETITION 

A  "caveat,  attachment  and  injunction,"   §  1215,  p.   718. 

Is  "Commencement"  of  Proceedings,  §  306,  p.  219. 

Within   four   months    from   act    of   bankruptcy   requisite    to   jurisdiction,    § 

182,  p.  152. 
Date  of 

Determines  how  many  petitioning  creditors  must  join,  §  202,  p.   165. 

Determines   whether   within   four   months,   §   188,   p.    154. 


2152  GENERAL  INDEX. 

FINAL  ACCOUNT 

Estate   Closed  by  Order  approving,  §  2298,  p.   1-iOl. 
Notice  of  filing  of,  §  565,  p.  3-43;  §  2296,  p.  1401. 
Trustee's  Duty  to  file,  §  2297,  p.  1401. 

FINAL  ORDER 

Order  not  Appealable  unless  it  be  a,  §  2890,  p.  1697;  §  2922,  p.  1712. 

FINAL  SETTLEMENT 

When   partnership   finally   settled,   §   58,   p.   65. 

FINANCIAL  CONDITION 

Intent   to    conceal   by    destroying  or    failing  to    keep    books    of    account,    § 
2545,    p.    1532. 

FINDINGS  OF  ARBITRATORS 

Have   force   of  Verdict,   §   925,  p.   523. 

FINDINGS  OF  FACT 

Essential  to  show  issues,  same  on  appeal  as  below,  §  3007,  p.  1740. 
Exceptions  to,  requisite,  else  conclusive  on  review,  §  2843,  p.   1661. 
Requisite  on   Review,  §  2955,  p.  1724. 
Whether  requisite  on  appeal,  §  2969,  p.   1729. 
On  review  of  referee's  order,  §   2852,   p.   1664. 
Referee  to  certify,  on  review,  §  2857,  p.  1668. 

Duty  of  Referee  to  make  up  findings  for  review,  §  511,  p.  322;  §  2857,  p. 
1668. 

FIRE  INSURANCE 

Destruction  of  property  before  appointment  of  trustee,  §  1122,  p.  641. 

FIRST  MEETING 

See  "Meetings   of   Creditors." 

"FISHING   EXPEDITION" 

Specifications  in  opposition  to  discharge  not  to  be  used  as,  §  2602,  p.  1555. 
"Five  days  before  sale,"   §  141,  p.   123. 

FIXTURES 

Trustee  may  urge  articles  not  to  be,  §  1205,  p.  698. 

W'hen  pass  to   trustee,   §   1000,   p.   556;   §   1152,  p.   680. 

Trustee  takes  the  property  under  bankrupt's  rights  as  to,  §  1152,  p.  680. 

•'FORCIBLE  DETAINER"  SUITS 

By  landlord  not  maintainable  where  bankruptcy  court  in  possession,  §  1799, 
I).    1098. 

FORCIBLE  REMOVAL  OF  GOODS   BY  CREDITOR  Not  a  "Removal "  by 
bankru])t  "with  Intent  to  Defraud,"  §  109,  p.  107. 

FORECLOSURE  AND  OTHER  SUITS  ENFORCING  BUT  NOT  CREAT- 
ING LIENS 

Abatement   of,    none    where    started    before    bankruptcy    seizure,    §    1586,    p. 

959. 
Custody  of  State  court  preserved  in   part  and  in  part  superseded,  §   1600, 

p.  966. 


GENERAL  INDEX.  2153 

FORECLOSURE  AND  OTHER  SUITS  ENFORCING  BUT  NOT  CREAT- 
ING LIENS— Continued. 

Incidental  Prayer  appropriate  to  Insolvency  proceedings,  §  158(3,  p.  961. 
Insolvency    proceedings,    with    incidental    prayer    for    foreclosure,    §     1586, 

p.    961. 
Restrained  until  trustee  can  intervene,  §   1907,  p.   1191. 
Substitution  of  trustee,  §  1646,  p.  1012. 

Where   bankruptcy  court  already  has   custody,  §   1806,  p.   1101. 
Where  started  after  adjudication  of  bankruptcy,   §   1586,   p.   961. 

^FORECLOSURE 

Bankruptc\'  court  has  no  power  to  "foreclose,"  §   1972,  p.   1227. 
Where  foreclosure  necessary  to  bar  rights,  parties  relegated  to  State  court, 
§  1972,  p.   1227. 

FOREIGN   COUNTRIES 

Jurisdiction  of  bankruptcy  court  to  order  execution  of  papers  by  bankrupt, 

§    1835,    p     1128. 
Property    »n,    requires    assignment    by    bankrupt    to    pass    title    to    trustee, 

§    1114,   p.   636. 

FOREIGNER 

Lack  of  acquaintance  of  English  language  to  be  taken  into  account,  §  2535, 
p.    1526   n. 

FORFEITING  EXEMPTIONS 

By  fraudulent  Concealments  or  removals,  §  1098,  p.  623. 
Whether  concealing  other  assets  will   be  a   presumed  selection   as   exempt, 
warranting  refusal  of  exemptions  claimed  in  schedules,  §  1099,  p.  623. 

FORFEITURE 
Of  Leasehold 

See    "Leasehold — Forfeiture    of." 
Refusal  of  discharge  is  not  a,  §  2465,  p.  1489. 

FORMS 

Account  of  Trustee,   p.   1912. 

Adjudication   by   Referee   on   Answer  Admitting  Petition,   p.   1923. 

Adjudication  in   Involuntary   Bankruptcy  by   Referee,   p.   1923. 

Adjudication  of  Bankruptcy,  p.  1890. 

Adjudication  That  Debtor  is  not  Bankrupt,  p.  1889. 

Affidavit  of  Lost  Bill,  or  Note,  p.  1904. 

Answer    of    Bankrupt's    Wife    Consenting    to    Sale    Free    of    Her    Inchoate 

Dower,    p.    1950. 
Answer   of    Lienholder   to   Trustee's    Petition    to    ^larshal    Liens    and    Sell, 

p.    1950. 
Application   for   Appointment   of   Receiver   after   Adjudication,   p.    1940. 
Application  for  Appointment  of  Receiver  before  Adjudication,  p.   1930. 
Application   for   Confirmation   of   Composition,   p.    1919. 
Appointment,  Oath,  and  Report  of  Appraisers,  p.  1890. 
Appointment  of  Trustee  by  Creditors,  p.   1896. 
Appointment  of  Trustee  by  Referee,  p.   1897. 
Bankrupt'^  Petition  for  Discharge,  p.   1916. 
Bond  of  Petitioning   Creditor,   p.   1888. 
Bond  of  Referee,  p.   1892. 
Bond  of  Trustee,  p.  1898. 


2154  ge;ne;ral  index. 

FORMS— Continued. 

Bond    to    Marshal,    p.    1888. 

Certificate  by  Referee  to  Judge,  p.   1916. 

Certificate    of    Final    Meeting   and    Orders    Closing    Estate    [no    assets],    p. 
1938. 

Certificate  of  First  Meeting  and  Orders  Made  Thereat,  p.  1928. 

Certificate    of    First    Meeting    and    Orders    Made    Thereat    [no    creditors], 
p.    1927. 

Certificate   of   Notice  to   Creditors,   p.   1927. 

Certificate  of  Referee  on   Proposed   Composition,   p.   1938. 

Certificate  of  Referee  to  Record,  p.   1939. 

Creditor's  Petition,  p.  1884. 

Debtor's  Petition,  p.  1869. 

Denial   of  Bankruptcy,   p.   1886. 

Discharge   of   Bankrupt,   p.    1918. 

Examination   of  Bankrupt   or  Witness,   p.   1899. 

Failure  of  Trustee  to  File  Report  Order,  p.  1937. 

General  Letter  of  Attorney  in  Fact  when  Creditor  is  not   Represented  by 
Attorney  at   Law,   p.   1894. 

List  of  Claims  and  Dividends  to  be  Recorded  by  Referee  and  by  him  de- 
livered to   Trustee,   p.   1906. 

List  of  debts  Proved  at  First  Meeting,  p.  1894. 

Notice  of  Dividend,  p.   1907. 

Notice  of  First   Meetings  of  Creditors,  p.   1893. 

Notice   of   Order  to   Show   Cause   on   Trustee's   Petition   to   Marshal   Liens 
and  Sell,  p.   1933. 

Notice   of   Petition    for   Removal   of  Trustee,   p.   1914. 

Notice  to  Trustee  of  his  Appointment,  p.  1897. 

Oath  to  Final  Account  of  Trustee,  p.  1913. 

Objections  to  Claim,  p.  1946. 

Order  Allowing  Account  and   Discharging  Trustee,  p.   1913. 

Order  Allowing  Appraisers'  Fees,  p.  1931. 

Order   Allowing   General   Claims,   p.    1929. 

Order  Allowing  Priority  Claim,  p.  1929. 
'    Order  Allowing  Withdrawal  of   Notes,   p.   1930. 

Order  Appointing  Appraisers,   p.   1931. 

Order   Appointing   Final   Meeting,   p.    1937. 

Order   Appointing   First    Meeting,    p.    1927. 

Order  Appointing  Hearing  upon   Petition   to   Sell,  p.   1932. 

Order    Appointing    Receiver    [Voluntary    Bankruptcy]     [No    order    to    con- 
tinue business],  p.   1925. 

Order  Apointing  Receiver    [Voluntary  Bankruptcy]  with  Order  to  Continue 
Business,  p.  1926. 

Order  Approving  Receiver's   [or  Trustee's]    Bond,  p.  1930. 

Order  Approving  Report  of  Exemptions,  p.   1937. 

Order  Approving  Trustee's  Bond,  p.  1898. 

Order   Confirming  Composition,  p.   1919. 

Order   Confirming   Sale   and    Directing   Distribution,   p.    1935. 

Order    Determining    Value    of    Securities    for    Purpose    of    Participation    in 
Meetings,  p.  1930. 

Order  Expunging  Claim,  p.  1906. 

Order  for   Bankrupt  to   Prepare   Schedules,  p.   1927. 

Order  for   Choice    of   New   Trustee,   p.    1915. 

Order  for   Distribution   on   Composition,   p.   1920. 


GENERAL  INDEX.  2155 

FORMS— Continued. 

Order    for    Examination    of    Bankrupt,    p.    1899. 

Order   for    Examination    of    Witness,    p.    1931. 

Order  for  Jury  Trial,  p.  1886. 

Order   for   Removal   of   Trustee,   p.    1915. 

Order   ^larshaling   Liens    and   for    Sale    Free   and   Clear   of    Incumbrances, 

p.   1933. 
Order  of  Adjournment,  p.   1931. 

Order  of  Adjudication  and  Appointment  of  First  jNIeeting,  p,  1923. 
Order  of  Confirmation  of  Sale   [general],  p.  1935. 
Order  of  Reference,  p.   1891. 

Order  of  Reference  in  Judge's  Absence,  p.  1892. 

Order  of  Subrogation  on  Assignment  of  Claim  Already  Proved,  p.  1929. 
Order   of   Substitution   of  Trustee   for    Receiver,    p.    1932. 
Order  Reducing  Claim,  p.  1905. 

Order  Refusing  Application  for  the  Appointment  of  a  Receiver,  p.  1926. 
Order  that  no  Trustee  be  Appointed,  p.  1899. 

Order  to  Show  Cause  on  Trustee's  Petition  for  Summary  Order,  p.  1932. 
Order  to  Show  Cause  upon  Creditors'  Petition,  p.  1885. 
Partnersh"p   Petition,   p.    1882. 

Part  of  Order  of  Declaration  of  a  Dividend,  p.  1937. 
Petition  and  Order  for  Private   Sale,  p.   1909. 

Petition  and  Order  for  Redemption  of  Property  from  Lien,  p.  1908. 
Petition  and  Order  for  Sale,  by  Auction  of  Real  Estate,  p.  1907. 
Petition  and  Order  for  Sale  of  Perishable   Property,  p.  1910. 
Petition  and  Order  for  Sale  Subject  to  Lien,  p.  1908. 
Petition  for  Leave  to  Abandon,  p.   1951. 
Petition  for  Meeting  to  Consider  Composition,  p.  1918. 
Petition  for  Reconsideration  and  Rejection  of  Claim,  p.  1947. 
Petition   for   Removal  of  Trustee,  p.   1914. 
Petition  for  Summary  Order,  p.  1942. 
Petition    of   Assignee    [Receiver]    for    i\llowance    of   Lien   upon   Assets,   p. 

1944. 
Petition  for  Order  of  Surrender   [or  Reclamation],  p.  19*3. 
Petition  for  Review  of  Referee's  Order,  p.  1947. 
Petition  to  Compromise  Controversy,  p.  1951. 

Petitions  to  Referee  for  Restraining  Order  or  Stay  of  Suit,  p.  1941. 
Proof  of  Debt  by  Agent  or  Attorney,   p.   1903. 
Proof  of  Debt  by  Partnership,  p.  1902. 
Proof  of  Debt  Due  Corporation,  p.  1902. 
Proof  of  Secured  Debt,  p.  1901.  • 

Proof  of  Secured  Debt  by  Agent,  p.  1904. 
Proof  of  Unsecured  Debt,  p.  1900. 
Referee's  Oath  of  Office,  p.  1892. 
Referee's    Order    Appointing    Receiver    [Involuntary    Bankruptcy]    and    for 

Warrant  of  Seizure,  p.  1924. 
Referee's  Order  Appointing  Receiver    [in  Involuntary  Bankruptcy  without 

Warrant  of  Seizure],  p.  1925. 
Schedules 

A   (1),  p.   1870. 
A    (2\  p.  1871. 
A     (3),   p.    1872. 
A    (4),  p.  1873. 


2156  GENERAL  IXDEX. 

FORMS— Continued. 

A    (5).    p.    1874. 

B  (1),  p.  1875. 

B    (2),  p.   1876. 

B   (3),  p.  1877. 

B    (4),   p.    1878. 

B   (5),  p.  1879. 

B    (6),   p.   1880. 

Summary  of  Debts  and  Assets,  p.  1881. 
Special  Letters  of  Attorney  in  Fact,  p.  1895. 
Special  Warrant  to  Marshal,  p.  1887. 
Specifications  of  Grounds  of  Opposition  to  Bankrupt's  Discharge,  pp.  1917, 

1948. 
Subpoena  to  Alleged  Bankrupt,  p.  1885. 
Summons  to  Witness,  p.  1900. 
Trustee's   Bill  of  Sale,  p.   1936. 
Trustee's  Petition  to  IMarshal   Liens   and  for   Sale   of  Property  Free  from 

Liens,   etc.,  p.   1945. 
Trustee's   Report  of  Exempted   Property,  p.   1911. 
Trustee's  Return  of  No  Assets,  p.  1911. 

Of  involuntary  petition,  see  "Official  Forms  and   Orders  in   Bankruptcy." 
Petition  for  confirmation  of  composition,  §  2370,  p.   1436. 
Of  verification 

Of   specifications    in    opposition    to    discharge,    §    2591,   p.    1551. 

FORM   OF  INVOLUNTARY  PETITION 

See   "Involuntary   Petition." 

'FOUR  MONTHS" 

Act  of  bankruptcy  to  be  alleged  to  be  within,  §  246,  p.  189. 

Attachments   obtained  before,   not   abated,   §   1588,  p.   962. 

Assignment  created  before,  "not  abated,  §  1594,  p.  964;  §  1607,  p.  977. 

Agreements  for  liens  not   eftective  until  within,   §   1370,  p.   795. 

How   Computed,   §   1375,  p.   803;   §   189,  p.   154. 

"Continuing  Concealments"  bringing  act  of  bankruptcy  within,  §  183,  p. 
152. 

Computation  of  time  of  four  months  period,  §  189,  p.  154;  §  1375,  p.  803; 
§  1454,  p.  863. 

Creditor's  bill  instituted  before,  not  abated,   §   1593,  p.   963. 

Date  of  Levy  controls,  where  preference  by  legal  proceedings  is  act  charged, 
§   184,  p.   152. 

Date  from  recording  where  recording  is  requisite  or  from  notorious  posses- 
sion where  not  requisite,  as  act  of  bankruptcj^  §  185,  p.  152. 

Date  of  filing  petition,  not  issuance  nor  service  of  subpoena  controls,  § 
188,    p.    154. 

Either  record,  or  notice,  or  notorious  possession  suffices  as  to  act  of  bank- 
ruptcy,   §    186,    p.    153. 

Enforcement  within  four  months  of  liens  obtained  before,  not  within  statute, 
§  184,  p.   152. 

From  commission  of  act  of  bankruptcy  for  filing  of  petition,  §  182,  p.  152. 

Fraudulent  Transfer,  etc.,  as  act  of  bankruptc}-  must  be  within,  §  115, 
p.   109. 

Fraudulent  transfer,  to  be  voidable  under  §  67  (e),  must  have  been  within, 
§   1499,  p.  895. 


GENERAI,  INDEX.  2157 

"FOUR  MONTHS"— Continued. 

Fraudulent  transfer  suit  instituted  within,  I)ut  in  aid  of  levy  made  before 

four  months,  not  abated,  §   1592,  p.   963. 
Fraudulent  transfer   suit  instituted   before,   not  abated,   §   1591,  p.   963. 
General   examination   of  bankrupt  and  witnesses   not   confined   to   facts    oc- 

curing  within,  §  1547,  p.  925. 
General    assignment    within    four    months    void,    if    adjudication    ultimately 

occurs,    §    1608,    p.    978. 
Lien  by  legal  proceedings  nullified  only  if  obtained  within,  §  1451,  p.  860. 
Lien  by  legal  proceedings  obtained  after  filing  of  petition,  not  nullified  by 

§  67  (f);  §  1452,  p.  861. 
Lien   given   within,   nevertheless   valid,   if   on   "present   consideration,"   duly 

"recorded,"  etc.,   §   1502,  p.  898. 
Lien   must   have   been   obtained   within,    to   effect    third   act    of   bankruptcy, 

§   143,  p.   125. 
Levy  within,  on  judgment  rendered  before  annulled,  §  1458,  p.  865. 
Only  such  notorious  possession  requisite  as  property  susceptible  of,  §  187, 

p.    154. 
Partnersh-p   Dissolution  suits,  instituted  before,  not  abated,   §   1590,  p.   963. 
Preferences   obtained  before,   not  voidable,   §   1368,   p.   794. 
Receiversh'p  created. before,  not  abated,  §  1594,  p.  964. 
Suit  started  before,  but  lien  obtained  wnthin,  lien   falls,   §   1457,   p.   865. 
Transfer,  removal   or  concealment  within,  as   bar   to  discharge,   §   2553,   p. 

1539;  §  2554,  p.  1539;  §  2555,  p.  1539. 

FORUM 

Bankruptcy  court  is,  for  tax  questions,   §   2157,   p.   1332. 

Determined   by   actual    or    constructive   possession    of   res,    §    1796,    p.    1088. 

FRANCHISE  TAX 

Whether  entitled  to  priority  in  bankruptcy,  §  2156,  p.   1331. 

FRAUD 

Actual,    of   bankrupt,    requisite    to    avoid    transfer    under    §    67    (e),    §    1498, 

p.   895. 
Allowability   of  claims   tainted  with,   §  803,  p.   469. 
None  implied  in  fifth  act  of  bankruptcj^ — "Written  Admissions  of  Inability 

to   Pay  Debts,"  etc.,  §  162,  p.   138. 
Right  to   rescind   for,  unafifected  by  bankruptcy,   §   1169,  p.   687. 
What  liabilities  for  are  discharged,  and  what  not,  §  2747,  p.  1616. 
"While  officer  or  in  Fiduciary  Capacity" 

Not  Discharged,   §  2783,  p.   1628;  §  0735,  p.   1629. 

floral  Turpitude  or   Intentional  Wrong  implied,   §  2788,  p.   1632. 

Original   Transaction,   fraud   must  have"  existed  in,   §   2789,  p.   1632. 

FRAUDULENT  CONCEALMENTS  OR  REMOVALS 

Forfeiting   exemptions   b}',   §   1098,   p.    623. 

FRAUDULENT  INTENT 

Distinguished  from  Preferential  Intent,  §  113,  p.  108;  §  1221,  p.  723;  §  1305, 

p.  ,766. 
Keeping  books  in  same  defective  manner  for  long  period  tends  to  negative, 

§   2548,   p:    1534. 


2158  GENERAI,  INDEX. 

FRAUDULENT  INTENT— Continued. 

Xot   necessarily   negatived   because   property   claimable   as    exempt,    §    2593, 

p.  1505;  §  2539,  p.  1528;  §  2547,  p.  1534. 
Not   necessarily   negatived  by   fact   that   property   not   recoverable,    §    2537, 

p.   1527. 
Not  necessarily  negatived  by  fact  that  value  unascertained,  §  2538,  p.   1527. 

FRAUDULENT  JUDGMENTS  AND  COURT  ORDERS 

Provided  against  in  First  Englisn  Bankruptcy  Act,  34  Henry  VIII,  Introd. 

(g),  7. 
May  be  attacked  by  trustee,  §  1224,  p.  725. 

FRAUDULENT  TRANSFEREE 

Allowance   of  claim   of  on   setting   aside   constructively   fraudulent   transfer, 

§  173414,  p.  1067;  §  775,  p.  459. 
Appraisal  in  bankruptcy  inadmissible  against,  §  1748,  p.   1071. 
Bankrupt's  Schedules  inadmissible  against,   §  1747,  p.   1071. 
Declarations  of  transferrer  after  transfer,  §  1749,  p.  1071;  §  2667,  p.  1578. 
General   Examination  of   Bankrupt  inadmissible  against,   §   1747,  p.   1071: 
Re-imbursement    of,    on    setting    aside    constructively    fraudulent    transfer, 

§   1734^,  p.   1067. 
Subrogation  of,  where  constructively  fraudulent  transfer  set  aside,  §  1734J/2, 

p.   1067. 

FRAUDULENTLY   TRANSFERRED  PROPERTY 

On  recovery  of,  whether  exemptions  allowed  therefrom,  §  109G,  p.  622. 
Passes  to  trustee,   §  962,  p.   538. 

FRAUDULENT  TRANSFER 

Allowability  of  claims  of  fraudulent  transferee  after  transfer  set  aside, 
§  775,  p.  459;  §   1734^,  p.   1067. 

Appraisal  in  bankruptcy  inadmissible  against  transferee,   §  1748,  p.   1071. 

Bankrupt's  schedules  inadmissible  against  transferee,  §  1747,  p.  1071. 

Bankrupt  and  intermediate  transferee  not  necessary  parties  in  suit  to  set 
aside,   §   1741,  p.   1070. 

Before  four  months  of  bankruptcy,  §  1217,  p.  722. 

Before  passage  of  bankruptcy  act,  §  1218,  p.  722. 

Both  bankrupt  and  transferee  proper  parties  in  suit  to  set  aside,  §  1741, 
p.  1070. 

Burden  of  proof  of  is  on  trustee,  §  1746,  p.  1071. 

Bona  fide  holder  for  value  prior  to  adjudication  protected,  §  1227,  p.  726. 

Complicity  of  Transferee  to  be   shown,   §  1219,  p.  723. 

Complicity  of  transferee  need  not  be  shown,  under  §  67   (e),  §  1219,  p.  723. 

Charging  same  transaction  in  alternative,  fraudulent  or  preferential,  not 
inconsistent,  §   1739,  p.   1069. 

Declarations  of  transferrer  after  transfer  whether  admissible  against  trans- 
feree, §  1749,  p.   1071. 

To  be  Distinguished  from  Preferential,  §  113,  p.  108;  §  1221,  p.  723;  §  1305, 
p.  766. 

Equity  of  redemption  counted  in  determining  insolvency  if  fraudulent  con- 
veyance be  by  way  of  security,  §  1345,  p.  788. 

Either  property  itself  or  its  value  recoverable,  §   1226,  p.  726. 

Fraudulent  court  orders  or  judgments,  §  1224,  p.  725. 

Fraudulent  intent  to  be  alleged  and  proved,  §  1744,  p.  1071. 

Fraud,  a  question  of  fact,  §   1745,  p.  1071. 


GENERAL  INDEX.  2159 

FRAUDULENT  TRANSFER— Continued. 

General   examination   of   bankrupt    inadmissible   against   transferee,    §    1747, 

p.    1071. 
Of    Insurance   policies,    §    1743,   p.    1070. 
Lien  actually  and  not  merely  constructively  fraudulent  as  to  part,  void  as 

to  all,  §   1220,  p.  723. 
Mortgages  withheld  from  record,  §   1222,  p.  723. 
May  be  set  aside  b}-  trustee  and  propertj^  recovered,  §  1216,  p.  719. 
JMortgages  to  cover  future  advances,  good  though  made  within  four  months, 

§   1223,  p.  725. 
Not  to  be  confused  with  preferential  transfer,  §  113,  p.   108;   §  1221,  p.  723; 

§  1305,  p.  766. 
Xot  to  be  counted  as  assets  in  determining  insolvency,  §  1344,  p.  787. 
Xot  debts   in   "fiduciarj^   capacity,"   nor  excepted  from   discharge,   §   2785,   p. 

1629. 
Provision  against  in  First  English  Bankruptcj^  Act,  34  Henry  VIH,  Introd. 

(g),  p.  7. 
Punishment  of  Accomplices  under  First  English  Bankruptcy  Act,  34  Henry 

VIH,   Introd.    (g),   p.    8. 
Several  acts  committed  with  common  design,  joinable,  §   1742,  p.   1070. 
Suits  to  set  aside 

Instituted  before  four   months,   not   superseded   by  bankruptcy,   §   1591, 

p.    96,3. 
Instituted   within    four    months,    but   in    aid    of    levy   made   before    four 

months,   not  annulled   by  bankruptcy,   §   1592,  p.   963. 
May  be  brought  in  bankruptcy  court,  §  1688,  p.  1039;  §  1690,  p.  1041. 
Tender  of  actual  consideration  paid  not  necessary,  §  1737,  p.  1069. 
Suits   in   equity  to   set  aside,   appealable,    §   2921,   p.    1712. 
Voidable  under  special  state  statutes,  when  available  in  bankruptcy,  §  12G9, 

p.  748. 
Whether,  when  voidable  only  as  to  some  creditors,  nevertheless  avoided  as 

to  all,  §  1738,  p.  1069. 
As   Acts   of   Bankruptcy,   see  ."Acts   of   Bankruptcy- — Fraudulent   Transfers, 
Removals  and  Concealments." 

FRAUDULENT  TRANSFER  SUITS 

See  "Fraudulent  Transfers;"  "Fraudulently  Transferred  Propertjs" 
"Pleadings  and  Practice — In  Plenary  Actions  against  Adverse  Claim- 
ants, to  Set  Aside  Fraudulent  Transfers." 

"FRAUDULENT  TRANSFERS  WITHIN  FOUR  MONTHS"  under  §  67  (e) 
Xot   basis    for   superseding   of   custody'   of   assignees   and   receivers,    §    1603, 

p.  971. 
Third  branch   of   trustee's   title   and   rights   conferred   by   Bankruptcy   Act, 
§   1493,  p.  890. 

Prima    facie    case    without    proof   of    transferee's    participation,    §    1494, 

p.  891. 
Transferee's    good    faith    and    valuable    consideration,    defense,    §    1495, 

p.   893. 
What  constitutes   "good  faith,"   §   1496,   p.   893. 
Section    67    (e)    not   applicable   to   mere    preferential    transfers,    §    1497, 

p.  S95. 
Trustee  must  show  bankrupt's  actual  fraud,  §  1498,  p.  895. 
Transfer  must  have  been  within  four  months,  §  1499,  p.  895. 


2160  GENERAL  INDEX. 

"FRAUD    UPON    THE   BANKRUPTCY    ACT" 

Liens  not  protected  if  given  in,  §   1505,  p.   900. 

Probable  basis  of  superseding  custody  of  assignees  and  receivers,  §  1603, 
p.   974. 

FUNCTIONS 

Of    receivers,    see    "Receiver    in    Bankruptcy — Powers    and    Functions    of." 
Of  Referee  in  Bankruptcy,  see  "Referee  in  Bankruptcy." 

FUTURE   ADVANCES 

Chattel  mortgages,   etc.,  to   cover,   good,   though   made   within   four  months,. 

§   1223,   p.   725. 
Present  transfers   to  secure,  not  preferences,  §   1319,  p.  774. 

GARNISHEE 

Referee's  power  to  order  surrender  of  property  in  hands  of,  §  542,  p.  332. 
Trustee   to   respond   where   bankrupt   garnishee,   §   164G,   p.    1013;    §   1787,   p. 

1082,   §   2227,  p.   1363. 
Whether    "Adverse    Claimant"    where    garnishment    within    four    months,    § 

1663,  p.   1030. 

GARNISHMENT 

Dividends  not  to  be  subjected  by,  §  2224,  p.   1363. 

"GENERAL  ASSIGNMENT" 

See  "Assignment  for  Benefit  of  Creditors." 

GENERAL   EXAMINATION    OF   BANKRUPT   AND  WITNESSES 

As  provided  for  by  the  first  English  Bankruptcy  Act,  34  Henry  VIII, 
Introd.   (g),  p.  6. 

Analogous  to  examination  of  insolvent  debtors  elsewhere,  §  1526,  p.  913. 

At  whose  instance  examination  to  be  had,  §  1529,  p.  914. 

Attendance  of  witnesses  residing  out  of  state  or  further  than  hundred  miles, 
not  enforceable,  §  1569,  p.  942. 

Application   for   Examination — notice  »iot   required,   §   1533,   p.    916.    . 

Attorney's  fees  to  Petitioning  Creditors  not  alloAved  for,  after  appoint- 
ment of  trustee,  §  2072,  p.   1285. 

Attorney's  fees  allowable  to  bankrupt  for  attendance  at  bankrupt's  exam- 
ination, §  2086,  p.  1290. 

Bankrupt's  testimony  not  to  be  used  in  criminal  proceedings  against  him, 
§    1556,    p.    931;    §    2324,   p.    1412;    §    2323,    p.    1412. 

Bankrupt's  wife  examined  touching  "business  relations,"  §  1565,  p.  940. 

Bankrupt  voluntarily  removing  residence  after  adjudication  not  entitled  to 
reimbursement,  §  1578,  p.  945. 

Bankrupt's  examination  may  be  used  in  opposing  discharge,  §  1557,  p.  932; 
§  2464,  p.    1489;   §  2641,  p.   1573;   §   2642,   p.   1573. 

Bankrupt  examined  at  any  time  after  adjudication,  even  after  discharge, 
§  1542,  p.   919. 

Bankrupt  examined  without  notice  before  first  meeting,  in  relation  to 
pending   application,   §   1545,   p.   922. 

Bankrupt  examined  even  before  adjudication,  §  1546,  p.  922. 

Broad  scope  of  "Acts,  Conduct  and  Property,"  §  1547,  p.  922. 

Composition,  Examination  of  l^ankrupt  requisite  before  presenting  offer  of, 
§  2359,  p.   1432. 


GKNERAL  INDEX.  2161 

GENERAL    EXAMINATION    OF    BANKRUPT    AND    WITNESSES— Con- 
tinued. 

Competency  of  Witnesses  Governed  by  federal  law,  §  1567,  p.  941. 
Contempt   for   "willfully   evasive"   or   "Flagrantly  false"   testimony,   §    1.568, 

p.  942. 
Creditor    before    filing    claim    may    examine,    but    proof    may    be    required, 

§  1532,  p.  915. 
Contempt  for  disobedience  of  subpcena,  §  1576,  p.  944. 
Competent  as  admission  in   subsequent  litigation  against  witness   as  party, 

§  1555,  p.  930;  §  1839,  p.  1133. 
Duty  of  bankrupt  to  submit  to,  §  1325,  p.  912. 

Examination   cf  other   witnesses  not   admissible  against   bankrupt   on   dis- 
charge, §  2643,  p.   1574. 
•Unless  so  stipulated,  §  2644,  p.  1574. 
Examination  of  others  than  bankrupt  not  matter  of  right,   §   1531,  p.   915. 
Examination  of  each  witness  a  separate  proceeding,  §  1528,  p.  914. 
Emploj'ment  of  Stenographer,  §  1579,  p.  945. 

False  testimony  on,  is  a  "false  oath"  barring  discharge,  §  2540,  p.  1528. 
General    examination    of   nonresident    bankrupt    or    witness    before    another 

referee,  or  State  Judge,   §  1570,  p.  942. 
Good  cause  must  be  shown  for  second  examination,   §   1541,  p.  919. 
Incriminating  questions,  see  "Incriminating  Questions." 
Jurisdiction  to  compel,  §  1525,  p.  912. 
Method    where    before    Judge    of    State    Court    or    another    referee,    §    1571, 

p.  943. 
No   witness   fees    to   bankrupt,   but    expenses,   where   examined    away   from 

his   town,   §   1577,   p.   945. 
Notice  not  requisite   where   bankrupt   witness   upon   issues   between   parties, 

§   1544,  p.  921. 
Notice  to  witness  proper  where  second  examination  sought,  §  1534,  p.  917. 
Notice   to    creditors    of   examination    of   bankrupt    requisite,    §    565,    p.    343; 

§   1535,   p.    917. 
None  to  creditors  nor  bankrupt  for  examination  of  other  witnesses,  §  1536, 

p.  917. 
Objections  to  be  entered   on  record,  §   1553,  p.  928. 
One  general  examination  of  bankrupt  a  matter   of  absolute   right,   §   1530, 

p.   914. 
Order   for   General    Examination   of   nonresident   witness   to   be   made   only 

by  court  before  whom  bankruptcy  case  pending,  §  1572,  p.   943. 
Order  for  examination,  §  1537,  p.  918;  §  1539,  p.  918. 
Order  not  requisite  for  examination  of  bankrupt  at  first  meeting,   §   1538, 

p.   918. 
Pendency    of    litigation    with    witness,    no    excuse    for    refusing    to    testify, 

§   1563,   p.   939. 
Pendency  of  litigation  not  requisite,   §   1564,  p.   940. 
Privileged  Communications  respected,  §  1566,  p.  941. 
Protection    against    use    of    bankrupt's    testimony    applies    only    to    federal 

prosecution,   §    1557,   p.   932. 
Production  of  books,  papers  and  documents  enforced,  §   154S,  p.  926. 
Referee  may  order,  §  537,  p.  332. 

Referee  to  rule  on  admissibility  of  evidence  and  to  exclude  incompetent  tes- 
timony, §  1554,  p.  928. 
Second   examination,   §   1540,  p.   918. 

2  Rem  B— 61 


2162  GEXERAL  INDEX. 

GENERAL    EXAMINATION    OF    BANKRUPT    AND    WITNESSES— Con- 
tinued. 

Who  may  be  examined,  §  1527,  p.  913. 

"Any  designated  person,"  including  bankrupt  and  wife,   §  1527,  p.  913. 

Witness'  fees  and  mileage,  §  1575,  p.   944. 

Witness    not    excused    because    testimony    would    reveal    private    affairs,    § 
1550,  p.  926. 

Witness  objecting,  examiner  must  develop  facts  showing  sufficient  connec- 
tion with   bankrupt  to  make  further  inquiry  relevant,   §   1551,  p.   927. 

Witness,   as   such,   not   entitled  to  attorney,   §   1573,   p.   943. 

Witness  entitled  to  attorney  if  creditor  or  bankrupt,  §  1574,  p.  944;   §  2086, 
p.    1290. 

Whether    bankrupt    may    be    put    under    "general"    examination    before    ad- 
judication,  §   1543,   p.   919. 

W'hether  Federal  equitj-  rules  govern  "general"  examination,  §  1549,  p.  926. 

To   be   in   Writing,   §   1552,   p.   928. 

GENERAL  NATURE  OF  BANKRUPTCY  LAW,  §  15,  p.  31. 

GENERAL  ORDERS  IN  BANKRUPTCY 

No.  Ill,  §  523,  p.  327;  §  1537,  p.  918. 

No.  VI,  §  266,  p.  197;  §  26,  p.  42;  §  293,  p.  213;  §  295,  p.  213;  §  298,  p.  215. 

No.  VIII.  §  74,  p.  78. 

No.  X,  §  290,  p.  209;  §  2021,  p.  1257;  §  2022,  p.  1257;  §  2028,  p.  1259;   §  2029, 

p.    1259;   §   2130,   p.   1310. 
No.  XI,   §  26,   p.   41;   §   261,  p.   196;    §   274,   p.   202;    §   492,   p.    313. 
No.  XII,  §  380,  p.  251;  §  527,  p.  330;  §  528,  p.  330;  §  1918,  p.  1195. 
No.   XII,   Subd.    (3),   §   2626,   p.    1566. 
No.  XIII,  §  878,  p.  502;   §  942,  p.  525. 
No.  XIV,  §  868,  p.  497. 
No.  XIV,  Subd.  (1),  §  2037,  p.  1263. 
No.  XV,  §  871,  p.  498;  §  1073,  p.  611;  §  1127,  p.  642. 
No.   XVI,  §   877,  p.   501. 
No.  XVII,  §  517,  p.  323;  §  946,  p.  526;  §  1022,  p.  570;   §  1055,  p.  605;   §  1075, 

p.  612;  §  1081,  p.  613;  §  1082,  p.  613;  §  1095,  p.  619;   §  2291,  p.  1398. 
No.  XVIII,  §  386,  p.  254;  §  1944,  p.   1213. 
No.  XVIII,  Subd.    (1),  §   1947,  p.   1214. 
No.  XVIII,  Subd.  (2),  §  1947,  p.  1214;  §  1948,  p.  1215. 

No.   XVIII,   Subd.    (3),   §   1941,   p.   1211;   §   1942,  p.    1212;   §   1944,  p.   1213. 
No.   XXI,   §   587,  p.   353;   §   594,  p.   356;   §   596,   p.   356;   §   598,  p.   357;    §   600, 

p.  357;  §  60],  p.  357;  §  604,  p.  360;  §  609,  p.  362;  §  614,  p.  364;  §  614,  p.  365. 
No.   XXI,   Subd.    (1),  §  729,  p.  437;  §  921,  p.   522. 
No.  XXI,  Subd.   (3),  §  741,  p.  442;   §  742,  p.  442. 
No.  XXI,  Subd.    (4),  §  611,  p.   362. 
No.  XXI,  Subd.  (6),  §  836,  p.  483;  §  840,  p.  484;  §  844,  p.  4S6;  §  846,  p.  488; 

§  2294,  p.    1399. 
No.  XXII,  §  552,  p.  336;  §  1459,  p.  926;  §  1552,  p.  928;  §  1553,  p.  928;  §  1554, 

p.  929;   §   2629,  p.   1568. 
No.   XXIII,   §    562,   p.   340;    §   1983,   p.    1230. 
No.   XXVI,  §  523,  p.   327. 
No.  XXVII,  §  2839,  p.  1659;  §  2840,  p.  1660;  §  2851,  p.  1664;  §  2855,  p.   1666; 

§  2857,  p.  1668;  §  2860,  p.   1^570;   §  2974,  p.  1730;  §  2974,  p.  1731. 
No.   XXIX,   §  912,   p.   520. 
No.  XXXI,  §  2429,  p.   1467;  §  2430,  p.  1468. 


GENERAL  INDEX.  2163' 

GENERAL  ORDERS  IN  BANKRUPTCY— Continued. 

Xo.  XXXII,  §  2375,  p.  1439;  §  2378,  p.  1440;  §  2379,  p.  1440;  §  2430,  p.  1468; 

§  2448,  p.  1486;  §  2452,  p.   1486;  §  2454,  p.  I486. 
No.   XXXIII,  §  923,  p.   522;   §   927,  p. -523;  §  930,  p.   523. 
No.  XXXIV,     §  417,  p.  2G9;   §  2015,  p.  1252. 
No.  XXXV,  §  286,  p.  206. 

No.  XXXV,  Subd.   (4),  §  288,  p.  208;  §  2028,  p.  1259;  §  2029,  p.   1259. 
No.  XXXVI,  §  2630,  p.  1569;  §  2959,  p.  1725;  §  3022,  p.  1748;  §  3023,  p.  1748. 
No.    XXXVII,    §    1984,   p.    1230. 
No.  XXXVIII,  §  26,  p.  41;  §  1048,  p.  601;  §  2286,  p.  1397. 

GIFT 

Included  within  term  "transfer,"  §  1332,  p.  780. 

"GOOD  CAUSE" 

Delaj'    in    filing   petition    for    review,    excusable    for,    §    2996,    p.    1737. 

For    Filing   specifications   for   opposing   discharge,   to   be   shown,   §   2454,   p. 

1486. 
For  Re-examination  of  Claim,  to  me  shown,  §  838,  p.  483. 
For  Removal  of  Trustee,  to  be  shown,  §  943,  p.  525. 
For  Sale  at  private  sale,  to  be  shown,  §  1948,  p.  1214. 
For  Second  examination  of  bankrupt,  to  be  shown,  §  1541,  p.  919. 

"GOOD  FAITH" 

What  Constitutes,  under  §  67  (e),  §  1496,  p.  893. 
What  Constitutes  under  §  67  (d),  §  1504,  p.  899. 
Offer    or    Acceptance    of    Composition    not    made    in,    confirmation    refused, 

§  2388,  p.   1444. 
Ofif-set  by  preferred  creditor  must  be  acquired  in,  §  1424,  p.  845. 

GOODS  IN  PROCESS  OF  MANUFACTURE 

Setting  apart  or  delivery  sufficient  to  pass  title  to,  as  against  trustee,  § 
1146,   p.   676. 

GOVERNMENT 

Contracts,  damages  for  breach  of,  §  2191,  p.  1346. 

Year's  limitation  not  applicable  to  claims  of,   §  730,  p.  438;  §  2193,  p.  1346. 

"GREATER  PERCENTAGE" 

Actual  receipt  by  other  creditors  of  like  percentage  not  essential  to  ex- 
oneration from  charge  of  preference,  if  enough  left,  §   1389,  p.  819. 

Creditor  must  receive,  else  no  'preference,   §   1385,  p.  815. 

Either  actual  receipt  of  or  actual  benefit  requisite,  §  1392,  p.  820. 

Mode  of  proving  receipt  of,  §  1390,  p.  820. 

If  no  Net  Decrease  of  Indebtedness  during  the  four  months,  and  after  in- 
solvency, then  no  preference,  §  1386,  p.  816. 

Petition  to  Recover  Preference  must  allege  effect  of  transfer  will  be  to  give, 
§  1765,  p.  1075. 

Transfer  giving,  need  not  necessarily  be  to  creditors  nor  agent,  if  benefit 
accrues  to  creditor,  §  1391,  p.  820. 

"GREATEST  CONVENIENCE" 

Of  parties  where  several  petitions  pending  at  same  time,  §  297,  p.  215. 

"GROSS  INADEQUACY" 

Sufficient  to  refuse  confirmation  of  sale,  §  1952,  p.   1216. 


2164  GEXERAIv  INDEX. 

GUARANTOR 

Bankrupt  as,  his  contract  of  guarantyship  a  provable  debt,  §  643,  p.  383. 
See  "Sureties  and  Guarantors." 

GUARANTY 

Bankrupt's   guaranty  of  dividends   not  yet  declared,  not  a  provable  claim, 
§   650,   p.    390. 

GUARDIAN 

Priority  of  fiduciary  debts  as,  §  2205,  p.   1357. 

HABEAS  CORPUS 

Available  to  protect  bankrupt  from  arrest,  §  472,  p.  306. 
Contempt 

Action  of  District  Court  in  contempt  matters,  not  reviewable  by  Circuit 
Court  on  habeas  corpus,  §  2343,  p.  1419. 

HEARINGS 

Before  referee,  governed  by  U.  S.  Equity  rules,  where  bankruptcy  act  and 
rules  silent,  §  550,  p.  335. 

HISTORY 

Acts  of  13th  Elizabeth  and  of  1st  and  23rd  James  I,  Introd.  (h),  p.  9. 
Bankruptcy  Law  at  Time  of  American  Revolution,  Introd.  (j),  p.  1. 
Defects    of    Former    United    States    Bankruptcy    Laws,    Introd.    (1),    p.    12; 

Introd.    (m),  pp.   13-14. 
Discharge,    first   provision    for,    Introd.    (i),    p.    10. 

First  Bankruptcy  Act  of  United  States,  1800,  Introd.  (k),  p.  11;. p.  1^34. 
Act  of  1841,  Introd.  (1),  p.  12;  p.  1826.  * 

Act  of  1867,  Introd.   (m),  p.  13;  p.  1791. 
Fraudulent   Transfers,    Removals    and    Concealments,    Historically    Original 

Act,   §   105,  p.    104. 
Jewish  Sabbatical  Year  of  Release,  Introd.  (b),  p.  1. 
Queen  Anne's  Act,  Introd.  (i),  p.  10. 

HISTORY  OF  BANKRUPTCY  LAW 

"Cessio  bonorum,"    Introd.    (d),  p.   2. 

English  Bankruptcy  Act  true  origin  bankruptcy  law,  Introd.  (e),  p.  3. 
First  English  Bankruptcy  Act  34  Henry  VIII,  Introd.  (g),  p.  5. 
Origin  and  History  of  Old  English  Bankruptcy  Acts,  Introd.   (f),  p.  3. 

"HOLDING  OUT" 

Partnership  by  "holding  out"  not  subject  to  bankruptcy,  §  63,  p.  68;  §  2239, 
p.   1370. 

HOMESTEAD 

Of  Divorced  Bankrupt,  §  1047,  p.  595  n. 

Husband  and  wife  may  not  irrevocably  encumber  in  Texas,  §  1047,  p.  595  n. 
Reversionary  interest  in  on  termination  of,  passes  to  trustee,  §  972,  p.  545. 
Second  allowance  of  homestead,  after  exhaustion  of  first,  §  1047,  p.  596  n. 
Statutory  pre-requisite    of  filing  deed  or  declaration  of  homestead,  §  1041, 

p.  592  n. 
Whether    court   of    bankrupt's    domicile    may    set    apart    homestead    in    real 

estate  in  another   State  .having  dififerent   homestead  laws,   §   1039,   p.    592; 

§  1707,  p.  1054  n. 


GENERAL  INDEX.  2165 

HOTEL  CORPORATIONS 

See  "Involuntary  Bankruptcy." 

HUSBAND  AND  WIFE 

Bankrupt   beginning  new   business  as   agent  or  manager   for  wife,   §   2516, 

p.  1515. 
Community  property  of,  priority  of,   §  2205,  p.   1357. 
Dealings  between,  to  be  scrutinized  with  care,  §   556,  p.  338. 
Husband's  admissions  as   "manager"  for  wife,   §  559,  p.   339. 

HYPOTHETICAL  QUESTION 

No  review  of,  §  2840,  p.  1660. 

ICE  HARVESTING  CORPORATIONS 

See   "Involuntary   Bankruptcy." 

"IDEM  SONANS" 

When  misnomer  not  fatal  to  discharge,  §  2772,  p.   1626. 

"I  DON'T  KNOW"  OR  "I  DON'T  REMEMBER" 

Frequent  repetition  of,  as  discrediting  witness,  §  1851,  p.  1151. 

ILLEGALITY 

Allowability  of  claims  tainted  with,  §  803,  p.  469. 
Trustee  may  plead,  §  1195,  p.  696. 

IMPAIRMENT   OF   OBLIGATION    OF  CONTRACTS 

Discharge  in   Bankruptcy  Does  not  Impair   Obligation  of  Contracts,  §   13, 
p.  28. 

IMPRISONMENT  FOR  DEBT 

Imprisonment  for  Contempt  is  not,  §  1841,  p.  1136. 

IMPUTED  ACTS  OF  BANKRUPTCY,  §  171,  p.  144. 
Agents  of  corporations,   §   171,  p.   144. 
Partners,  §  171,  p.  144. 

IMPUTED  ACTS  BARRING   DISCHARGE 

Acts    of  agents   and   partners   whether   imputable   to  bar,   §  2484,   p.    1502; 
§  2485,  p.  1502;   §  2563,  p.   1542;   §  2793,  p.   1633. 

IMPUTED   KNOWLEDGE 

Of    agent,    §   2779,   p.    1627. 

INALIENABLE  PROPERTY,  §  975,  p.  546. 

INCHOATE  INTERESTS 

Do  not  pass  to  trustee,  §  971,  p.  544. 

Estates  by  curtesy  initiate  do  not  pass,  §  971,  p.  544. 

Inchoate  dower  does  not  pass,  §  971,  p.  544. 

INCOMPLETE  TRANSCRIPT 
On  appeal 

Remedies   for,   §   2968,   p.   1728. 

INCORPORATED  SOCIAL  CLUB 

See  "Involuntary   Bankruptcy." 


2166  GEXERAI,  INDEX. 

INCRIMINATING  TESTIMONY 

Constitutional  rights  as  to,  preserved,  notwithstanding  Bankr.  Act,  §  7   (9), 

§   1558,  p.   933. 
Immunity   from  use   of   bankrupt's   testimony   effectual   obstacle   to    convic- 
tion for  perjury,  §  2324,  p.  1412. 
If  "No  Reasonable  Possibility"  that  answer  could  tend  to  incriminate,  no 

privilege,   §   1559,  p.  935. 
Privilege  does  not  authorize  refusal  to  be  sworn  altogether  nor  to  produce 

documents,  §  1560,  p.  937. 
Privilege   to  be   claimed  at   time   question   asked   or  production   demanded, 

§  1561,  p.  938. 
Privilege  not  waived  by  voluntary  bankruptcy,  §  1562,  p.  939. 
Refusal  to  answer  incriminating  question,  whether  bar  to  discharge,  §  2581, 

p.   1548. 
Whether    witness    volunteering    testimony    tending    to    incriminate     waives 

protection  on  cross-examination,  §  1562,  p.  939  n. 

INCRIMINATION 

Refusal    to   answer    trustee's    petition    for    summary   surrender    because    of, 

§   1852,   p.    1152   n. 
Refusal  to  surrender  documents  because  of,   §   1852,  p.   1152  n. 

INDEBTEDNESS 

Dividing  of  ineffectual  in  cases  of  preference,  §  1421,  p.  843  n. 

INDEMNITY  FOR  EXPENSES 

Demandable    by   referee,   clerk,   etc.,   §   286,   p.   206;    §   2130,   p.   1310. 

INDEMNIFYING 

Of  trustee,  when  creditor  uses  trustee's  name,  §  2831,  p.  1655. 

INDEMNIFYING  SURETIES 

When  indirect  preferences,  §  1303,  p.  764. 

INDEMNITY 

Partner's   right   of,   for   paying   copartner's   debt,   §   2261,   p.   1385. 
Referee,  clerk  and  marshal  may  require  in  advance,  §  2021,  p.  1257. 
Sureties'  rights  to  retain,  unaflfected  by  adjudication  and  discharge,   §   1514, 

p.    903. 
Trustee  not  entitled  to,  before  delivering  exemptions,  §   1090,  p.   617. 

INDEPENDENT  CONTRACTORS 

Not  entitled  to  priority,  §  2172,  p.  1338. 

INDEPENDENT  PLENARY  ACTIONS  BY  CREDITORS  PENDING  AD- 
JUDICATION    OF    BANKRUPTCY,    §    399,    p.    260. 

INDEPENDENT  PLENARY  SUITS 

Whether  §  24  applies  to,  or  only  to  bankruptcy  proceedings,  §  2941,  p.  1717. 

INDEPENDENT   PLENARY    SUIT   BY    CREDITORS    NOT    MAINTAIN- 
ABLE AT  ANY  TIME  IN  U.  S.  DISTRICT  COURTS,  §  401,  p.  262. 

INDIANS 

Not  subject  to  Involuntary  Bankruptcj',   §  53,  p.   63. 


GENERAL  INDEX.  2167 

INDICTMENT 

For  "False   Oath,"  to  aver   falsity  and   scienter,  §  2322,  p.   1412. 
Immunity  from  use  of  bankrupt's  testimony   effectual   obstacle   to   convic- 
tion for  perjury,  §  2324,  p.   1412. 
Schedules  of  bankrupt  not  to  be  used  before  Grand  Jury,  §  2323,  p.  1412. 
To  be  Specific  and  to  Contain  All  Elements,  §  2321,  p.  1411. 

INDIRECT  PREFERENCE 

See    "Preference,    Indirect." 

See  "Preference — First  Element  of." 

INDIVIDUAL  BANKRUPTCY 

Partner  selling  out  to  remaining  partner,  whether  preference  to   individual 

creditor,  §  1312,  p.  769. 
Preference  by  partnership,  not  preference  in  individual  bankruptcy,  though 

firm  assets  are  being  administered  in,  §  1290,  p.  759;  §  2268,  p.  1387. 
Partnership  debts  provable  against  Individual  Bankrupt,  §  2237,  p.   1368. 
Partnership  debts  in 

How  scheduled,  §  2766,  p.  1624. 

Not  discharged  unless   duly  scheduled,   §  2766,  p.   1624. 

INDIVIDUAL   DEBTS 

In  partnership  bankruptcies,  see  "Discharge — Of  Individual  Debts  in 
Partnership    Bankruptcies." 

INDIVIDUAL  ESTATES 

Brought  in  though  firm  alone  adjudicated,  §  65,  p.  71;  §  2231,  p.  1365. 

Consent   not   necessary,    §   2232,   p.    1366. 

Partnership  trustee,  trustee  also  of  individual  estates,  §  2233,  p.  1366. 
Depletion    of   individual    estate    not    preference    in    partnership    bankruptcy, 
§    1291,   p.   759. 

INFANTS 

Not  subject  to  Involuntary  Bankruptcy,  §  51,  p.  63. 

INFORMATION 

Duty   of  referee   to  furnish,   §   509,   p.   321. 
Trustee  to  furnish,  §  914,  p.  520. 

INITIALS 

Whether   "due   scheduling,"    §    2763,   p.    1623. 

INJUNCTION 

Availaljle  to  protect  bankrupt  from  arrest,  §  472,  p.  306. 

Before  Adjudication,  see  "Restraining  Orders  and  Injunctions." 

Filing  of  Bankruptcy  Petition  operating  as  a  "caveat,  attachment  and  in- 
junction," §   1215,  p.  718. 

Plenary  Action  of  Trustee  against  Adverse  Claimant,  injunction  may  be 
issued  in,  §  1727,  p.  1064. 

Suits  in  personam  against  trustee  for  wrongful  seizure  or  conversion,  en- 
joining of,    §    1781,   p.    1080;    §    1782,   p.   1080. 

INJURIES  TO  PROPERTY 

Rights  of  Action  on,  pass  to  trustee,  §  1019,  p.  568. 


2168  GENERAL  INDEX. 

'IN  PERSONAM" 

Actions  to  recover  debts  in  personam,  not  to  be  brought  in  bankruptcy- 
court,  §  1694,  p.  1043;  §  1810,  p.  1109. 

Judgment,   see   "Judgment   in    Personam." 

Rights  of  action  in  personam,  not  "property"  in  "possession"  of  bankrupt, 
§   1810,   p.    1109. 

INSANE  PERSONS 

Xot  subject  to  Involuntary  Bankruptcy  if  insane  at  time  of  filing  petition, 
§  54,  p.  64. 

INSANITY 

After  filing  of  petition   no  abatement,   §   98,  p.   94;   §  2420,   p.   1464;   §   24T4, 

p.   1494. 
After  commission  of  Act  but  before  filing  petition,  §  96,  p.  92. 
Does   not   affect   right   of   discharge,   §   2420,   p.   1464;   §   2474,   p.    1494. 
Guardian  Ad  Litem  to  be  appointed,  §  98,  p.  95. 
Of   one   partner   does   not  defeat  jurisdiction   over  partnership,   §   96,   p.   93. 

INSOLVENCY 

Adjudication  of  bankruptcy  as  proof  of  and  res  adjudicata,  §  789,  p.  463;  § 

1362,  p.  793;  §  1460,  p.  867  n;  §  1776,  p.  1078. 
Admissions  of  Agent,  as  to  Insolvency  of  Principal,  §  1360,  p.  793. 
Admission  of,  by  bankrupt  not  competent  against  creditor,  §  1354,  p.  791. 
Application  for  Receiver  by  debtor,  "being  insolvent,"  §  152,  p.  132. 
Bankrupt's  Books  admissible,  §  1355,  p.  791. 
Burden   of  proof   of,   in    Receiverships   as   acts   of   bankruptcj^   not   shifted 

by   debtor's   failure   to   produce   books    and  appear   for   examination   and 

trial,   §   154,   p.   133. 
What   Constitutes,    §   181,   p.    151   n;   §   1343,   p.   786. 
Choses  in  Action  and  Intangible  property,  §  1353,  p.  790. 
Contingent  Liabilities  whether  counted  in  Determining  insolvency,  §   1366, 

p.  794. 
Date    of    Solvency   when   insolvency   not    part   of   creditor's    case   but    Sol- 
vency Available  as  Defense,  date  of  petition,  §  176,  p.  148. 
Definition,  §  181,  p.  151  n;  §  1343,  p.  786. 
Debtor  to  Appear  and  also   Produce   Books  at  Trial,   to  afford  discovery, 

§  179,  p.  150. 
Destruction  or  Loss  of  Adequate  Books,  no  excuse,  §  180,  p.  150. 
Date    of    Insolvency    and    "Fair    Valuation,"    date    immediatel}^    preceding 

Transfer,  §   1364,  p.   793. 
Debts    Owing   but   not   yet    Due    Included    in   bankrupt's   liabilities,    §    1365, 

p.   794. 
Debtor  to  be  insolvent  at  Date  Lien  by  Legal   Proceedings  Obtained,  else 

lien  not  nullified,  §  1460,  p.  866. 
Date    of,    when    creditors    to    prove    insolvency    in    chief,    is    insolvency    at 

time  act  committed,  §  175,  p.  148. 
Equity    of    Redemption    Counted,    if    Fraudulent    Transfer    be    by    way    of 

security,   §   1345,  p.   788. 
F^xempt   Property  Counted,  §  1347,  p.   788. 
Failure  to  Keep  Adequate  Books,  no  excuse,  §  180,  p.  150. 
"Fair  Valuation,"  §  1349,  p.  789. 
''Going   Concern"   where   bankrupt   is,   "Fair  valuation"   is   not   "Scrap"   nor 

"Wrecker's  value,"  §  1352,  p.  790. 


GENERAI,  INDEX.  2169 

INSOLVENCY— Continued. 

Insolvenc)^  of  individual   partners   to   be   alleged   in   involuntarj'-.  partnership 

petition,  §  247,  p.   189. 
Instances  of  insolvency,  §  174,  p.  147  n. 
Inventory   and    Appraisement    in    bankruptcy,    whether    admissible,    §    1357, 

p.    791. 
Jury  on  issue  of,  available  to  nonjoining  partners,  §  74,  p.  77. 
IMere  admission  of,  insufficient  in  proof  of  Fifth  Act  of  Bankruptcy,  §  166, 

p.   140. 
]\Iust   be   ground  for   receivership   by   State   Law   to   be   Act   of  bankruptcy, 

§  157,  p.  133. 
]\Larket  Value,  as  "Fair  Valuation,"  §  1351,  p.  789. 

Ofif-sets   purchased  with  knowledge   of,   not  available,   §   1182,  p.   692. 
Ordinary    Rules    apply   in   proof   of,   §    1363,   p.    793. 
Preference,  none  without   insolvency,  §   126,  p.   112;   §   1342,  p.  785. 
Property   Fraudulently   Disposed  of  not   to   be   Counted  as   assets,   §   1344, 

p.    787. 
Property  Preferentially  transferred  as  security,  not  to  be  excluded,  §  1346, 

p.    788.  /J  ^^ 

Partnership   Xot  Insolvent,  unless   All   Partners  insolvent,   §   1351,  p.  789. 
Production   of  Account   Books   at  Time   of  Trial,    etc.,   whether  applies   to 

Receiverships  as  acts   of  bankruptcy,   §   181,  p.   151. 
Provable  only  b}^  Record,  as  ground  of  receivership,  as  act  of  bankruptcy, 

§   158,  p.  .134. 
Preferential  transfer,   insolvency  at  time   of,  to  be   alleged,   §   17G3,  p.   1075. 
Producing  books   and   appearing   for   examination   at   trial,   §   154,   p.    133. 
Question   for  Jury,   §  153,   p.   133   n. 

Requisite   in   all    acts    of   bankruptcy    except    "Fraudulent   Transfers"    "As- 
signments,"   "Receiverships    because    of    insolvency"    and    "Written    Ad- 
missions," §  174,  p.  147. 
Receivership    Because    of,   as    act    of   bankruptcj-,    insolvency   need    not   be 

according  to   Bankruptcy  definition,   §    156,   p.    132. 
Not  Requisite  in  Fraudulent  Transfer  suit,  where  actual  intent  to   defraud 

proved,   §  1733,  p.   1067. 
"Reasonable    cause    for    belief    preference    intended"    involves    reasonable 

cause  for  belief  that  debtor  knew  his  own  insolvency,  §   1404,  p.  831. 
"Reasonable   Cause   for   Belief"   of,   requisite   to   avoid   preferential   transfer, 

§   1402,   p.  830. 
Referee's  Allowance  of  Claims,  whether  admissible,  §  1359,  p.  792. 
Requisite,  not,  in   chief,   in   First  Act   of   Bankruptcy,   §   116,   p.   109. 
Requisite,  not,  in  proof  of  Fifth  act  of  bankruptcy,  "Written  Admissions," 

etc.,   §   170,  p.   143. 
Requisite,  not,  to  Voluntarj'  Bankrupt,   §  42,  p.   57;  §  193,  p.   159. 
Return  of  Execution  Unsatisfied,  whether  prima  facie  Proof  of  insolvency, 

§   1361,  p.  793. 
Requisite,  not,  in  proof  of  assignment  as  act  of  bankruptcj^   §   146,  p.   128. 
Requisite,  not,  as  part  of  creditors'  case  in  chief,  under  first  act,  but  Sol- 
vency complete  bar  in  defense,  §  177,  p.  148. 
Solvency  as  Defense,  not  competent  to  Assignment  as  Act  of  Bankruptcy, 

§  147,  p.  128. 
Sacrifice  Sale  is  not  "Fair  Valuation,"  §  1350,  p.  789. 
Schedules    Inadmissible   against   preferred    creditor,    §    1356,    p.    791. 
Sole  Ground  for  Appointment  of  Receiver,  insolvency  need  not  be,  as  act 

of  bankruptcy,  §   158,  p.   135. 


2170  GENERAL  INDEX. 

INSOLVENCY— Continued. 

Supervening  Insolvency  Destroying  right  of  Off-set,  §  118-i,  p.  692. 

Supervening  Insolvency  Creating  right  of  Off-set,  §  IISG,  p.  694. 

Sale   by    Receiver    in    State    Court   or   by   Trustee    in    Bankruptcy,    whether 

Competent  as  proof  of,  §   1358,  p.  792. 
In   Trustee's   Plenary   Action  to   set   aside    Fraudulent   Transfer,   insolvency 

means  Inadequacy  of  Assets,  not  mere   Inability  to  Pay  in  due  course,  -^ 

1734,  p.  1067. 
Voluntary   petition   in    bankruptcy   need   not   show,    §    193,   p.    159. 

INSPECTION 

Trustee's  accounts  and  papers  open  to,   §  915,  p.   520. 

"INSTRUMENT  IN  WRITING" 

Judgment   or   Transcript    not   an    "instrument   in   Writing,"    to    be   attached 

to   proof   of   claim,    §    602,   p.    358. 
Lend   Instrument  to  Surety  to  make   proof,   creditor   not   obliged  to,  §  612, 

p.   363. 
Must  be  for   Money  to  be  "Provable,"  §  677,  p.  412. 

Must  be  absolutely  owing  to  be  "provable,"  §  670,  p.  406,  §   676,  p.  412. 
Must   be   "Absolutely    Owing"   at   Time   of   Bankruptcy,    to    be   "Provable," 

§  678,  p.  412. 
Need  not  be  "Due"  to  be  "Provable,"  §  678,  p.  412. 
Original  to  be  attached  to  Proof  of  Claim,  §  602,  p.  358. 
Withdrawing  of,  after  Allowance  or  Disallowance,  §  602,  p.  '358. 
Written   Contracts  included,   §   602,  p.  358. 

INSURANCE 

Agreement   to  insure   operating  as   equitable  assignment,   §    1253,  p.   740. 
Chargeable  as  part  of  costs  on  selling  free  of  liens,  §  1996,  p.   1234. 
Policy  of,  summary  order  for  surrender  of,  §  1705,  p.  1051  n. 
Policy  of,  see  "Life  Insurance  Policies  as  Assets." 

INSURANCE  CORPORATIONS 

See   "Involuntary   Bankruptcy." 

INTENT 

Necessary  only  in  first  two  acts  of  bankruptcy,  §  173,  p.  146. 

INTENT  TO  DEFRAUD 

What  Constitutes,   in   Commission  of  Acts  of   Bankruptcy,   §   109,   p.   106. 
Intent  to  Avoid  Distribution  in  Bankruptcy  Court,  not,  §  109,  p.  106. 
None   implied   in   Third   act   of   bankruptcy,   §    134,   p.    118. 
None  implied  in  Fourth  act  of  bankruptcy,  §  144,  p.   126. 
Participation  of  Transferee   Requisite,  §  114,  p.   108. 
Proof  Aided  by  Presumptions,  §  110,  p.  107. 

Requisite  not,  in  proof  of  Assignment  as  Act  of  Bankruptcy,  §  148,  p.   129. 
Not  the  Same  as  Intent  to  Prefer,  §  109,  p.  106;  §  113,  p.  108;  §  1221,  p.  723; 
§  1305,  p.  766;  §  1397,  p.  825. 

INTENT  TO  PREFER 

As  Act  of   Bankruptcy,  §   131,  p.   114. 

Bankrupt's    intent    to    prefer,    whether    requisite    in    proof    of    "Reasonable 

Cause  to   Believe  Preference   Intended,"  §   1405,  p.  832. 
Bankrupt's,  whether  material  to  Avoid  Preference,  §  1405,  p.  832. 


GENERAL  INDEX.  2171 

INTENT  TO  PR5:FER— Continued. 

Circumstantial    Evidence,    §    131,    p.    114;    §    1406,   p.    834. 

Creditor's,  Immaterial  as  Act  of  Bankruptcy,  §  130,  p.  114. 

Distinguished  from  Fraudulent  Intent,  §  109,  p.  106;  §  113,  p.  108;  §  1221,  p. 

723;  §  1305,  p.  766;  §  1397,  p.  825. 
Distinguished  from  intent  to  Apply  on   Debt,   §  1340,  p.  784. 
Other  Preferential  transfers  as  proof  of  Particular  intent,  §  131,  p.   114. 
See  "Presumptions." 

Presumptions,  §  133,  p.  117;  §  1406,  p.  834. 
Requisite   not,  in   third  act   of  bankruptcy,   §   135,   p.   118. 

INTEREST 

Xone  to  be  included  in  summary  order  on  assignee  or  receiver,   §   1847,  p. 

1145. 
Payment   of  in   advance,   not  preference,   §    1318,   p.   774. 
In  Proof  of  claim,  §  598,  p.  357. 
Provable,  when,  §  679,  p.  413. 
Rebate  of  interest,  where  instrument  not   due  and  not  bearing  interest,   § 

679,  p.  413. 
Trustee  to  account  for,  §  906,  p.  518. 
Whether   allowed   on   tracing  trust   funds,   §   1884,   p.    1176   n. 

INTERLOCUTORY  ORDER 

Whether   cppealable,   §   2890,   p.   1697   n. 

INTERVENING  CREDITORS 

Creditors    may    not    intervene    against    partnership    petition    filed    by    one 

partner,  §  76,  p.  78. 
Joining   with    Petitioning   Creditors,    see    "Parties   in    Involuntary    Proceed- 
ings— Joining  of  Additional   Creditors." 
To   Resist  Adjudication 

"At  any  Time,"  §  319,  p.  223. 

Attaching    creditor    may   intervene    without    surrendering    property    at- 
tached, §  320,  p.  223. 
Jury  trial    not  available  to  intervening  creditor,  §  409,  p.  265. 
Lienholder,  unless  also  creditor,  may  not  intervene,  §  321,  p.  223. 
Xo   intervening   permitted   to    contest   Voluntary   Petition,   §   43,   p.    57; 

§  76,  p.  78;  §  195,  p.  159;  §  318,  p.  223. 
Objections  to  improper  intervention,  §  322,  p.  224. 
Receiver   for   dissolution    of   corporation   may   not   intervene,   §   321,    p. 

224. 
Right  to  intervene.  §  317,  p.  222. 

INTERVENING   IN   PENDING    SUIT   IN    STATE   COURT 

Where  lien  by  legal  proceedings  nullified  by  bankruptcy,  §  1471,  p.  874. 

INTERVENING  PETITION 
Claiming  lien  on  property 

Xot   "bankruptcy    proceedings    proper,"    but   "controversies,"    §    2875,   p. 

1687. 
Reviewable  by  petition  to  revise,  §  2943,  p.  1720. 
Xot  appealable  as  "Claim,"  §  2908,  p.  1705. 
Referee  may  pass  on,  §  538,  p.  332. 
Third  parties  may  intervene  and  claim  property,  §  1893,  p.  1184. 


2172  GEXERAL  INDEX. 

INTERVENING  BY  TRUSTEE 

Bankruptcy  court  may  enjoin  State  court  proceedings  to  permit,  §   1598,  p. 

964;  §   1651,  p.   1015. 
In  pending  suit,  does  not  oust  State  court,  §  1596,  p.  964;  §  1648,  p.  1014. 
State  courts  administer  bankruptcy  law,  §  1597,  p.  964. 
See  "Pending  Suits  by  and  against  Bankrupts."  See,   also,   "Substitution — 

Of  Trustee  in  Pending  Suit." 

"INTRICACY  OF  LEGAL  QUESTIONS" 

As  element  in  fixing  attorney's  fees,  §  2047,  p.  1268. 

INVENTORY 

Admissibility  of  as  against  creditor,  §  1357,  p.  791. 

INVOLUNTARY  BANKRUPTCY 

After  adjudication,  voluntary  and  involuntary  proceedings  alike  exce^jt  as 
to  time  of  filing  schedules,  §  476,  p.  308. 

All  partners  to  be  made  parties,  §  67,  p.  73. 

Bridge  Construction  Companies,  not  subject  to,  §  94,  p.  90. 

Building  and  Loan  Companies,  not  subject  to,  §  94,  p.  89. 

Building  and  Constructing  Companies,  when  subject  to,  §  94,  p.  90. 

Change  of  Debtor's  Class  After  Commission  of  Act,  but  before  filing  of 
petition,  §  95,  p.  91. 

Classes  of  Corporations,  Commonh-  Accepted  and  Popular  meaning  given 
to,  §  82,  p.  81. 

Commission  of  Act  of  Bankruptcj^  Requisite,  §  103,  p.  103. 

Construction  companies    not  subject  to,  §  94,  p.  90. 

Circulating  Library  corporations    not  subject  to,  §  94,  p.  89. 

Common  Carriers    not  subject  to,  §  94,  p.  88. 

Cattle  Dealer  exempt  from,  §  48,  p.  61. 

Corporation,  actual  occupation  of  governs,  §  87,  p.  85. 

Corporation  engaged  in  several  occupations,  some  within  and  others  with- 
out statutory  classes,  §  86,  p.  85. 

Corporation    must  be  "Principally"  engaged,  §  85,  p.  84. 

Corporation     not  within  statutory  classes,  exempt,  §  94,  p.  87. 

Death  or  insanity  after  filing  of  petition,  no  abatement,  §  98,  p.  94. 

Decedents    not  subject  to,  §  55,  p.  64. 

Hotel   Corporations    not  subject  to,  §  94,  p.  89. 

Ice  Harvesting  Corporations,  when  subject  to,  §  94,  p.  90. 

Infants,  when  subject  to,  §  51,  p.  63. 

Indians,  when  subject  to,  §  53,  p.  63. 

Insane  persons,  if  insane  at  tirrie  of  filing  petition,  not  subject  to,  §  54,  p.  64. 

Incorporated  Social  clubs    not  subject  to,  §  94,  p.  88. 

Insurance  companies  not  subject  to,  §  94,  p.  89. 

Individual  Petitions  not  amendable  to  include  partnership,  §  69,  p.  73. 

Incidental  Occupation  not  sufficient,  §  85,  p.  84. 

Incidental  Other  Occupation  than  Farming  or  Wage  Earning  does  not 
confer  jurisdiction,   §  49,  p.   61. 

Individual  Partner  Joinable  with  Partnership  in,  §  64,  p.  69. 

^^■hat  act  of  bankruptcy  requisite  to  join  partners  with  firm,  §  64,  p.  70. 
Jurisdiction  over  Corporations  more  limited  under  act  of  1898  than  under  act 

of  1867,  §  81,  p.  80. 
Live  Stock  Dealer  Exempt,  §  48,  p.  61. 


GENERAL  INDEX.  2173 

INVOLUNTARY  BANKRUPTCY— Continued. 

Laundry  companies  not  subject  to,  §  94,  p.  88. 

Livery  Stable  corporations  not  subject  to,  §  94,  p.  88. 

]\Ianufacturing  Corporations  subject  to,  §  84,  p.  83;  §  90,  p.  86. 

IMining  corporations  subject  to,  §  93,  p.  87.    , 

Married  women,  when  subject  to,  §  52,  p.  63. 

Mercantile  Agency  Corporations    not  subject  to,  §  94,  p.  90. 

Partners  subject  to,  §  56,  p.  64. 

Partnership  act  of  bankruptcy  need  not  be  actually  committed  by  all  part- 
ners, §  66,  p.  72. 

Private   banker    subject   to,   §    79,   p.    79. 

Private  Hospitals    not  subject  to,  §  94,  p.  90. 

Printing  and  Publishing  Corporations    subject  to,  §  92,  p.  87. 

Petition  by  one  partner  against  firm,  involuntary  as  to  nonconsenting  part- 
ner, §  72,  p.  74. 

Petition  in,  see  "Involuntary  Petition." 

Quasi-Public  Corporations  not  subject  to,  §  89,  p.  86. 

Railroads    not   subject   thereto,   §   94,   p.    88. 

Real  Estate  Corporations,  whether  subject  to,  §  94,  p.  89. 

Secret  or  Silent  partners  on  discovery  brought  in,  §  70,  p.  74. 

Stock  brokerage  corporations,  when  subject  to,  §  94,  p.  89. 

Telephone  Companies    not  subject  to,  §  94,  p.  88. 

Theatrical  Corporations  not  subject  to,  §  94,  p.  88. 

Trading  corporations  subject  to,  §  83,  p.  82;  §  91,  p.  87. 
Definition  of,  §  83,  p.  82. 

Unincorporated  companies  subject  to,  §  77,  p.  78. 

Warehouse  Corporations    not  subject  to,  §  94,  p.  89. 

Water  companies    not  subject  to,  §  94,  p.  88. 

Who  May  be  Thrown  Into,  §  45,  p.  58. 

INVOLUNTARY  PETITION 

Adjudication  on,  to  be  "soon  as  may  be,"  §  423,  p.  273. 

Allegations  not  denied  need  not  be  proved,  §  330,  p.  226.  , 

Amendments,  §  261,  p.   195. 

Amendments  to  involuntary  petition,  see  "Amendments." 

Amendment  after  demurrer  sustained,  §  325,  p.  225. 

Answering  over  waives  defects,  §  260,  p.  195. 

Answer  day,  §  315,  p.  221. 

Answer,  §  323,  p.  225. 

Who  may  answer,  §  326,  p.  225.  • 

Form  of  answer,  §  327,  p.  225. 
Allegations  and  Form  of 

Corporation   to   be   brought   within   class   subject   to   bankruptcy,   §   242, 
p.   186. 

Natural  person  to  be  shown  not  within  excepted  classes,  §   243,  p.   186. 

Exceptions   of   farmers   and   wage   earners   not   mere   matter  of   defense, 
§  244,  p.  187. 

Negativing  of  exceptions  not  necessarily  by  direct  denial,  §  245,  p.  188. 

Act  to  be  shown  to  be  within  four  months,  §  246,  p.  189. 

Insolvency    of   individual    partners    to    be    alleged    in   insolvency    cases, 
§  247,  p.  189. 

All    essential    facts    of    capacity,   jurisdiction    and    cause    to    be    pleaded, 
§  239,  p.  185. 


2174  GUNERAIv  INDliX. 

INVOLUNTARY  PETITION— Continued. 

Nature  and  amount  of  petitioners'  claims,  §  240,  p.  185. 

Number  of  petitioners  joining,  §  240,  p.  185. 

Provability  of  petitioners'  claims,  §  240,  p.  185. 

Amount   of   total   indebtedness,   §   241,   p.    186. 

Residence,  domicile,  etc.,  §  241,  p.   186. 

Creditors   to  be   shown   to  have   existed   at   time   of   commission   of  act, 
§  248,  p.  189. 

Distinct  acts  alleged  in  same  petition,  §  249,  p.   189. 

Multifariousness,  §  250,  p.  189. 

Petition  a  pleading  and  to  conform  to  usual  rules,-  §  251,  p.  -191. 

To  set  up  facts  not  legal  conclusions,  §  252,  p.  191. 

Facts  not  to  be  alleged  argumentatively,  §  253,  p.  191. 

Ultimate  facts,  not  evidence,  to  be  pleaded,  §  254,  p.  191. 

No   greater   nicety   nor   fullness   requisite   than   nature   of   facts   permits, 
§  258,  p.  194. 

Prescribed  bankruptcy  forms  to  be  adhered  to  as  closely  as  facts  per- 
mit, §  259,  p.  194. 

Adopting  earlier  acts  from  another  petition,  §  266,  p.   197. 

Allegations   in  mere  words   of   statute   insufficient,   except   as   to   assign- 
ments, receiverships  and  written  admissions,  §  255,  p.  191. 

Allegations   of   residence,   domicile,    etc.,   not   to   be   made    disjunctively, 
§  256,  p.  192. 

Essential  facts  of  act  charged  to  be.  set  forth,  §  257,  p.  192. 

Facts  to  be  alleged  definitely  and  certainly,  §  257,  p.  192. 
Answer  denying  act  pleaded   but   alleging   facts    sufficient   to   constitute   an- 
other act,  §  331,  p.  226. 

All  defenses  available  to  bankrupt,  §  333,  p.  226. 

Validity  of  petitioning  creditors'  debt,  a  valid  issue,  §  333,  p.  227. 

Denial    of   authority   of   person    acting   for   petitioning   creditors,    §    333, 
p.  227,  footnote. 
Burden  of  Proof  in  prosecuting,  on  creditors,  §  172,  p.  146. 
Defective  denial  cured  by  going  to  proof,  §  329,  p.  226. 
Demurrer  to  petition,  §  324,  p.  225. 
No  demurrer  to  answer,  §  332,  p.  226. 
Form  of,  §  190,  p.  158  n. 

Intervening  of  Creditors  to  Resist  Adjudication,  see  "Intervening  of  Cred- 
itors to  Resist  Adjudication." 
Joining  of  additional  creditors,  see  "Parties  in  Involuntary  Proceedings." 
Motions  to  involuntary  petition,  §  334,  p.  228.  * 

Parties  and  petition,  see  "Parties  in  Involuntary '  Proceedings." 
Producing  books  and  appearing  for  examination  at  trial,  §  154,  p.  133. 
Points  of  difference  between  voluntary  and,  §  190,  p.  157. 

Involuntary  petition   to  be  in  duplicate,   §   190,  p.   157. 

Schedules   filed   with   voluntary   petition,   but   within   ten   days   after   ad- 
judication, in  involuntary,  §  190,  p.  157. 
Time  to  answer  amended  petition,  §  ,'i2S,  p.  ;>25. 
Two  or  more  pending  at  same  time,  §  293,  p.  212. 

Petition  in  district  of  domicile  first  heard,  §  293,  p.  212. 

In    partnership    and    corporation    cases,    petition    first    filed,    first    heard, 
§  294,  p.  213. 

Other  hearings  stayed,  §   295,  p.   213. 


GENERAL  INDEX.  2175 

INVOLUNTARY  PETITION— Continued. 

Court  making  first  adjudication  retains  jurisdiction,  §  296,  p.  :213. 
But  court  having  right  to  retain,  may  relinquish,  §  297,  p.  214. 
Amendment  bj^  adopting  earlier  act  from  other  petitions,  §  298,  p.  215. 
Whether  partner  may   file  ordinarj-   involuntar}-  petition   against   firm,   §   75, 
p.  78. 

JEWISH  SABBATICAL  YEAR  OF  RELEASE,  Intro,  (b),  p.  1. 

JOINDER 

Of  Acts  of  Bankruptcy 

In  one  petition,  permissible,  though  acts  be  distinct,  §  249,  p.  1S9. 
Of  Grounds  of  Opposition  to  Discharge 

In  one  specification  permissible,  §  2599,  p.  1554. 

JOINING  OF  ADDITIONAL  CREDITORS 

See  "Parties  in  Involuntary  Proceedings."' 

JOINT  APPEAL 

Practice  on,  §  2836,  p.  1656. 

JOINT  CONTRACTORS 

I^Iay  not  Join  as  Voluntary  Bankrupts,  §  40,  p.  56. 

JOINT  DEBT 

Separate  debt  not  to  be  off-set  against,  §  1175,  p.  689. 

JOINT  OWNERS 

May  not  Join  as  Voluntary  Bankrupts,  §  40,  p.  56. 

"JOINTLY  LIABLE" 

See  "Sureties  and  Guarantors." 

"JUDGE" 

Alone,  ma}^  remove  trustee,  §  942,  p.  525. 

Alone,  to  order  sale  before  adjudication,  unless  unable  to  act,  §  1946,  p.  1214. 

JUDGMENT 

See  "Adjudication  of  Bankruptcy." 

Debtor's  Voluntarj^  action  not  implied  in  Preferences  bj^  way  of,  §  1337, 
p._  783. 

If  Discharge   Refused,  §  2705,   p.   1603. 

If 'Discharge  Xot  Interposed  though  granted,  §  2706,  p.  1603. 

Dormant  judgment,  whether  provable,   §   684,  p.  -415. 

Erroneously  entered,  notwithstanding  discharge  dulj'  pleaded  and  proved, 
§  2687,  p.  1596. 

Fraud,  Judgment  for  any  kind  of,  excepted  from  discharge,  before  amend- 
ment of  1903,  §  2747,  p.  1617  n. 

Fraudulent,  may  be  attacked  by  trustee,  §  1224,  p.  725. 

Lien  of  judgment  Nullified  by  §  67  (f),  nevertheless,  judgment  itself  "allow- 
able," §  777,  p.  460. 

Means  Judgment  Lien,  not  judgment  itself,  when  nullified  by  bankruptcy, 
§  1448,  p.  857. 

None  Against  Trustee  for  Excess  of  Off-set,  §  1187,  p.  694. 


2176  GENERAL  INDEX. 

JUDGMENT— Continued. 

Xone    in    bankruptcy    proceedings    Against    Claimant,    where    estate's    claim 

exceeds  claimant's,  §  1188,  p.  694. 
None  in  bankruptcy  proceedings  against   Claimant  for  Excess  of   Security, 

§  764,  p.  454. 

Not  such  merger  as  prevents  inquiry  into  original  character  of  obligation, 

§  2749,  p.  1618;  §  2790,  p.  1633. 

Even  though   tort  waived   and  judgment  be   on   quasi   contract,   §   27.50, 
p.   1618. 

Xot  Preference,  unless  creates   lien,  §  1282,  p.   757. 

Xon-Dischargeable,   nevertheless    lien   of,   within   four   months,   nullified   by 
bankruptcy,  §   1433,  p.  848. 
■     Not  requisite  to  nondischargeabilit}',  where  property  obtained  by  false  pre- 
tenses, §  2748,  p.  1617. 

Original   debt,   not  the  judgment  to   be  proved,   where   provable   claim   re- 
duced to  judgment  after  bankruptcy  and  before  discharge,  §  698,  p.  422. 

Priority,  judgment  not  entitled  to  priority   over   other  claims,   on   Distribu- 
tion, §  21.37,  p.  1315. 

"Procuring  or  Suffering"'  of,  as  Preference,  §  1335,  p.  782. 

Proof  of  claim  must  state  whether  judgment  taken,  §  600,  p.  357. 

Proof  of  claim  necessary  for  judgment,  §  676,  p.  412  n. 

Provability  of 

"Absolutely  Owing"  is  provable,  §  670,  p.  406;  §  676,  p.  412. 
Absolutel}'    owing    at    time    of    filing    bankruptcy    petition    requisite    to 

provability,  §  670,  p.  406;  §  678,  p.  412. 
Alimony    not  provable,  §  683,  p.  414. 
Not  Dischargeable,  yet  provable  when,  §  681,  p.  413. 
For  Money,  else  not  provable,  §  677,  p.  412. 
For  Penal  Fine,  not  provable,  §  683,  p.  414. 
Personal  Injury,  or  other  Tort,  Judgment  for  is  provable,  though  Tort 

itself  not,  §  680,  p.  413. 
Rendered  within  Four  IMonths,  yet  provable,  §  682,  p.  413. 
Rendered  on  provable  debt  After  Bankruptcy  but  before  discharge,  the  debt 

provable,  §  695,  p.  420. 
Taking  of  does  not  destroy  priority  of  distribution,  §  2135,  p.   1317;  §  2182, 
p.  1342. 

In  Rem 

Xot  prevented  by  discharge,  §  2709,  p.   1G04. 
Remains  Valid,  though  lien  itself  nullified,  §  778,  p.  460;  §  1449,  p.  858. 
Res  judicata  though  lien  nullified,  §  778,  p.  460. 
For  Support,  not  provable,  §  683,  p.  414. 
Of  State  Court  as  to'  Exemptions  in  same  fund  Res  Adjudicata,  §  1087,  p. 

615. 
Vacating  of,  none  to  permit  Interposition   of  Discharge,  §  2708,  p.   1604. 

Warrants  of  attorney  to  confess 

As  Continuing  consents,  §  1336,  p.  783. 

Debtor's  Voluntary  action  not  implied  in  cases  of  preferences  by 
way  of  judgments,  §   1337,  p.   783. 

JUDGMENT  AT  LA'W 

Not  Appealable,  §  2921,  p.  1711. 


GENKRAI,  INDEX.  2177 

JUDGMENT  IN  PERSONAM 

If  Discharge  not  Interposed,  §  2706,  p.   1603. 

If  Discharge  refused,  §  2705,  p.  IBOS. 

None  for  costs  against  parties  in  summary  proceedings  not  personally  ap- 
pearing, §   2009,  p.   1246. 

Mere  Possession  of  Res  and  service  of  notice  does  not  warrant,  §  1892,  p. 
1183. 

Stay  protects  bankrupt  only  from,  §  2709,  p.  1604. 

Not  Warranted  by  mere  Possession  of  Res,  and  Service  of  Notice,  §  1892, 
p.    1183. 

"JUDGMENT  FOR  TORT" 

Property  not  exempt  as  to,  §  1035,  p.  587. 

JUDGMENT  LIEN 

Fraudulent  transfer  suit  within  four  months,  in  aid  of  lien  or  levy  obtained 

before  four  months,  not  nullified  by  bankruptcy,  §  1592,  p.  963. 
Marshaling  of,  §   1885,  p.  1180  n. 

JUDICIAL  COGNIZANCE 

Of  court  records,  §  2654,  p.  157G. 

JUDICIAL   DISCRETION 

Reasonableness   of   Attorneys'   fees   left   to,    §   2046,   p.    1267. 

JUDICIAL  SALE 

Trustee's   sale  is  a,  §  1950,  p.   1215. 

JURISDICTION 

To  Administer  bankrupt  estates 

Unimpaired,   though   Discharge   Barred   Because  of   Previous   discharge 
within    six   years,    §   2579,   p.    1548. 
To  Allo.vv,  Disallow  and  Reconsider  Claims,  §  811,  p.  473. 
Of    Bankruptcy    court 

Over  Attorney's  lien  on  client's   dividend,   §  2228,  p.   1364. 

To   Reopen   Estate,   §   2300,   p.   1401. 

To  determine  ownership  of  property  in  .custody,  not  divested  by  con- 
firmation  of  composition,   §  2398,  p.   1449. 

To    set    aside    confirmation    of    composition    for    irregularity,    §    2399, 
p.  1451. 

May  stay  suits,   §   2700,   p.   1601. 

None   to    entertain    Independent    Plenary   Action   by   Creditors,   §    1716, 
p.   1058. 

None  to  entertain   Plenary  Action   by  Trustee  to   Recover   Debt  owing 
bankrupt,   §   1694,   p.   1043. 

None  to  entertain  Stockholders'  Liability  Suit,  §  977,  p.  548. 

None   of   Equitable   Action   to   Subject   Dividends    in   trustee's   hands,   § 
2226.  p.   1363. 

Over   Plenary    action    by    trustee    against    adverse    claimant,    §    1688,    p. 
1039.     Sec  "Plenary  Actions  by  Trustee  against  Adverse  Claimants." 

To  punish  for  Contempt  for  Interference  with  custody,  §  1922,  p.   1196. 

To   make   Summary    Order    on    Bankrupts   and    Others,    not   new   func- 
tion,  §    1833,   p.    1127. 
Change   of   Debtor's   Class   after   commission   of   Act,   but   before   filing   pe- 
tition, §  95,  p.  91. 

2  Rem  B-  62 


2178  GENERAI,  INDEX. 

JURISDICTION— Continued. 

Corporation    ceasing    to    do    business    after    commission    of    act    but    before 

petition   filed,   §  97,  p.  93. 
Over  Corporations 

More  Limited  under  Act  of  1898  than  Act  of  1867,  §  81,  p.  80. 
Deatli  or  insanity  after  commission  of  act  but  before  filing  of  petition,  § 

9G,  p.  92. 
Death  or  insanity  after  filing  of  petition,  no  abatement,   §  98,  p.  94. 
See,  also,  "Death." 
See,  also,  "Insanity." 
To  discharge 

None   on   petition   filed  after   eighteen   months,   §   2427,   p.    146(3. 
Dismissal   of  petition   for   want   of,   §   414,   p.   2G8. 
Dissolution    of    Corporation    after    commission    of    Act    but    before    petition 

filed,  §  97,  p.  93. 
As    Established    by    the    First    English    Bankruptcy    Act,    34    Henry    VIII, 

Introd.  (g),  p.  6. 
Existence    of   Jurisdictional    Facts    need    not    appear    on    face    of    record,    § 

30,  p.  51  n. 
Facts  showing,  to  be  alleged  in  involuntary  petition 

Corporation  to   be   brought   within   class    subject   to   bankruptc}^,   §    242, 

p.  186. 
Natural  persons  to  be  shown  not  within  excepted  classes,  §  243,  p.  IgG. 
Residence,  domicile,   etc.,  to  be  shown,   §  241,  p.   186. 
To  Grant  Discharge,  facts  showing  must  be  pleaded,  §  2683,  p.   1595. 
Lack   of,   affirmatively   appearing  on   face   of  record,    decree   void,    §   30,   p. 

51  n. 
If  Lacking,  Voluntary  Petition  may  be  Dismissed  by  court,  §  196,  p.  160. 
None  in  bankruptcy  court   to   render  Judgment  in   Personam  for    Debt,   § 

1796,  p.   1089. 
Jurisdiction  where  mechanics  and  subcontractors  have  lien  on  fund  due  from 

owner,   §   1165,   p.   685. 
None    in    Bankruptcy   Avhere    debtor    Insane    or    Dead    at    time    of    petition 

filed,  §  96,  p.  93.  , 

Not  to  be  _Conf  erred  by  Consent,  where  bankrupt  not  in  class,  §  30,  p.  46. 
Over  "Adverse  claimants,"   see   "Adverse   Claimants." 
Referee   has   none  to   entertain  plenary  action,   §   545,   p.   333. 
To  Reviev/  Referee's  order,  §  2839,  p.   1658. 
To   Revoke   Discharge,   §  2806,  p.   1644. 
To  Vacate  Adjudication,  §  429,  p.  275. 

Voluntary  Bankruptcy,  Jurisdiction  in  over  Natural  Persons,  §  37,  p.  55. 
Voluntary  Bankruptcy,  no  jurisdiction  in  over  Corporations,  §  37,  p.  55. 
Voluntary   petition    Dismissed   for   want   of,    §   414,   p.    268. 

JURISDICTIONAL  LIMITATIONS 

Affect   Jurisdiction    over   Subject    Matter,   §   30,    p.    46. 

Limitations  as   to   Residence,   Occupation,   etc..  Jurisdictional,   §   30,  p.   46. 

JURISDICTIONAL  QUESTIONS 

Appealable  to  Supreme  Court,  when,  §  3019,  p.   1746;   §  3021,  p.  1747. 
"Question    of   Jurisdiction,"    meaning   of    in    appeals    to    Supreme    Court,    § 

3021,  p.   1747. 
On    review,    §    3003,    p.    1739;    §    3004,   p.    1739. 


GENERAL  INDEX.  2179 

JURISDICTION  BY   CONSENT 

Over    adverse    claimants,    see    "Adverse    Claimants — Jurisdiction    of    Bank- 
ruptcy Court  Over,  by  Consent." 

JURISDICTION    OF  COURTS 

Adjudication  on  Default,  jurisdiction  to  make,  §  424,  p.  273. 

Bankruptcy  Courts  not  Inferior,  §  29,  p.  45. 

Bankruptcy   Court's   Jurisdiction   over    Exempt   Property,   see   "Exemptions, 

Jurisdiction  over." 
Of  Bankruptcy  Courts,  see  "Conflict  of  Jurisdiction;"  "Jurisdiction." 
*  Examination    of   bankrupt    before    adjudication,    jurisdiction    as    to,    §    1543, 

p.  919. 
In   General,   §   27,   p.   45. 
Limited,  §  29,  p.  45. 

See  "Restraining  Orders  and  Injunctions." 
State  Court's,  in  bankruptcy  matters,  §   1687,  p.   1038. 
Of  State   Courts,   see   "Conflict   of  Jurisdiction." 
Territorial   Jurisdiction,    §   29,   p.    45. 

U.  S.  Circuit  Court's  jurisdiction  in  bankruptcy  matters,  §  1686,  p.  1037. 
See    "Referee   in    Bankruptcy." 

JURY 

Confined  to  two  Issues  where  demandable,  §  408,  p.  265. 

Not   demandable   by   Intervening   Creditor,   §   409,   p.    265. 

Demand  for,  §  411,  p.  266. 

Not  Demanded,  reference  to  Master,  §  412,  p.  266. 

Demandable   by  virtue   of   statute   not   constitution,    §   407,   p.   265. 

Nonjoining  partner  entitled  to.   on   issue   of  insolvency,   §   74,  p.   77. 

Rules   of  Equity  Applied,  though  jury  be  invoked,  §  20,  p.  37. 

Submitting  issue  of  fact  to,   §  404,  p.  263. 

Trial  by 

An   Absolute    Right   on    Issues   of   Insolvency  and    commission   of   act, 

§  406,  p.  264. 
To  be  conducted  according  to  Common  Law,  §  410,  p.  266. 
Not  on   Re-Examination  of  Claims,  nor  on  Objections  thereto,   §   849, 

p.   489. 
Not   Violated   by   Summary   Orders    on   bankrupts   and   others,    §    1834, 

p.   1128. 
Verdict  of,  in  general.  Advisor}^,  §  405,  p.  263. 

JURY  TRIAL 

On   petition   for   adjudication,   whether   appealable,   §   2894,   p.    1699;    §   2894, 
p.   1700   n. 

JUSTICE   OF  THE  PEACE. 

Disregarding    bankruptcy,    §    2700,    p.    1601. 

KEEPER 

See   "Custodian." 

KINDS   OF   PROPERTY   PASSING    TO   TRUSTEE 

See   "Propert}'   Passing  and   Not   Passing  to  Trustee — Kinds   of   Property." 


2180  GENERAL  INDEX. 

"KNOWINGLY  AND  FRAUDULENTLY" 

Concealment    of   assets    must   be    done,    §    2488,    p.    1503. 

False  oath  must  be  perpetrated,  §  2535,  p.   1526. 

Indictment   for  false   oath  to  aver,   §  2322,   p.   1412. 

To  be   alleged,  where  act   charged  is   an   "offense"   §   2596,   p.    1553. 

KNOWLEDGE 

As  curing  defective  scheduling,  §  2777,  p.  1627. 

LABOR 

Performance    of    in    payment    of    debt,    not    preference,    §    1280,    p.    757,    §^ 

1333,    p.    781. 
Performance    of    not   a    "transfer,"'    §    1333,    p.    781. 

•'LABORER" 

See    "Workmen,    Clerks    and    Servants." 

State  priorities  to,  where  different  from  bankruptcy  priorities,  §  2195,  p. 
1347. 

LACHES 

Appeal  from  Referee's  ruling,  right  to,  barred  by,  §  2851,  p.  1664. 

Defense  of  Lack  of  Jurisdiction  as  barred  by,  §  449,  p.  296. 

Dismissal   of  Petition  for   Review  for,   §  2994,  p.   1736. 

Liens  by  Legal  Proceedings  nullified  by  bankruptcy,  trustee  not  charge- 
able  with    laches,    §    1468,    p.    873. 

"Nunc  pro  tunc"  extension  of  Time  for  Filing  Discharge  petition,  to 
cover,   §  2426,  p.   1465. 

Omitted  Parties  on  Appeal  or  Review,  right  to  make  barred  by,  §  2837, 
p.    1657. 

Other  than  Trustee  Appealing,  laches  barring  right  to  object  to,  §  2832, 
p.    1655. 

Reconsideration   of   claim   refused   for   trustee's,   §   842,   p.   484. 

Revocation  of  Discharge  barred  by,  §  2815,  p.  1647. 

Right  to   Reopen  Estate    barred  by,  §  2306,  p.  1403. 

"Tracing  Trust  Funds"  barred  by,  §  1884,  p.  1176  n. 

Vacating  of  Adjudication   barred   by,   §   436,   p.   278. 

LANDLORD'S   LIEN 

Not   Impaired   by   the   bankruptcy   act,    §    1160,   p.   683. 

Jurisdiction    to    marshal    priority    of,    §    1885,    p.    1179    n. 

Landlord's    priorities,    on    distribution,    §    2204,    p.    1356. 

Re-entry   clause   does   not   give,   on   proceeds   of  leasehold,   §   992,   p.   552   n. 

Trustee  of  bankrupt  tenant  cannot  perfect,  §  992,  p.  553  n;  §  2201,  p.   1353. 

LANDLORD  AND  TENANT 

Docs  Bankruptcy  Sever  Relations  of,  §  653,  p.  393;  §  2730,  p.  1610. 
Forcible    Detainer   suits   not   maintainable   where   bankruptcy   court   in    pos- 
■  session,   §   1799,  p.   1098. 
Judgment   against   landlord   for   bite   by   tenant's    dog,    whether    discharged, 

§   2754,   p.    1620. 
Landlord's   Levy   not   nullified   I)y   bankruptcy,   §   1589,   p.   962. 
See  "Leasehold." 
See  "Rent." 

"Same   Class,"   whether   Landlord  in,  §   1387,   p.   818   n. 
Tenant's   bankruptcy  not   ipso  facto   termination   of  lease,   §   981,   p.   548. 


GENERAL  INDEX.  2181 

LAUNDRY    CORPORATIONS 

See   "Involuntary   Bankruptcy." 

LEASEHOLD 

Accept  Lease  as  Assets,  trustee  not  bound  to,  §  982,  p.  548. 
Bankrupt  as  landlord,  whether  leasehold  passes,  §  979,  p.  548. 
Bankrupt   as    tenant,   whether    leasehold   passes,    §    980,    p.    548. 

Forfeiture   of 

Assigning   or    Subletting,    covenants    of   forfeiture    for,    not   violated   by 

bankruptcy,    §    964,    p.    539;    §   987,    p.    550. 
Bankruptcy  operates  a,  if  specifically   so  provided,   §   989,  p.   552. 
General   Assignment   preceding   bankruptcy,   efifect   of   on   right   to    for- 
feit  leasehold   for   assignment,   §   987,   p.   551. 
If  Specific   Method  of,  stipulated,  such  method  alone   effective,   §   990, 

p.    552. 
Leasehold    Liberated    from    Forfeiture    clause,    §    988,    p.    551. 
Previous   Forfeiture  not  nullified  by  tenant's  bankruptcy,   §  986,  p.   550. 
Trustee  takes,  Subject  to  Forfeiture  Clauses,  §  1151,  p.  680. 
Where    Future    Rent   already   paid,    leasehold    passes,    §   991,   p.    552. 
Landlord   Forfeiting  lease  waives   claim  for  unexpired  term,   §   665,  p.   404. 
Landlord  Accepting  Surrender  of  lease   waives   claim   for  unexpired   term, 

§    665,   p.   404. 
Occupied  by  Receiver  or  Trustee    Free   of  Rent  for  any  period   for  which 

landlord    holds    provable    claim,    §    992,    p.    552. 
Passes    to    trustee,    though    providing    for    forfeiture    on    "assignment,"    § 

964,   p.    539;    §    987,   p.   550. 
Perfecting  of  landlord's   lien,   none   by   trustee    of   bankrupt   tenant,   §   992, 

p.   553   n. 
Mere  Re-entry  gives  no  lien  for  future  rent,  on  sale  of,  §  664,  p.  40J 
Rents   of   Mortgaged   Premises,   uncollected   or  accruing  after   bankrrptcy, 

§  993,  p.  553. 
Special   Deposit   by   tenant   with   landlord   to   secure   rent,   how   to   be    used 

as   offset,   on   bankruptcy,   §   1186,   p.   694   n. 
Tenant's  bankruptcy  not  Ipso  Facto  termination  of  lease,  §  981,  p.  548 
Time  to  Accept  or  Reject,  trustee  entitled  to,  §  983,  p.  549. 
Trustee's  right  to  Occupy  Premises  for   Reasonable  period,   §   984,   p    549. 
Whether  trustee  bound  to  pay  Rent  Stipulated  or  only  for   Use  and   Oc- 
cupation,   §   985,   p.    549. 
Trustee   takes   title,   subject  to   forfeiture   clauses   of,   §   1151,  p.   680. 

LEASES 

Actual   but   Voidable   Sales,   Disguised   as,   §    1228,   p.   726. 

LEAVE  TO   APPEAL 

Application   for,    §   2960,    p.    1725. 

LEGAL  CONCLUSIONS 

"Duly   Made"   sufficient  in   pleading   discharge   when,   §   2683,   p.   1595. 
Not  to  be   Pleaded,  §  252,  p.   191;   §   1767,  p.   1075;   §  2607,   p.   1558. 

LENDING  "WRITTEN  INSTRUMENT"  TO  SURETY  TO  MAKE  PROOF, 
§  612,  p.  363. 


2182  GENDRAI,  INDEX. 

"LESS   THAN   TWELVE"    CREDITORS 

Bankrupt  to  Supply  Sworn  List  of  Creditors,  if  he  claims  averment  of  less 

erroneous,  §  208,  p.  171. 
Erroneous  averment  of,   §  207,  p.   170. 
Notice,  mode  of  Service  of,  §  209,  p.  171. 

LEVY 

See  "Bankruptcy,  Whether  Operates  as  Equitable  Levy." 

See  "Equitable   Levy." 

See  "Title  of  Trustee,  as   Successor  to   Creditors'  Title." 

LEVYING  ON  EXEMPT  PROPERTY 

Before  and  after  discharge,  §   1102,  p.  627,  §  1107,  p.  633. 
By  Attachment   or   Execution,   §   1107,   p.   633. 
By  Direct   Execution  after   exempt  property  set  apart,   §  1108,  p.   633. 

LEVYING   ON   PROPERTY   AFTER  BANKRUPTCY 

To  "Arm  with  Process,"  §  1239,  p.  735. 

LIABILITIES 

Duty  of  bankrupt  to  file   list   of  creditors,   §   477,   p.   308. 

LIABILITIES    FOR    OBTAINING    PROPERTY    UNDER    FALSE    PRE- 
TENSES 

Excepted  from  discharge,  §  2746,  p.  1616;  §  2747,  p.  1616;  §  2748,  p.  1617; 
§  2749,  p.  1618;  §  2750,  p.  1618;  §  2751,  p.  1619;  §  2752,  p.  1619;  §  2753, 
p.  1619. 

LIABILITIES   FOR  WILLFUL  AND  MALICIOUS  INJURIES  TO  PER- 
SON   OR   PROPERTY 

Excepted  from  discharge,  §  2754,  p.  1619. 

LIBEL 

Judgment  for  whether  Discharged,   §   2754,  p.   1620. 

LICENSE 

Dependent   on  local   law  as   to  title  passing,   §   967,   p.   541. 

Liquor   license    on    Marshaling   of    Liens,    §    1885,    p.    1179    n. 

Pass  to  Trustee,  when,  §  967,  p.  540. 

Subject  to   Contingency  of  Approval   of  Public  Authorities  yet  may  pass, 

§   968,   p.    542. 
Whether  a  "Tax,"  entitled  to  priority  on  distribution,  §  2154,  p.  1330. 
Transferable  by  Peculiar  and  Unusual  means,  yet  maj'-  pass,  §  969,  p.  542. 

LIEN 

Agreement  for,    Not   Effective    Until   within   Four    ^ilonths,   §   1370,   p.   795. 

Not  Appealable  under  §  25  (a),  §  2900,  p.  1702. 

Unless  incident  to  disputed  debt,  §  2901,  p.  1702. 
"Banker's,"    §    1329,    p.    779. 
Of  Assignee  and  Receiver  for  compensation  and  expenses,  see  "Assignments 

and    Receiverships    Superseded   by    Bankruptcy."      Also,    see    "Conflict    of 

Jurisdiction — Second  Exception." 
Enforcement    of,    not    barred    by    Discharge    of    debtor,    §    2668,    p.    1587;    § 

2673,    p.    1589. 


GENERAL.  IXDE'X.  2183 

LIEN — Continued. 

See  "Equitable  Liens." 

On  Exempt  Property  Paid  Off  on  Eve  of  Bankruptcj^  no  Subrogation  of 

trustee   to,   §  2283,  p.   1396. 
For   Future   Rent   not   Released   by  Tenant's   Bankruptcy,   §   603,   p.   404. 
Landlord's,   see   "Landlord's   Lien." 
Of  partnership  creditors  on  firm  assets 

In    individual    bankruptcy   of   partner,    §    2254,    p.    1374;    §    2271,    p.    1390. 
Priority  of 

Appealable  as  "controversies,"  §  2923,  p.  1712. 

Whether    questions    in,    are    "Proceedings    in    Bankruptcy    Proper"    or 
"Controversies,"   §   2869,    p.    1683;    §   2870,    p.    1684;    §   2871,   p.    1684,    § 
2875,  p.   1687;   §  2877,  p.    1689;    §  2878,  p.   1689. 
Mere  Re-entry  Clause  gives  no  lien  for  future  rent,  §  664,  p.  404. 
Redeeming  from,  §  937,  p.  525;  §  1826,  p.  1121. 
Selling  subject  to,   §   938,  p.   525. 
Selling  free   from,   §   939,   p.   525;   §   1965,  p.   1223. 

Selling  free  from  some,  subject  to  others,  §  940,  p.  525;  §  1969,  p.  1225. 
Selling   free    from,    see    "Sales    in    Bankruptcy — Selling    Free    from    Liens." 
Tender  of  Amount  due,  whether  gives  summary  jurisdiction  to  order  sur- 
render, §  1826,  p.  1121. 
Lien,  itself  not  a  preference  not  to  be  denied  validity,  in  marshaling,  because 
preference  on  distinct  transaction  not  surrendered,  §  1428,  p.  846;  §  1899, 
p.  1187;  §  773,  p.  459. 

LIENHOLDER 

"Adverse    Claimant,"    when,    §    1679,    p.    1034. 

Consent  of,  not  necessary   on   marshaling  of  liens,  §   1886,  p.   1181. 

Consent  of,  not  necessary  for  sale  free  from  lien,  §  1880,  p.  1181;  §  1966, 
p.    1225;    §    1979,   p.    1228. 

Desiring  to  Bid,  may  object  to  sale  free  from  liens,  before  validity  deter- 
mined, §  1980,  p.  1229. 

Entitled  to  notice  of  sale  free  and  clear  from  liens,   §  1980,  p.  1229. 

Liens  by  legal  proceedings  within  four  months,  void  only  as  to  Trustee, 
not  as   to  other  lienholders,  §   1436,  p.   849. 

Petition  to  Redeem,  whether  gives  Summary  Jurisdiction,  on  Tender,  § 
1826,    p.    1121. 

In  Possession,  Sale  of  Securities  by,  not  enjoined,  §  1913,  p.  1192. 

In  Possession,  after  satisfaction  of  lien,  subject  to  summary  jurisdiction, 
§    1825,    p.    1121. 

As  Purchaser,  may  Apply  Lien  on  Price,  §  1997,  p.  1236. 

Rights  of,  not  to  be  prejudiced  by  Compromise  of  Controversies,  §  931, 
p.   524. 

LIENS  BY  LEGAL  PROCEEDINGS 

After   adjudication   none   obtainable,   §   1125,   p.   642. 
Artisans'  liens  are  not,  §  1158,  p.  683. 

Between  Filing  of  Petition  and   Adjudication  whether  obtainable  on  Bank- 
rupt's   Property,   §   1126,  p.   642. 
Landlord's    liens    are   not,    §    1160,   p.    683. 
Liverymen's  liens  are  not,  §  1157,  p.  683. 
Mechanics'  liens,   etc.,  are  not,  §   1155,  p.   681. 
Subcontractors'  lierrs  are  not,  §  1156,  p.  682. 
Supplies,  statutory  lien  for,  §  J.159,  p.  683. 


2184  GENERAL  INDEX. 

LIENS    BY    LEGAL    PROCEEDINGS    NULLIFIED    BY    BANKRUPTCY 

Is    second   branch    of   trustees'    peculiar    title    and    rights    conferred    by    the 

bankruptcy  Act,  §  1429,  p.  846. 
BsLsis   of   Nullification,   §   1462,   p.    868. 

Clause  "f"  of  §  67  Supersedes  Clause  "c"  where  in  Conflict,  §  1463,  p.  869. 
Clause  "f"  applies   to  Voluntary  bankruptcies  as   well   as   to   Involuntary,   § 

1464,    p.    871. 
Creditor  may   Prove   Claim  where  lien  nullified,   also   Costs,   §   1487,   p.   885. 
Creditor    whose    lien    nullified    under    no    duty    to    keep    officer    in    posses- 
sion,   §    1488,    p.    885. 
Nevertheless  Creditors  not  to  sit  by,  else  estopped,  §  1468,  p.  873. 
Coming  into   court   where  lien   obtained   and  asking  for   Surrender,   §   1471, 

p.    874. 
Comity  requires  resort  first  to  court  wherein  lien  obtained,  §  1472,  p.  874. 
Custodians  and  Court  officers  in  possession  under,  not  adverse   claimants, 

but  subject  to  summary  jurisdiction,  §   1827,  p.  1122. 
Custody  of  State  Court  Superseded,  §  1600,  p.  965;  §  1827,  p.  1122. 
Distinguished    from    Barring   of   debt   by   bankrupt's    Discharge,    §    1435,    p. 

848. 
Injunction,  §  1473,  p.  877. 
Invalidating   of   Lien    Relates    Back   to   inception   of   lien,    §    1467,   p.    872;    § 

1600,   p.  966. 
Lien  Absolutely  Void  and  falls  of  itself,  §  1468,  p.  873. 
Lien  for  Costs  falls  with  the  rest,  §  1485,  p.  884. 

Only  Liens  Obtained  Before  Filing  of  Petition  are  nullified,  §  1466,  p.  872. 
Nullification  of  liens  by  legal  proceedings,  §  1429,  p.  846;  §  1600,  p.  965. 
Obligations  of  Contract  not  impaired  by,  §  1465,  p.  871. 
Order  of  Surrender,  §  1474,  p.  877;  §  1601,  p.  965. 

Preservation  of  lien  for  benefit  of  estate,  §  1489,  p.  885. 

Costs  of  Court   Remain   Lien  in   cases  of  preservation,  §  1490,  p.  888. 
Lien  not  preserved,  is  void  as  to  other  lienholders   on  same  property, 

§   1492,  p.  890. 
Order  of  Preservation  and  Subrogation  requisite,  §  1489,  p.  888;  §  1491, 

p.   889. 
Subrogation   of  Trustee   to   creditors'   rights,   §   1639,   p.   1010. 
Proceeds  already  paid  over  to  Execution   Creditor  latter  becomes  Adverse 

party  not  to  be  Summarily  dealt  with,  §  1477,  p.  878. 
Proceeds  of  E.xecution  or  Attachment  Sale  in  Sherifif's  hands  pass  to  trustee, 

§   1479,   p.   881. 
Property  itself  may  be   Pursued   and   Recovered,   §   1480,  p.   882. 
Purchaser  has  Burden  of  Proof  of  bona  fides,  §  1482,  p.  883. 
Rule   adopting   State   priorities,   not   to   override   §   G7   "f"   annulling   "legal" 

liens,  §  2198,  p.  1351. 
Recovery   of  proceeds   from   Execution   Creditor    only   to   be   had   on   other 

grounds  than  §  67  (f),  §  1478,  p.  880. 
Requisite  to  bring  situation  to  notice  of  court  or  officer  seeking  to  enforce 

lien,  §  1470,  p.  874. 
Replevin,  trustee  may,  §  1475,  p.  878. 
Not  Requisite  that  Lien  create  preference,  §  1462,  p.  869. 

Requisites  to  Nullification — First — Must  be  lien  by  legal  Proceedings,  §  1437, 
p.    849. 

Liens  from  all  courts  equally  nullified,  §  1438,  p.  850. 


GENERAL  IXDEX.  2185 

LIENS   BY   LEGAL   PROCEEDINGS   NULLIFIED   BY   BANKRUPTCY— 

Continued. 

All  kinds  of  liens  by  legal  proceedings  nullified,  §  1439,  p.  850. 

Including  lien  acquired  by  creditors  by  general  assignments,  §  1440, 

p.  851. 
Including  statutory  suits  in  behalf  of  all  creditors  for  setting  aside 
fraudulent   or   preferential    transfers   prohibited    by    State   law,    § 
1441,  p.  851. 
"Legal    proceedings"    must    have    operated    to    create    lien,    §    1442, 

p.  853.  * 

Unfounded  replevin  actions,  §  1443,  p.  853. 
Legal  proceedings  not  themselves   creating  liens  but   merely  enforcing 

pre-existing  rights  or  liens,  ndt  affected,  §  1444,  p.  854. 
Lien  valid  in  part,  and  void  as  to  balance,  §  1445,  p.  854. 
Receivership,   etc.,   may   operate   to   create   '"lien   by   legal   proceedings," 
§  1446,  p.  855. 

Requisites — Second — Must   have  been   obtained  upon  property  accruing  to 
estate,  §   1447,  p.  855. 

"Judgment"'  means  judgment  lien,  not  judgment  itself,   §   1448,  p.   857. 
Judgments   whose   liens   annulled   yet   valid   for   other   purposes,   as   res 
adjudicata,  etc.,  §  1449,  p.  858. 

Requisites — Third — Must   have   been   obtained  within  four  months,   §   1451, 
p.  860;  §  1457,  p.  965. 

Suit  started  before  but  lien   obtained   within   four   months,  lien   falls,   § 

1457,  p.   865. 

Levy   within    four    months    on    judgment    rendered    before,    annulled,    § 

1458,  p.  865. 

State  law  controls  as  to  nature  of  lien,  time  takes  effect,  abandonment, 
etc.,    §    1459,    p.    865. 

Whether  continued  possession  under  writ  of  general  execution,  obtained 
before  four  months,  superseded,  §  1582,  p.  954  n. 

Attachment  obtained  prior  to  four  months,  not  abated,  §  1588,  p.  962. 

Fraudulent  Conveyance  suit  instituted  before  four  months,  not  abated, 
§  1591,  p.  963. 

Fraudulent  Conveyance  suit  within  four  months  in  aid  of  levy  made 
before  four  months,  not  abated,  §  1592,  p.  963. 

Creditor's  Bill  instituted  before  four  months  not  abated,  §  1593,  p. 
963. 

Partnership  Dissolution  suit  instituted  before  four  months  not  dis- 
turbed,  §    1593,   p.   963. 

Assignments  and  Receiverships  created  before  four  months,  not  af- 
fected,  §    1594,   p.    964. 

No  Injunction  where  lien  not  nullified,   §   1909,  p.   1191. 

If  obtained  after  filing  of  petition,  not  nullified  by  §  67  "f" — though 
perhaps  otherwise  void,   §   1452,   p.   861. 

Whether  lien  obtainable  by  legal  proceedings  after  filing  bankruptcy 
petition,  §   1453,  p.  862. 

Computation  of  time,   §   1454,  p.   863. 

Attachment  or  other  lien  effected  before  four  months,  but  judgment 
not  rendered   until   within,   lien   good,   §    1455,   p.   863;   §   1588,  p.   962. 

Where  State  court  attempts  further  distribution  than  mere  aid  to  valid 
lien  already  existing,  §  1456,  p.  864. 

Requisites — Fourth — Insolvency,   §   1460,  p.   866. 


2186  GEXERAI.  INDEX. 

LIENS   BY   LEGAL  PROCEEDINGS    NULLIFIED   BY   BANKRUPTCY--^ 

Continued. 
Requisites — Fifth — Debtor     must     Eventually     be     Adjudged     bankrupt,     § 

1461,   p.   867;   §   1609,  p.   978   n. 
Sheriff   paying    over    proceeds    before    filing    of    petition    protected,    §    1483, 

p.   883. 
Sheriff  paying  over  proceeds  after  petition   filed,  whether  liable,   §   1484,   p. 

883. 
Sheriff  no  right  to  Retain  Creditor's  Costs,  nor  to  retain  property  till  costs 

paid,   §  1486,  p.   885. 
Suing  State  Court's  Officer  for  ]\Ioney  Had  and  Received,  §  1476,  p.  878. 
Subrogation  of  Trustee   where  lien  preserved  for  benefit  of  estate,   §   1639, 

p.   1010. 
Vested  Rights  not  divested  thereby,  §  1465,  p.  871. 

Void,   irrespective   of   constituting  Acts   of   Bankruptcy,   §   1430,   p.   848. 
Void,  irrespective  of  Constituting  Preferences,  §  1431,  p.  848;  §  1462,  p.  869. 
Void,  irrespective  of  Consent  or  Permission  of  Debtor,  §  1432,  p.  848. 
Void,  though  Judgment  not  Dischargeable,   §   1433,  p.   848. 
Void,  irrespective  of  Creditor's   Knowledge  of  Debtor's  Insolvency,  §   1434, 

p.  848. 
Void,  however,  only  as   to  Trustee,   not   as   to   Other   Lienholders,   §   1436, 

p.    849. 
Allowability   of   claim   where   creditor    holds,    see   "Claims    Where    Creditor 

Holds  Lien  by  Legal  Proceedings." 
Custody  of  State  court  Preserved  in   Part  and  in  part  superseded,   §  1587, 

p.  962. 
On  Exempt  Propert}',  whether   nullified  by  bankruptcy,   §   1100,  p.   624. 
On  Individual  Propertj-  not  Nullified  by  Firm   Bankruptcy,  §  2265,  p.   13j6; 

§    2266,    p.    1386. 
On   Partnership   Propertj-   not   Nullified   by   Individual    Bankruptcy,   §   2267, 

p.    1386. 
On  Property  Claimable  as  Exempt  but  not  Claimed,  nullified  by  bankruptcy, 

§   1101,   p.   627. 

LIFE  INSURANCE  POLICIES  AS  ASSETS 

No  Actual  Value  in  at  date  of  adjudication  will  not  pass,  §  1012,  p.  562. 

Assigned  absolutely  to  third  person  do  not  pass,  §  1004,  p.  558. 

Assigned  as   Security,  bankrupt's  interest  passes  to  trustee,  §  1006,  p.  559. 

Bankrupt's  Interest  passes,  provided  it  have  actual  value,  §  1008,  p.  560. 

Bankrupt  required  to  Execute  Assignment  to  effect  transfer,  §  1009,  p.  561. 

Bankrupt  as  Beneficiary  on  Life  of  Another,  §  1018,  p.  568. 

Cash  Surrender  Value  and  Redemption  of  policy,  §  1014,  p.  564. 

Cash  Surrender  Value  not  expressly  provided  for  in  policy,  §  1016,  p.  566. 

Change  of  Beneficiary,  policies  containing  right  to  change  beneficiary  pass, 

§   1007,  p.   560. 
Death  of  Bankrupt  before  Redemption  accomplished,  §  1017,  p.  567. 
Endowment  Policies,  bankrupt's  interest  in,  passes  to  trustee,  §  1006,  p.  5"9. 
Exempt  by  State  law  do  not  pass,  §  1003,  p.  557. 
Interests   in,  what  pass  to  trustee,  §  1002,  p.  556. 
May  not  compel  third  party  interested  to  accept  paid-up  policy  nor  to  apply 

for  cash  surrender  value,  §  1010,  p.  562. 
Paj^able  Absolutely  to  third  person  do  not,  pass,  §  1004,  p.  558. 
Payable  to  Bankrupt,  his  Estate  or  Personal  representatives,  pass  to  trust''e, 

§   1005,   p.   558. 


ge;ner.\Iv  index.  2187 

LIFE  INSURANCE  POLICIES  AS  ASSETS— Continued. 

Payable   Conditionallj-,  the  conditional   interest  passes,   §   lOOG,  p.   559. 
Payable    Contingently    or    Partly    to    bankrupt's    estate,    the    contingent     )r 

partial  interest  passes,  §  1006,  p.  559. 
Pay  Premiums,  whether  trustee  to,  §  1013,  p.  563. 

Only  Policies  having  Cash  Surrender  Value  Redeemable,  §  1015,  p.  564 
Redemptich  of,  by  Paying  or  Securing  Cash  Surrender  Value,  §  1014,  p.  564. 
Cash   Surrender  Value  not   Expressly  provided   for,  what  are   rights  of 

redemption,  §  1016,  p.  566. 
Only  Policies  having  Cash  Surrender  Value  Redeemable,  §  1015,  p.  564. 
Tontine  Policies,  bankrupt's  interest  in  passes  to  trustee,  §  1006,  p.  559. 
Trustee  not  to  Wait  for  Maturity,  but  to  sell  interest  for  present  worth, 
§  1011,  p.   562. 

LIMITATION 

See  "Statute  of  Limitations." 

LIMITATION  OF  ACTIONS 

By  and  Against  Trustees,  §  1789,  p.  1083. 

Not  Barred  by  expiration  of  State  limitation  after  bankruptcy  and  before 

end  of  two  years,  §  1791,  p.   1083. 
Nondiscovery  of  Fraud  as  tolling  bar,  §  1793,  p.  1084. 

Reopening  of  estate  not  "suit"  within  limitation  of  §  11  (d),  §  2307,  p.  1403. 
State  Limitations  prevail,  §  1792,  p.  1083. 
No  suit  to  recover  property  after  Two  Years  from  Closing  of  Estate.  §  1790, 

p.   1083. 

LIMITATION  OF  YEAR  FOR  FILING  CLAIM 

See   "Year's   Limitation  for   Filing  Claims." 

LIQUIDATED  DAMAGES  STIPULATED  IN  CONTRACT,  §  708.  p.  420. 

"LIQUIDATION"  OF  CLAIMS 
By  litigation,  §  714,  p.  428. 

Stockholders'  Liability,   §  714,  p.  428. 

Maintaining"  Pending  Suit  in  Personam  to  effect,  §  1647,  p.  1013. 
See  "Unliquidated  Claims." 

LIQUOR  LICENSES 

See  "Licenses." 

LIST   OF   CREDITORS 

Sec  "Schedules." 

LITIGATION 

Liquidation  by,   §   714,   p.   428. 

Stockholder's   Liability,  §  714,  p.  428. 

LIVERYMEN'S  LIENS,  §  1157,  p.  683;  §  1885,  p.  1180  n. 

LIVERY  STABLE  CORPORATION 

See  "Involuntary   Bankruptcy." 

LIVE  STOCK  DEALER 

Exempt   from   Involuntary   Bankruptcj',   §  48,  p.   61. 


2188  GENERAI,  INDEX. 

LOAN 

^la.de  for  specific  purpose,  return  of  not  a  preference,  §  1286,  p.  758. 

LOCAL  LAW 

See  "State  Law." 

MAINTAINING    STATUS      QUO    FOR    FILING    BANKRUPTCY    PETI- 
TION, §  402,  p.  262. 

MAJORITY 

To  Act  at  Creditor'  IMeetings,  what  requisite,  §  581,  p.  350;  §  868,  p.  497. 
To  Accept  Composition,  what  requisite,  §  2361,  p.  1432. 

MALICIOUS  PROSECUTION 

For  wrongful  seizure  before  adjudication,  §  354,  p.  237. 

MALICIOUS  PROSECUTION  OF  BANKRUPTCY  PETITION,  §  24,  p.  39  n. 

MANDAMUS 

.Mandate  enforced  by,  §  3012,  p.  i743. 

MANIFEST  ERROR 

Judgment  on  facts  not  disturbed  except  for,  §  3009,  p.   1741. 
Referee's  order  and  finding  presumed  correct,  unless,  §  2861,  p.  1670. 

"MANUAL  'WORK  AND  LABOR" 

Property  not  exempt  as  to,  §  1035,  p.  587. 

MANUFACTURING  CORPORATIONS 

Subject  to  involuntary  bankruptcy,  §  90,  p.  86. 

Bridge   manufacturing   and    building   corporations,    when    subject    to    bank- 
ruptcy, §  90,  p.  86. 
Definition  of  Manufacturing,   §   84,  p.   83. 

Manufacturing  distinguished  from  Constructing,   §  84,  p.  83. 
Ore  Smelting  corporations  are,  §  90,  p.  86. 
Paper  making  corporations  are,   §  90,  p.   86. 
Quarrying  corporations,  when  are,  §  90,  p.  87. 
Shipbuilding  corporations  are,  §  90,  p.  86. 

MANUFACTURING   ESTABLISHMENTS 

Priorities  for  furnishing  supplies  and  materials  to,  §  2205,  p.  1357. 

MARITAL  RIGHT 

Property  belonging  to  bankrupt  by,  passes  to  trustee,  §  998,  p.  556. 

MARRIED  WOMEN 

Not  subject  to  Involuntary  Bankruptcy,  §  52,  p.  63. 

MARSHAL 

Actual  or  Constructive  Possession  by,  constitutes  "Custodia  Legis,"  §  1807, 

p.   1101. 
Compensation  and  Expenses  of  on  "Seizure,"  §  358,  p.  240;  §  2132,  p.  1310. 
Fees  of,  §  2129,  p.  1310. 
Fees  of  for  service  on  order  to  show  cause,  §  2131,  p.  1310. 


GENERA!,  INDEX.  2189 

MARSHAL— Continued. 

Way  require   Indemnity  in  advance,   §  2021,   p.   1257;   §  2130,   p.   1310. 

May  tile  Petition  to  Sell,  §  1941,  p.  1211. 

Possession  by,  gives  jurisdiction  to  bankruptcy  court,  §  1796,  p.  1089;  §  1807, 

p.   1101. 
Suits  in  Personam  Against,  for  Wrongful  Seizure  not  restrained,  §  1911,  p. 

1192. 

MARSHALING 

Of  partnership   and  firm  debts  and  assets,   see   "Distribution — In   Partner- 
ship  Bankruptcies." 

MARSHALING     LIENS     ON     PROPERTY     IN     CUSTODY     OF     BANK- 
RUPTCY COURT 

Consent   of    Lienholder   not   necessary,    §    1886,   p.    1181;    §    1966,   p.    1225;    § 

1979,   p.   1228. 
Incidental  Power  to  Compel  Execution  of  Papers  by  third  parties,  §   1887, 

p.  1181. 

Jurisdiction  to  marshal  liens,  §  1706,  p.  1053;  §  1885,  p.  1177. 
Building  Contracts,  §  1885,  p.  1178  n. 
Chattel  mortgages,  §  1885,  p.  1178  n. 
Compelling  resort  to  other  security,  §  1885,  p.  1179  n. 
Deed  given  by  way  of  security,  §   1885,  p.  1180  n. 
Judgments,  §  1885,  p.  1180  n. 
Landlord's  lien,  §  1885,  p.  1179  n. 
Liquor  license,  §  1885,  p.  1179  n. 
Liverymen's  lien,  §  1885,  p.  1180  n. 
Mechanics'   liens,   §   1885,  p.   1178   n. 
Mortgages  and  other  liens,  §  1885,  p.  1179  n. 
Rent    of    mortgaged    premises    accruing    after    adjudication,    §    1185,    p. 

1180  n. 
Subcontractors'  liens,  §  1885,  p.   1178  n. 
Notice  on  Nonresidents,  if  court  has  actual  possession,  §  1891,  p.  1183. 
Pleading  and  Practice,  §  1894,  p.  1184.     See  also,  "Pleading  and  Practice  in 

Marshaling  Liens." 
Mere  possession  of  res  and  service  of  notice  insufficient  to  render  judgment 

in  personam,  §  1892,  p.  1183. 
Not    "Proceedings    in    bankruptcy    proper"    but    "controversies,"    §    2878,    p. 

1689. 
Referee   has  jurisdiction,   §   531,   p.   330;   §    1888,   p.   1181. 
Reasonable  Notice  to  Lienors  or  other  parties  in  interest  requisite,  §  1889, 

p.   1182. 
Reviewable   by  petition  to  revise,   §  2937,  p.   1716. 
Rights   of   Priority  under   State   Statutes   as   related   to   marshaling  of   liens 

on  property,  §  1898,  p.  1186. 
Where  Rights  under  State  Statutes  Dependent  on  Resort  to  Special  rem- 
edies,  §   1897,  p.   1186. 
Whether  are  strictly  "Summary"  proceedings,   §   1895,   p.   1184. 
"Surrender  of  Preference"   on   Distinct  Transaction  not  to  be  required  as 
prerequisite  to  validity  of   Lien   which   itself  is   not  a   Preference,   §   1428, 
p.  846;  §  1899,  p.  1187. 
"Ten    days    notice    by    mail"    insufficient;    "Order    to    Show    Cause"    proper 
method,  §  1890,  p.  1183. 


2190  GENERAL  INDEX. 

MARSHALING  LIENS  ON  PROPERTY  IN  CUSTODY  OF  BANKRUPTCY 

COURT— Continued. 

Third   Parties  may  Intervene,   §   1893,  p.   1184. 
Validity,  what  Law  governs,  §  1S96,  p.  1184. 

Validity,  priority,  etc.,  of  liens,  appealable  as  "controversies,"  §  2923,  p. 
1712. 

MATERIALITY 

"False  oath"  must  have  been  mater-al,  §  2532,  p.  1526. 

"False  statement  in  writing"  must  have  been  material  to  bar  discharge, 
§   2560,   p.   1542. 

MATURING  FUTURE  INSTALLMENTS 

Bankruptc}-  operating  by  contract  to  mature  future-  installments,  §  675,  p. 
412. 

MAXIMS 

"Equality  is  equity,"  §  1462,  p.  868. 

"Filing  of  petition  a  caveat,  attachment  and  injunction,"   §  1215,  §  718. 

MEANING  AND  IDEA  OF  BANKRUPTCY  LAW 

See  "Nature  of  Bankruptcy  Act"  and  "History  of  Bankruptcy  Law." 

MEANING  OF  TERMS 

Commonly  accepted  and  popular  meaning  given  to  classes  of  Corporations 
subject  to  bankruptcy,  §  82,  p.  81. 

MECHANICS'  LIENS 

Consent  to  Payment  of  Fund  into  bankruptcy  court,  §  1164,  p.  685. 

Failure  to  Perfect  Lien  in  Statutory  form  invalidates,  §  1162,  p.  684. 

Are  not  "Liens  Obtained  by  Legal  Proceedings"  or  "Preferences,"  §  1155, 
p.  681. 

Marshaling  of,  §  1885,  p.  1178  n. 

Owner  Owing  on  Building  Contract,  subject  to  liens,  "adverse  claimant," 
§    1682,   p.   1035. 

Where  Perfecting  of  lien  Dependent  on  Legal  Proceedings,  bankruptcy 
may  dispense  with  same,  §  1163,  p.  685. 

Trustee  takes  title  subject  to,  §  1154,  p.  680. 

Valid  though  Aflfidavit  or  "Stop  Notice"  not  filed  till  after  bankruptcy  of 
owner,  §   1161,  p.  684;   §   1255,  p.   741. 

Without  Consent,  State  court  proper  Forum,  where  Contractor  or  Sub- 
contractor bankrupt,  §  1165,  p.  685;  §  1682,  p.  1035. 

MEETINGS   OF   CREDITORS 

First  meeting,  §  591,  p.  353;  §  592,  p.  354;  §  593,  p.  354. 

Appointment   of  trustee   at,   §   862,   p.   496. 

Bankrupt  may  be  examined  at,  §  593,  p.  354. 

Claims  to  be  allowed  at,  §  593,  p.  354. 

Place  of  holding,  §  592,  p.  354. 

Referee  or  Judge  to  preside,  §  593,  p.  354. 

Time  of  holding,  §  591,  p.  353. 
May  be  adjourned,  §  590,  p.  353. 

Assignee  of  a  large  number  of  creditors  to  be  counted  only  as  one  cred- 
itor, §  574,  p.  348  n. 
How  creditors  pass  upon  matters  at  meetings,  §  572,  p.  347. 
Only  "Creditors"  to  vote,  §  573,  p.   348. 


GENER-VIv  INDEX,  2191 

MEETINGS  OF  CREDITORS— Continued. 

Creditors  not  to  vote  whose  claims  not  Allowed,   §  575,  p.  318. 

Creditors    holding   voidable    preferences,    may    not    vote    until    surrender,    § 

578,   p.   349. 
Creditors  holding  Liens  by 'Legal  Proceedings,   Xullihed  by  §  67   (f),  may 

not  vote  until  surrender,  §  579,  p.  349. 
Creditors  not  Present,  ^ot  to  vote,  §  582,  p.  350. 
Who  are  "Creditors,"  §  573,  p.  348. 
jMajority    required,    majority    both    in    Number    and    x\mount    of    Allowed 

claims  Present,  §  581,  p.  350;   §  868,  p.  497. 
Meetings   to  be  held  in  conformity  with  Notices,  §  589,  p.  353. 
Notice  to  be  given  of,  §  565,  p.  343;  §  2288,  p.  1398;  §  2289,  p.  1398. 
For  Other  Participation  than  Voting,  claim  need  not  be  allowed,  §  580,  p. 

349. 
Priority  creditors  to  vote  onlj^  for  Deficit,  §  576,  p.   349. 
Preliminary  Estimate  of  values  for  voting  purposes,  §  577,  p.  349. 
Proxy  or  Attorney,  creditor  may  act  by  and  be  considered  present,  §   583, 

p.    350. 
Powers  of  Attorney  for  Corporations  and  Partnerships  to  contain  oath  of 

official  capacity,  §  587,  p.  353. 
Receiver  in  Stockholder's  Liability  Suit  a  creditor  of  bankrupt  stockholder, 

§    573,    p.    348    n. 
Secured  creditors  to  vote  only  on  Deficit,  §  576,  p.  349. 
Several  Claims  assigned  to  one  person,  but  one  vote,  §   574,  p.  348. 
Special  Meeting  for  presentation  of  Offer  of  Composition,  §  2358,  p.  1431. 

Notice   of,   §   2358,  p.   1431. 
Valuable  feature  of  modern  bankruptcy  law,  §  571,  p.  345. 
Written  Power  of  Attorney  requisite  to  vote  at,  §  584,  p.  351. 
Written  Power  of  Attorney  not  requisite  for  attorney  at  law  in  other  mat- 
ters than  voting,  §  585,  p.  352. 

MEMBERSHIP  IN  STOCK  EXCHANGES,  ETC.,  AND  LICENSES,  ETC. 

Subject  to  Contingency  of  Election  or  of  Approval  of  Public  authorities, 
yet  pass  to  trustee,  §  968,  p.  542. 

"Transferable"  only  by  Peculiar  and  Unusual  means,  yet  may  pass  to  trus- 
tee,  §   969,   p.   542. 

When  pass  to  trustee,  §  967,  p.  540. 

MERCANTILE  AGENCY 

False    Representations   to,   property   obtained   b}%   obligation   excepted   from 

discharge,  §  2752,  p.  1619. 
"False  Statements  in  Writing"  to,  when  bar  to  discharge,  §   2565,  p.   1543. 
Not  "Printing"  nor  "Publishing"  Corporations,  §  92,  p.  87. 

MERCANTILE  AGENCY  CORPORATIONS 

See   "Involuntarj-    Bankruptc}-." 

MERCANTILE  AGENCY  REPORTS 

Annual  Subscription  to,  claims  for,  §  809,  p.  471. 

MERCANTILE  PURSUITS 

See  "Traders  and  Trading." 

MERCHANDISE 

When  it  passes  to  trustee,  §  1001,  p.  556. 


2192  GENERAL  INDEX. 

MERGER 

Judgment  not  such  merger,  as  prevents  inquiry  into  original  fraudulent  or 
fiduciary  liability,  §  2749,  p.  1618;  §  2790,  p.   1633. 

Even  though  tort  waived  and  judgment  be  on  quasi  contract,  §  2750,  p. 
1518. 

MILEAGE 

See  "Witness  Fees  and  ^lileage." 

MINING  CORPORATIONS 

Subject  to  Bankruptcy,  §  93,  p.  87. 

Mining  inckides    Quarrj^ing   Corporations,   §   93,   p.   87. 

MISAPPROPRIATION 

While  officer  or  in  fiduciary  capacity,  not  discharged,   §  2783,  p.   1628. 

MISCONDUCT    OF   TRUSTEE,   AT    SALES    IN    BANKRUPTCY,    §    1954, 
p.    1217.. 

MISJOINDER  OF  OBJECTIONS  TO  CLAIM,  §  832,  p.  482. 
MISREPRESENTATION 

Reclaiming  of  goods  bought  upon,  §   1879,  p.   11-65. 

MISTAKES 

Clerical,  Disregarded  on  review,  §  3011,  p.  1742. 

Honest,  even  of  law,  excuses  apparent  concealment  of  assets,  §  2490,  p. 
1504. 

MONEYS 

Duty  of  trustee  to  deposit  in  depository,  §  909,  p.  519. 

"MONEY  HAD  AND  RECEIVED" 

Trustee  may  sue  State  court's  officer  for,  where  lien  by  legal  proceedings 
nullified  by  bankruptcy,  §  1476,  p.  878. 

MORTGAGE 

Assumption  of  by  Bankrupt,  §  1148,  p.  678. 

By  bankrupt  to  Raise  Money  to  go  ihto  bankruptcy,  §  1504,  p.  900. 

See  "Chattel   Mortgages." 

Enforcement  of  not  barred  by  debtor's  discharge,  §  2668,  p.  1587. 

To  cover  Future  Advances  good,  though  made  within  four  months,  §  1223, 
p.  725. 

Included  in  term  "Transfer,"  §  1332,  p.   780. 

Ordering  Cancellation  of,  on  Tender  of  Amount  Due,  on  petition  to  re- 
deem, §  1826,  p.  1121. 

Transfer  Absolute  in  form,  but  mortgage  in  fact,  §  1200,  p.  698. 

Trustee  bound  by  bankrupt's,  §  1145.,  p.  676;  §  1147,  p.  677.    . 

When  passes  to  trustee,  §  1001,  p.  556. 

Withheld  from  Record,  when  void  in  bankruptcy,  §  1222,  p.  723. 

MORTGAGED  PREMISES 

Exemptions  claimed  in,  §  1056,  p.  605. 
See  "Leasehold." 
See  "Rent." 

Rent  of,  on  Marshaling  Liens,  §  1885,  p.  1180  n. 

Taxes  on  to  be  paid  by  trustee  though  only  one  benefited  be  mortgagee, 
§  2147,   p.   1323.  . 


GENERAI,  INDEX.  2193 

I 

MORTGAGEE 

In  Actual  Possession  "Adverse  Claimant,"  §  167o,  p.  1033. 

See  "Chattel  Mortgagee." 

In  Possession  under  mortgage  for  benefit  of  creditors  is  Adverse  Claim- 
ant, §  1668,  p.  1032. 

Summary  Jurisdiction,  whether  anj'  over  mortgage  in  possession,  on  tender 
of  amount  due,  §  1S2G,  p.  1121. 

MOTION 

To  dismiss  claim  for  failure  to  make  prima  facie  case,  §  835,  p.  482. 
To  involuntary  petition,  §  334,  p.  228. 

MOTIVE 

Creditor's  motive  in  objecting,  immaterial,  §  822,  p.  476. 

MULTIFARIOUSNESS 

Allegation  for  provisional  seizure  not  to   be  made   in  petition  itself,   §  338, 

p.    232. 
Allegation  for  injunction  not  to  be  made  in  petition,  §  361,  p.  243. 
Injunction  prayed  for  in  bankruptcy  petition,  is,  §  250,  p.  190;  §  361,  p.  243. 
Involuntary  petition  not  to  be  multifarious,  §  250,  p.  189. 
Joining  Assignee  or  Receiver  with  bankrupt  in  petition,  is,   §  250,  p.   190. 
Provisional   Seizure   of   property,   prayed   for   in   involuntary  petition,    is,   § 

250,  p.   190;   §  338,  p.   232. 

MUNICIPALITY 

Claims  of,  for  priority,  §  2189,  p.  1345. 

MUTUAL  DEBTS 

See  "Set-Off  and  Counterclaim." 

NATURAL  PERSON 

Any  Person  Owing  Debts  May  be  Voluntary  bankrupt,  §  37,  p.  55. 

Wage   Earners  and   Fanners   excluded   from   Involuntary   Bankruptcy,   §   46, 

p.  59. 
When   ]May  be  Thrown  Involuntarily  Into  Bankruptcy,   §  45,  p.  58. 

NATURE  OF  BANKRUPTCY  ACT 

Contemplates  Celerity  of  Procedure,  §  23,  p.  38. 

Economy  of  Administration  Intended,  §  24,  p.  39;  Introd.   (m),  p.  14. 

Not  Intended  to  Cover  all  Cases  of  Insolvency,  §  21,  p.  37. 

Not  to  be  too  Summary,  §  23,  p.  39. 

Present  Law  brings  Courts  Close  to  Suitors,  §  24,  p.  39   n.     Also,  Introd. 

(m),  p.  14. 
Remediable  and  to  be  fairly  construed,  §  22,  p.  37. 
Early  English  Acts,  Introd.  (h),  p.  9. 

Meaning  and  Idea  of  Bankruptcy  Law  of  Today,  Infrod.   (n),  pp.  15,  16,  17. 
Modern- Bankruptcy  Law  not  Criminal  Statute,  Introd.   (c),  p.  2. 
See  "Object  of  Bankruptcy  Law." 
At  Time  of  American  Revolution,  Introd.  0),  P-  10. 

NATURE  OF  BANKKRUPTCY  PROCEEDINGS 

All    Persons   Bound   thereby,   §   19,  f).    36. 

Are  Proceedings  in   Equity,  §  20,  p.   37. 

Are  Proceedings  in  Rem,  also  in  Personam,  §  18,  p.  34. 

Not  a  mere  Civil  Suit,  §  24,  p.  39  n. 

2  Rem  B— 63 


2194  GENERAL  INDEX. 

"NECESSARIES" 

Property  iKjt   Exempt  as  to,  §   1035,  p.   587. 

NE  EXEAT 

Writ  of,  §  373,  p.  246. 

NEGLIGENCE 

Judgment  for,  whether  Dischargeable,  §  2754,  p.  1620. 

Of  Landlord,  damages  for,  pass  to  tenant's  trustee,  §  1019,  p.  568  n. 

NEGOTIABILITY   UNIMPAIRED    BY    BANKRUPTCY,   §    794,   p.    464. 

"NEW  CREDIT" 

See  "Set-Off  of  New  Credit  by  Preferred  Creditors." 

NEW  PROMISE 

Waiving   Discharge   by,   see   "Discharge — Revival   of   Discharged    Debts." 

"NO  ASSETS" 

Dispensing   with    trustee   where    no   assets    exist    and    no    creditors    present, 
§  871,  p.  498. 

NONCONSENTING  PARTNER 

Not  made  Parfy,  no  Adjudication  on  Voluntary  Partnership  Petition,  §  6*8, 

p.  73. 
Partnership  petition  filed  by   one  partner  where   others  do  not  join,  §    71, 
p.  74. 

Treated   as  voluntary  as   to   creditors,   involuntary   as  to   nonconsenting 
partners,  §  72,  p.  74. 

NONDISCHARGEABLE  DEBTS 

See  "Discharge — Debts  Excepted  from." 

NONRESIDENT 

Service  on,  when  suit  is  in  U.  S.  District  Court,  §  1755,  p.  1073. 
Notice  on,  if  court  have  Actual  Possession,  §   1891,  p.  1183. 
Notice   served   outside   district   on,   not   sufficient   to   confer   summary   juris- 
diction to  make  inquiries  as  to  whether  "adverse  claimants,"  §  1866,  p.  1162. 

NONRESIDENT  DEBTOR 

Adjudged  bankrupt   When,  §   32,  p.   52. 

NOTARY  PUBLIC 

Certification  of  Official  Character,  none  rccjuisite,  §  614,  p.  365. 
See  "Oaths  and  Acknowledgments." 

NOTE 

Allowability  of,  see  "Commercial   Paper." 

Discounting  of  Bankrupt's,  not  Preference,  §  1287,  p.   758. 

For  Future  Rent  not  Provable,  §  660,  p.  402. 

For  Future  Rent  Provable  if  Negotiable  and  in  hands  of  Innocent  Holders 

or  taken  as  payment,  §  661,  p.  40:jj 
Giving  of,  not  Preference,  but  Paying  of  is,  §  1283,  p.  757. 
Payment  of  by  bankrupt,  where  Discounted  by  Creditor,  preference,  §  1285, 

p.  758. 


GENERAL  INDEX.  2195 

NOTE— Continued. 

Paj-ment  of,  by  sureties  and  Endorsers  of  bankrupt,  not  preferences,  §  1288, 

p.  759. 
Paj'ment   of,   by   ]\Iaker,   where   discounted   by   bankrupt,   where   preference, 

§  1289,  p.  759. 
Proofs  of  Claim  must  state  whether  Note  given,  §  601,  p.  357. 
Taking  of  does  not  Waive  Priority,  §  2135,  p.  1317. 
^^'aiving  Xote  and  Proving  on   Original   Consideration,  §   602,  p.  358  n. 

NOTICE 

On  Appeal,  §  2960,  p.  1725. 

Of  Application  for  Injunction,   State  Court   Officers   must   have,   §  2700,  p. 

1601. 
Of  application   for   Receiver,   §   381,   p.   251. 
To  bankrupt  to   File  Petition  for   Discharge,  referee  need   not  give,   §   2428, 

p.  1467. 
On  Bankrupt  in  Summary  Proceedings,  §  23,  p.  39;  §  1838,  p.  1130. 
None  to   Bankrupt   nor  Witness   of  Application   for   General    Examination, 

§   1533,  p.  916. 
Court   or   Officer  seeking  to   enforce  lien  by  legal   proceedings   must  have 

notice,  though  lien  absolutely  void,   §  1470,  p.   874. 

To  creditor.  Cures  Defective  Scheduling,  §  2777,  p.  1627. 

No   particular   form   of   notice   requisite,   §   2778,   p.    1627. 

Due  process  of  Law 

Whether  notice  to   creditors  by  mail   is,   §   12,   p.   28. 

Duty  of  referee  to  give,  §  510,  p.  322. 

Of  Hearing  for  Injunction,  §  363,  p.  243. 

To  Lienholders  requisite  on  Marshaling  Liens  and  Selling  "Free  and  Clear," 
§   1889,  p.   1182;  §   1980,  p.   1229. 

To  Nonjoining  Partner,  where  partner  files  petition,  §  72,  p.  77. 

On  Nonresidents,  if  Court  has  Actual  Possession,  §   1890,  p.  1183. 

To  Officer  is  notice  to  corporation  Creditor,  §  114,  p.  109. 

Order  of  Referee  to  Recite  what,  if  any,  given,  §  562,  p.  340;  §  1983,  p.  1230 

"Order  to  Show  Cause"  proper  method  on  Marshaling  Liens,  and  on  Sell- 
ing "Free  and  Clear,"  §  1890.  p.  1183;   §  1982,  p.   1229. 

To  Original   Claimant,  where  claim  Assigned  after  proof,  §  743,  p.  442. 

Of  Petition  for  Reclamation  to  be  served  on  trustee,  §  1876,  p.  116-". 

Of  Petition  for  Restraining  order  to  be  given,  unless  for  good  cause  dis- 
pensed with,  §  1921,  p.  1196. 

To  President,  notice  to  Bank,  §  114,  p.  109. 

Reasonable,  requisite  for  Summary  Order  on  Bank-upts  and  other,  3  183S, 
p.  1130. 

Requisite  before  Removal  of  Trustee,  §  944,  p.  525. 

Service  of,  where  Bankrupt  Supplies*  List  of  Creditors  claiming  more  than 
twelve,  §  209,  p.  171. 

Service  of  Outside  District  not  sufficient  to  confer  jurisdictiori  to  make 
inquiry  whether  "Adverse   Claimant,"   §    1866,   p.    1162. 

Service  of,  and  mere  possession  of  res  insufficient  to  render  judgment  in 
personam,  §  1892,  p.  1183. 

"Ten  Days  Notice  by  Mail"  insufficient  on  Lienholders,  on  ^larshaling  of 
Liens  for  sale  "free  and  clear,"  §  1890,  p.  1183;  §  1981,  p.  1229. 


2196  GENERAI.  INDEX. 

NOTICE— Continued. 
To  Trustee 

Of   Fraud  in   Procuring   Discharge   is  notice   to   all   creditors,   §   2816,  p. 
1648. 
To  Witness  proper  where   Second   Examination  sought,   §   1534,  p.  917. 
On  Writ  of  Error  and  on   Petition  to  Review,  requisite,   §  2945,  p.   1721;   § 
2946,  p.  1721;  §  2958,  p.  1725. 

NOTICES  TO  CREDITORS 

Of  Abandonment,  whether  requisite,   §   934,  p.   524. 

To  All   Scheduled  creditors  and  to  All  Filing  Claims,  §  567,  p.  343. 

Creditors  entitled  to  onlj^  such  as  Statute  prescribes,  §  19,  p.  37. 

Contents  of,  §  2290,  p.  1398. 

Of   Declaration   of   dividend   requisite,   §   23S9,   p.   1398. 

Of  Discharge,  ten  daj^s  notice  bj^  mail,  'requisite,   §   2431,  p.  1469. 

On  Dismissal  of  Involuntary  Petition,  §  419,  p.  269. 

Of   Examination  of  Bankrupt  requisite,   §   1535,  p.   917;   §   565,  p.   342. 

Of  final  meeting,  §  2296,  p.  1401;  §  2288,  p.  1398. 

To  be  Given  by   Referee,   §   569,  p.  344. 

In  Individual  Bankruptcj^  must  Mention  Firm  Debts,  if  Discharge  there- 
from sought,  §  2798,  p.  1641. 

By  Mail,  "Ten  days  notice,"  §  565,  p.  342;  §  566,  p.  343;  §  1938,  p.  1209. 

^Meetings   to  be  held  in  Conformity  with,  §   589,  p.   353. 

Of  Meeting  to  Consider  Offer  of  Composition,  §  2358,  p.  1431. 

Xot  Necessary  to  Binding  Efifect  of  Adjudication,  §  19,  p.  36. 

Not  Necessary  to  Binding  Effect  of  Subsequent  Proceedings  in  Adminis- 
tration  of   Estate,    §    19.,    p.    36. 

None  for  Examination  of  other  Witnesses,  §  1536,  p.  917. 

None  requisite  where  Bankrupt  Witness  upon  issues  in  Controversy  be- 
tween parties,  §  1544,  p.  921;  §  1545,  p.  922;  §  1546,  p.  922. 

Not  requisite  for  Sale  of  Perishable  property,  §  1938,  p.  1209;  §  1942,  p. 
1212. 

Not  Requisite  for  Allowance  of  Attorney's  Fees,  §  2053,  p.  1275. 

None  on  Dismissal  After  hearing  Merits,  §  420,  p.  271. 

By  Publication,  §  568,  p.  344. 

Of  all  Proposed  Sales,  §  1938,  p.  1209. 

By   Publication,   of   Discharge,   §   2432,   p.   1470. 

Personal  Notice  of  Discharge,  not  Essential  to  Bind,  §   19,  p.  37. 

Reinstatement  of  Involuntary  Petition  on  Dismissal  without,  §  421,  p.  271. 

Requisite  on  Petition  to  Redeem,  §  1869.  p.  1162. 

To  State  Object,  Time  and  Place,  §  570,   p.   344. 

Where  Schedules  give  No  Address,  §  ^431,  p.  1469  n. 

Ten  days  notice  for  Confirmation  of  Composition,  §  2371,  p.  1436. 

Valuable  Feature  of  act,  §  564,  p.  342;  §  1938,  p.  1210. 

Of  what  matters  must  ten  days  dne  notice  be  given  to  all  creditors,  §  565, 
342;  §  928,  p.  523;  §  1535,  p.  917;  §  1869;  p.  1162;  §  1938,  p.  1209:  §  2288, 
p.  1398;  §  2289,  p.  1398;  §  2296,  p.  1401;  §  2358,  p.  1431;  §  2371,  p.  1436; 
§  2431.  p.  1409. 

"NOTORIOUS   POSSESSION" 

Either  Record  or  Notorious  Possession  suffices,  §  186,  p.  153. 
"Four  months"  to  date  from,  in  act  of  bankruptc}',  §   185.  p.  152. 
Onlj-   such    requisite   as   Property   Susceptible   of,    §    187,   p.    154. 


GENERAL  IXDKX.  2197 

NOVATION,  §   1885,  p.  nSO  n. 

NUMBER 

Of  Petitioning  Creditors,  see  "Parties  in  Involuntary  Proceedings." 
Of  Trustees 

To  be  either  One  or  Three,  not  merely  two,  §  874,  p.  500. 

Concurrence  of  Two  requisite,  where  there  are  three,  §  876,  p.   500. 
Whether  maj'  be  subsequent!}'  increased,  §  875,  p.  500. 

"NUNC  PRO  TUNC"   ORDERS 

Granting  Extension  of  Time   to  file  Petition  for  Discharge,  §  242G,  p.  1465. 

OATH 

See    "Discharge — Opposition    to — Grounds    of — 'False    Oath.'" 
See  "Verification." 

OATHS  AND  ACKNOWLEDGMENTS 

Who  may  take,  §  588,  p.  353;  §  614,  p.  365. 

OATH  OF   OFFICE 

Of  Referee,  §   503,  p.   320. 

OBEDIENCE 

Duty  of  bankrupt  to  obey  all  lawful  orders,  §  458,  p.  303. 

OBJECT  OF  BANKRUPTCY  LAW,  §17,  p.  31. 

Evil  against  which  Directed,  Introd.  (g),  p.  5;  Introd.  (n),  pp.  15.  16,  17. 
Modern   Bankruptcy   Law  not   Criminal   Statute,   Introd.    (c),   p.   2. 
Release  of  Debts  not  ]\Iain  nor  Essential  Idea,  Introd.  (a),  p.  1. 
See  "Nature  of  Bankruptcy  Law."     Also,  see  "History." 

OBJECTIONS  TO    CLAIMS 

Creditors  and  trustee  bound  bj-  bankrupt's  contracts  and  acts,  §  783,  p.  462. 
Evidence   on,   see   "Witnesses." 
Jurisdiction  as  to,  §  818,  p.  475. 

Pleadings  and  procedure  on 

Deposition   for   proof   of  debt,   prima   facie   case   for   claimant,   §   844,   p. 
484. 

Creditor  to  be  given  due  notice  of  objections  of  claims,  §  839,  p.  484. 

Notice  by  referee  and  may  be  by  mail,  §  840,  p.  484. 

Jury  Trial  not  to  be  had,  §  849,  p.  489. 

Variance  between  claim  and  proof,  §  850,  p.  489. 

Trustee's  attorney  not  to  act  as  claimant's  attorney,  §  851,  p.  490. 

Objections   for   lack   of   form   and   provability   not   necessarily   in   writ- 
ing, §  830,  p.  480. 

Objections  for  substance,  properly  in  writing,  §  831,  p.  481. 

Several  Claims  not  to  be  objected  to  in  one  pleading,  §  832,  p.  482. 

Misjoinder  of  objections  to  claims,  §  832,  p.  482. 

Objections  to  be  Specific,  §  833,  p.  482. 

Amendment   of   objections   permissible,   §   834,   p.   482. 

Overruling  trustee's  motion  to  dismiss  claim  for  failure  to  make  prima 
facie  case,  §  835,  p.  482. 
Trustee    entitled    to    all    objections    bankrupt    might    have    urged,    but    not 
limited  to   such,   §   782,   p.   461. 


2198  GENERAL  IXDEX. 

OBJECTIONS  TO  CLAIMS— Continued. 
Who  may  object 

On  trustee's   refusal  he   may  be  ordered  to   object,   §   826,   p.   479. 

On   trustee's    refusal,    creditor    or    bankrupt    may    be    permitted    to    ob- 
ject, §  826,  p.  479. 

If   creditor    proceeds,    should    use    trustee's    name,    §    827,    p.  ,479.      See 
"Using    Trustee's    Name." 

Though  but  one  creditor  in  position  to  object,  yet  trustee  may  object, 
§  828,  p.  480. 

Creditor  holding  special  defense,  yet  may  not  object  in  his   own  name,' 
§   829,  p.  480. 

Parties  in  interest,   §  818,  p.   475. 

Before  election  of  trustee,  either  bankrupt  or  creditor  is  a  proper  party 
to  object,  §  819,  p.  475. 

Others   may   not   object,   §   820,   p.   476. 

Receiver   may   not   object,   §   821,   p.   476. 

Creditor's  motive  in   objecting  immaterial,   §   822,   p.   476. 

After  trustee   elected,   all   objections   to   be   by   him  or   in   his   name,   § 
824,  p.    477. 

Creditor  may  not  have  re-examination  of  his  own  claim,  after  disallow- 
ance,  §  825,   p.  478. 
Witnesses,  see  "Witnesses." 

OBLIGATION 

Renunciation  of,  operating  as  breach  of  Continuing  Contract,  §  690,  p.  417. 

OBLIGATIONS   OF  CONTRACT 

Not  "Impaired"  by  clause  "f  of  §  67  nullifying  liens  by  legal  proceedings, 
§  1465,  p.  871. 

OBSTRUCTIVE  SUITS 

Brought  after  bankruptcy  court  acquires  custody,  enjoined,  §  1805,  p.  1100. 

"OBTAINING  PROPERTY      ON   CREDIT" 

As  bar  to  discharge,  §  2556,  p.  1539;  §  2557,  p.  1440;  §  2558,  p.  1540;  §  2559, 
p.  1541;  §  2560,  p.  1542;  §  2561,  p.  1542;  §  2562,  p.  1542;  §  2563,  p.  1542; 
§  2564,  p.  1542;  §  2565,  p.  1543;  §  2566,  p.  1543;  §  2567,  p.  1544;  §  2568,  p. 
1544;   §   2569,  p.  1544;   §  2570,   p.   1544. 

See  "Discharge — Opposition  to — Grounds  of — False  Statement  in  Writ- 
ing to  Obtain  Property  on  Credit." 

OBTAINING  PROPERTY  ON  FALSE  PRETENSES 

Liabilities   for  not  discharged,   §   2746,   p.   1616. 

OCCUPATION 

See  "Use  and  Occupation." 

"OFFENSES"  AGAINST  THE  BANKRUPTCY  ACT 

See  "Crimes  against  the  Bankrupt  Act.'' 

OFFER 

Of  Composition,   see  "Composition — Procedure  on." 


GENERAL  INDEX.  2199 

OFFICER 

Fraud,   Embezzlement  or  defalcation  by,  not  discharged,  §  2783,  p.   1628;   § 

2784,  p.  1629. 
Private     Corporation's     officer,     Fraud,    embezzlement    or     defalcation    bj-, 

whether  excepted   from   Discharge,  §   2787,   p.   1631. 

OFFICER   OF   CORPORATION 

Acting  as  Assignee,  no  Estoppel  of  Corporation  creditor  by,  §  225,  p.  178. 
Authority  of,  to  file  petition,  in  behalf  of  corporation,  §  219,  p.   175. 
The  "Bankrupt"  when,  §   1527,  p.  914;   §   1821,  p.   1118. 
Xot  the  '"Bankrupt,"  for  purposes  of  indictment  for  concealment  of  assets,  § 

2326,  p.  1412. 
Excluded   in'  determining   whether   total    creditors   less   than   twelve,   §    200, 

p.  164. 
'/     General    Examination    of,   §    1527,   p.   914. 
Indictment  of  for   False  Oath,  §  2325,  p.  1412. 
May  be  Petitioning  Creditor,  §  215,  p.   174. 
Notice  to  President,  notice  to  creditor  bank,  §  114,  p.  109. 
Schedules   to  be  prepared  by,  §   480,  p.   309. 
Witness   fees   of,  §   1527,   p.   914;   §   2126,   p.   1309. 

OFFICERS  OF  COURT 

See  "Sheriff." 

OFFICIAL  FORMS  AND   ORDERS  IN  BANKRUPTCY,  §  25,  p.  40. 

Advance  Interpretations  as  to  Procedure,  §  26,  p.  40;  §  1048,  p.  602. 
Attorneys'  fees,  whether  allowed  where  official  forms   adequate,  §   2058,   p. 

1280. 
Directory,  merely,   §  26,  p.   41. 
Followed,  §  26,  p.  40. 
See  "Forms." 
Involuntary  Petition,  official  form  of,  to  be  adhered  to  as  closely  as  facts 

permit,  §   259,   p.   194. 
Xot  to  Override  Statute,  §  26,  p.  40. 

Prescribed  and  Amended  from  time  to  time  by  Supreme  Court,  §  25,  p.  40. 
Where  Silent,  equity  rules  followed,  §  1932,  p.  1208. 

OFFICIAL  ORDERS 

See  "General  Orders  in  Bankruptcy." 

OFFSETS  , 

Claims  not  proved  within  j^ear,  nevertheless  available  as,  §  733,  p.  439. 
See  "Set-Ofif  and  Counterclaim." 

OMITTED  CREDITORS 

After  Discharge  too  Late  to  Amend  Schedules  to  include,  §  2782,  p.  1628. 

OMITTED  PARTIES 

Made   Parties   on    .\ppeal,   §   2837,   p.    1657. 

OMITTING  ASSETS  FROM  SCHEDULES 

See     "Discharge — Opposition     to — Grounds     of — 'Concealment     of     Assets,' 

and  'False   Oath.'  " 
Instances  of,  §  2521,  p.  1518  n;  §  2541,  p.  1528  n;  §  2541,  p.  1529  n;  §  2541, 

p.   1530  n. 


2200  GENERAi,  inde:x. 

OMITTING   CREDITORS   FROM    SCHEDULES 
"False    Oath,''   when,   §   2542,   p.   1531. 

OPEN   ACCOUNTS 

See   '"Accounts." 

OPERATION  OF  LAW 

Composition  Releases  Debts  by,  §  2350,  p.  1427. 
Title  Vests  in  trustee  by,  §  1112,  p.  635. 

"OPINION" 

Insufficient  on  Appeal,  though  may  be  "Looked  To,"  §  2957,  p.  1725;  §  3008, 

p.  1740. 
Insufficient  on  Review,  unless  specialh'  made  part  of  the  record,  §  2840,  p. 

1660;  §  2956,  p.  1724. 
Of  lower  court  may  be  "looked  to,"  §  2957,  p.  1725;  §  3008,  p.  1740. 
Xo  review  of,  §  2840,  p.   1660. 

"OPPOSITE  PARTY" 

Taking  Deposition  of,   §  1549,  p.  926. 

Calling  of  as  Witness,  whether  bound  bj^  his  testimon}-,  §   1549,  p.   926. 

OPPOSITION  TO  DISCHARGE 

See    "Discharge — Opposition    to." 

ORDER 

Approving    or    Disapproving    Trustee's    report    of    Exempted    property    res 

judicata  elsewhere,  §  1088,  p.  615. 
To  Assign  Life  Insurance  Policy,  §  19,  p.  36. 
.  "Closing  of  Estates"  by,  §  2298,  p.  1401. 

Of  Distribution 

In   Composition,  §   2393,   p.   3  446. 

Of  Dividends,  §   2^4,   p.    1396. 

Exceptions  to,  §  2293,  p.  1399. 
Examination  of  bankrupt  at  first  meeting,  order  for  not  requisite,   §   1538, 

p.  918. 
Exception   to,   requisite,   else   no   review,   §   2842,   p.   1661. 
"Final,"  else  not  appealable,  §  2890,  p.   1697;   §  2922,  p.   1712. 
Final,  requisite,  else  no  review,  §  2841,  p.  1660. 
t      General  Examination,  order  for  requisite,  §  1537,  p.  918;  §  1539,  p.  918. 
Interlocutory,  no   review  of,   §  2841,  p.   1660. 

Of  Referee 

Disapproval  of   Election  of  Trustee,   order  to  be   entered,   §   894,  p.   510. 

In  General,  §  561,  p.  340. 

Notice,  Appearance  and  Hearing  to  be  recited,   §   562,  p.   340;   §   1983, 
p.  1230. 

Referee  may  Vacate  or  Modify,  §  563,  p.  340. 
Referee's,   must  be   certified   on   review,   §   2852,  p.   1664. 
By  Referee  requisite,  else  No  Review,  §  2840,  p.  1559. 
Refusal  to  obey,  as  bar  to  discharge,  §  2580,  p.  1548. 

Of  Sale 

Requisite,  §  1931,  p.  1208. 


ge:ni;r.\l  index.  2201 

ORDER— Continued. 

Should  provide  for  Transfer  of  Rights  to  Proceeds,  §  1970,  p.  1226. 
Should   Show   Notice   and   to   Whom   Given,   §   1983,   p.    1230. 
For   Summarj'-   Surrender   of  Assets,   see   ''Summary    Orders   on    Bankrupts 
and    Others." 

ORDER  OF  ALLOWANCE 

Prima  facie  case  for  claimant,  on  petition  for  re-examination,  §  843,  p.  484. 

ORDER  OF  ALLOWANCE  OR   DISALLOWANCE 

Res  Judicata,  §  791,  p.  463. 

ORD^R  ON  BANKRUPT 

To  execute  assignments  and  other  papers,  §   1115,  p.  636. 

To  assign  interest  in  insurance  policy,  §  19,  p.  36;  §  1009,  p.  561;  §  1115, 

p.  636  n. 
To  transfer  license,  §  1115,  p.  637  n. 
See  '"Sumniar}-  Orders  on. Bankrupts  and  Others." 

ORDER  OF  COURT 

Disbursements  of  trustee  to  be  onlj^  on,  §  911,  p.  519. 

"ORDER  TO  SHOW  CAUSE" 

Proper  method  of  Notice  to  Lienholders  in  Marshaling  liens,  a.mi  in  Sell- 
ing "Free  and  Clear,"  §  1890,  p.  1183;  §  1982,  p.  1229. 

ORDER   OF   SURRENDER 

See   "SnmmarA^   Orders   on    Bankrupts    and    Others." 

ORDERS  IN  BANKRUPTCY 

See   '"General    Orders   in    Bankruptc}'." 

ORE  SMELTING  CORPORATIONS 

See  "Manufacturing  Corporations." 

ORIGIN  OF  BANKRUPTCY  LAW 

See  "History." 

See   "Nature   of   Bankruptcy    Law." 

See  "Object  of  Bankruptcy  Law." 

OSTENSIBLE  PARTNER 

Adjudication  of  .partnership  in  name  of,  §  62,  p.  68. 

"OTHER  CASES" 

Appeals  to  Supreme  Court,  in  '"Controversies,"  where  would  have  juris- 
diction in  "other  cases,"  §   3016,  p.   1745. 

Refer  to  cases  covered  by  act  creating  Circuit  Court  of  Appeals,  §  3017,  p. 
1745. 

OWNER 

Owing  on  building  contract,  subject  to  liens,  is  "adverse  claimant,"  §  1682, 
p.   1035. 

OWNERSHIP 

Change  of,  of  Petitioning  Creditor's   claim,  §  238,  p.  185. 


2202  GENERAL  INDEX. 

"OWING" 

Not  necessary  to  be  Due  nor  Damages  Liquidated,   §  673,  p.   410. 
See   "Claims    Xot   Owing   at   Time   of   Filing   Bankruptcy    Petition." 

"OWING  BUT  NOT  YET  DUE" 

How  such  debt  is  set  forth  in  proof  of  claim,  §   599,  p.  357. 
Such    debts    included    in    bankrupt's    liabilities,    in    determining    insolvency, 
§  1365,  p.  794. 

PAID-UP  POLICY 

May  not  compel  third  party  interested  to  accept  a  paid-up  policy,  §   1019, 
p.   562. 

PAPER  MAKING  CORPORATIONS 

See  "Manufacturing  Corporations." 

PAPERS 

Relating  to   bankrupt's   property  pass   to   trustee,   §   955,   p.   536. 
If  not  so  relating,  do  not  pass,  §  957,  p.  536. 

PARENTAL  RIGHT 

Property  belonging  to  bankrupt  by,  passes  to  trustee,  §  998,  p.  556. 

PARTIES  IN  INVOLUNTARY  PROCEEDINGS 

Actual    connivance   at   act   essential   to   estoppel,   §   223,   p.    177. 

Actual  connivance  at  or  express  assent  to  -general  assignment  as  estoppel, 

§  224,  p.  178. 
Authority  of  corporate  officer  to  file  petition,  §  219,  p.  175. 
Assisting  to  procure   involuntary  adjudication,   apportionment   of   attorneys' 

fees,  §  2066,  p.  1283. 
Bankrupt  to   Supply   List  of   Creditors,  if  he   cl?ims   averment   of  less   than 

twelve  to  be  erroneous,  §  208,  p.  171. 
Change  of   Ownership  of  petitioning  creditor's   claims.   §   238,   p.   185. 
Creditors  may  join  and  plead  separately,  §  211,  p.  172. 
*    Creditors  may  join  although  sufficient  alreridy  petitioning,  §  211,  p.  172. 
Corporation   creditor   not   estopped  by   officer   acting  as   assignee,   §   225,   p. 

178. 
Creditor's  claim  not  to  be  split  up  to  obtain  jurisdictional  number,  §  204,  p. 

167. 
Creditors  assenting  to  General  Assignment,  §  200,  p.  164  n;  §  22-1,  p.  178. 
Creditors  holding  provable  claims  and  only  such  competent,  §  227,  p.   179. 
Claims  arising  after  filing  of  petition  insufficient,  §  229,  p.   179. 
Contingent   claims  insufficient,  §  230,  p.   179. 

Attaching  creditors,   and   other   creditors   obtaining   liens   by   legal   pro- 
ceedings, §  234,  p.  183. 
Preferred  creditors  competent,  §  233,  p.  182. 
Sureties'  claims,  §  231,  p.   179. 

Unliquidated   claims   sufficient  if  provable,   §   232,   p.    ISO. 
Date    of   Adjudication    determines    whether    requisite    number    have    joined. 

§  201,  p.  165. 
Date   of  Filing  Petition   determines   how  many   must  join,   §   202,  p.   165. 
Directors  and  Officers  excluded,  §  200,  p.  3  64. 

Diflferent  claims  purchased  in  by  one  creditor  lose  separate  identity,  §  203, 
p.  166. 


GENERAL  INDEX.  2203 

PARTIES  IN  INVOLUNTARY  PROCEEDINGS— Continued. 

No  Dismissal  except  on   Merits,  if  any  creditor  willing  to  take  up  contest, 
§  212,  p.  172. 

Disqualification  of  part  of  petitioning  creditors,  §  273,  p.  18.5. 

No  election  of  remedies  because  of  previous  attack  on  preferences  in  State 
Court,  §  226,  p.  178. 

Employees  and  Relatives  excluded,  §  199,  p.  164. 

Erroneous  averment  of  less  than  tvirelve,  §  207,  p.   170. 

Estoppel  of  creditors  by  Connivance,  §  221,  p.   175. 

Fraudulently  preferred  creditors  under  law  of  18G7,  not  counted  in,  §  200, 
p.    164    n. 

How  many  creditors  and  to  what  amount  must  join  as  petitioners,   §   197, 
p.  163. 

Intervening   of   creditors   to   resist    adjudication,   see   "Intervening   of   Cred- 
itors— To  Resist  Adjudication." 
-^Joining  of  Additional   creditors,    §    210,    p.    172. 

Mere  proving  of  claims   under   general   assignment   or   receivership   no   es- 
toppel, §  222,  p.  176. 

Claims  of  Petitioners  must  be  provable  at  time  of  filing  petition,  §  228,  p. 
179. 

Only    creditors    at    Time    of    Commission    of    act,    competent    petitioners,    § 
214,  p.  173. 

Officers  and  Directors  competent  petitioners,  §  215,  p.  174. 

Only  creditors  who  might  have  been  petitioners  to  be  counted,  §  206,  p.  170. 

Payment  or  Assignment  of  claim  after  filing  petition,  ineffectual  to  change 
number  who  must  join,  §  202,  p.   165. 

Preferred  creditors  Xo  be  counted  in  if  necessary,  §  205,  p.  167. 

Pref^erred  creditors  to  be  excluded  if  they  defeat  jurisdiction,  §  205,  p.  167. 

Partnership    creditors    competent    to    petition    against    individual    partner,    § 
217,  p.  175. 

Partnership  as  petitioning  creditor  in  firm  name,  §  218,  p.  175. 

Relatives,  Competent  Petitioners,  §  215,  p.  174. 
-^  Requirements    as    to    number    of    creditors,    etc.,    whether    jurisdictional,    § 
198,  p.  163. 

Service  of  Notice,  where  averment  of  less  than  twelve  erroneous  and  bank- 
rupt supplies  list.  §  209,  p.  171. 

Solicitation  by  bankrupt  to  file  involuntary  petition  not  improper,  §  216,  p. 
174. 

Solicitation    by   creditors   not   to   resist   adjudication,   not   improper,    §    216, 
p.    174. 

Secured  creditors  competent  to  extent  of  deficit,  §  220,  p.  175. 

Small  Claims  on  current  accounts  of  groceries,  etc.,  §  200,  p.  164  n. 
-Time  of  Joining  of  additional  Creditors,  §  213,  p.   172. 

Validity  of  Petitioning  Creditors  claim  may  be  disputed,  §  235,  p.  183. 

Withdrawal  of  petitioning  creditors,  §  236,  p.  184. 

PARTNER 

Conversion  by,  whether  discharged,  §  2785,  p.  1629. 

Imputed  Acts  of  Bankruptcy  by,  §  171,  p.  144. 

"Written  Admissions"  by,  as  acts  of  bankruptcy,  §  169,  p.  143. 

PARTNERSHIP 

Act  of  bankruptcy,  none  requisite  in  petition  by  one  partner  even  where  not 
all  join,  §  73,  p.  77. 


2204  GENERAL  INDEX. 

PARTNERSHIP— Continued. 

Actual  Partnership,  alone,  subject  to  bankruptcy,  §  63,  p.  68;  §  2239,  p.  1370. 
Adjudication  of  in   Firm  name,   §   61,  p.   67. 

Adjudication   of,   without   Adjudication  of   Individual   Members,   §   61,   p.   67. 
Adjudication  in  Firm  name,  nonbankrupt  partner's  estate  brought  in  though 

•farmer  or  wage  earner,  §  65,  p.  72. 
Adjudication   of   member   requisite   to   avoid   liens   by   legal    proceedings   on 

member's   individual   property,   §   1461,   p.   867. 
Adjudication   of   member  requisite   to   avoid   preferential   transfers   of  mem- 
ber's individual  property,  §  1393,  p.  821  n. 
Administrator  of   deceased   partner   in   possession   of   firm   assets   "Adverse 

claimant,"   §   1671,   p.   1032. 
"Before   Final  Settlement,"   Subject  to  bankruptcy,  §  57,  p.  64. 
Burden  of  Proof  of  existence  of  rests  on  Petitioning  Creditors,  §  63,  p.  69. 
"By  holding  out,"  not  within  Act,  §  63,  p.  68;  §  2239,  p.  1370. 
Creditors    may    not    intervene    against    a    partnership    petition    filed    by    one 

partner,  §  76,  p.   78. 
Death   of  Partner,  winding  up   of  insolvent  partnership   on   account   of.  not 

act  of  bankruptcy,  §  159,  p.  137. 
Debts  cf 

Secret  partner's  claim  not,  §  2247,  p.  1372. 

Assumed  by  partner,  provable  against  individual  estate,  §  2264,  p.   1386. 

Are  "provable"  against  individual  member,  §  2237,  p.  1368. 

Individual   debts   provable   against,   §   2237,   p.   1368. 

Obligation  signed  by  firm  name  prima  facie  allowable  as  firm  debt,  § 

2240,  p.  1370. 
Individual   debt  assumed  by  firm,   §  2241,   p.   1370;   §  2242,  p.   1371. 
Loan  to   enable  partner  to  furnish  contributory  share  not  firm  debt,   § 

2243.    p.    1371. 
i\Iere  joint  obligations,   not   amounting  to   partnership   debts,   §   2244,   p. 

1371. 
Parol  evidence  to  show  obligations  to  be  firm  debts,  §  2245,  p.  1372. 
Partnership  released  by  creditor's   acceptance  of  individual  obligation, 
§   2246,  p.   1372. 
During  Continuance  of  Partnership,   subject  to  bankruptcy,  §  57,  p.   64. 
As  "Entities"  §  59,  p.  65. 
"Final  Settlement"  of,  when,  §  58,  p.  65. 
Where  firm  alone  adjudicated 

Individual   estates  brought   in,   §   65,   p.   71;   §   2231,   p.   1365. 
Consent  not  necessary,  §  2232,  p.  1366. 

Partnership  trustee,  trustee  also  of  individual  estates,  §  2233,  p.  1366. 
Separate  accounts  to  be  kept  and  joint  expenses  apportioned,  .§  2234,  p. 
1367. 
Firm  and  Individual  Estates 

See   "Distribution — In   Partnership   Bankruptcies." 
Individual   IMembers  Joinable  with,   in   either  voluntary  or  involuntary  pro- 
ceedings, §  64,  p.  69. 
Individual  petition  not  amendable  to  include,  §  69,  p.  73. 
Insanity  or  Death  of  one  partner.  Jurisdiction  not  defeated,  §  97,  p.  93. 
Insolvency  of  individual   partners  to  be  alleged  in  involuntary  partnership 

petitions,  §  247,  p.  189. 
Insolvent,  not,  unless  all  Partners  insolvent,  §  1348,  p.  789. 
Insolvent,  when,  §  60,  p.  67;  §  1348,  p.  789. 


GENERAI,  INDKX.  2205 

PARTNERSHIP— Continued. 

Xotice  to   Xunjoining-  partners   where  partner   files  petition,   §   72,   p.   77. 
Whether  partner  may  lile  ordinary  involuntary  petition,  §  75,  p.  78. 
In    partnership    bankruptcies    only    partnership    creditors    to    vote    for    trus- 
tee, §  866,  p.  497. 
Partnership    creditors    competent    to    petition    against    individual    partners, 

§  217,  p.  175. 
As  Petitioning  Creditor  in  firm  name,   §  218,  p.   175. 

Petition  by  one  partner  where  remaining  partner  does  not  join,  §  71,  p.  74. 
Powers  of  Attorney  for,  to  contain  Oath  of  official  capacity,  §  587,  p.  353. 
IMay  be  a  Private  Banker,  §  79,  p.  79. 
Property  of 

Originally  individual  property  becoming  firm  propertj',  §  2235,  p.   1367; 
§  2236,  p.   1367. 
Secret  or  Silent  partners  on   discovery  brought  in,  §   70,  p.   74. 
Selling  of  Partnership  Shares  , 

Where  one  partner  in  insolvent  firm  sells  out  to  other  who  thereafter 

becomes  bankrupt,  §  2269,  p.  1387. 
If   firm   creditors    assent   to   assumption,    they    become    individual    cred- 
itors,  §   2270,  p.   1388. 
W^here  sale  made  to  enable  remaining  partner  to  claim  exemptions,  § 

2271,  p.  1389. 
Retiring  partner  surety  for  remaining  partner,   §   2272,   p.   1390. 
Retiring   partner    entitled   to   subrogation   to    debts   he   pays,    §   2272,   p. 

1390. 
Retiring  partner's  claim  for  purchase   price  of  share,   §  2273,  p.   1391. 
Whether  preferential  transfer  by  partnership  voidable  where  remaining 

partner  alone  in  bankruptcy,   §  2274,   p.   1391. 
Where  one  partner  of  insolvent  firm  sells  out  to  other  and  himself  be- 
comes bankrupt,  §  2275,  p.  1391. 
Where    partnership    interest    transferred    to    third    person,    partner    be- 
coming bankrupt,  §  2276,  p.  1392. 
Subject  to  Involuntary  Bankruptcy,  §   56,  p.   64. 
Suits   for   Dissolution   of,   when    not    superseded   by   bankruptcy,   §    1590,   p. 

963. 
Taxes    of,    in   individual   bankruptcy,    §   2151,   p.    1329. 
Though    nonbankrupt    partner    be    wage    earner    or    farmer,    yet    his    estate 

brought  in,  §  65,  p.  72. 
i\Ia3'  be  Voluntary  bankrupt,  §  39,  p.   56. 

PARTNERSHIP  BANKRUPTCY 

Act  of  one  partner  bars  iirm  discharge  when,  §  2793,  p.   1633. 
Discharge  of  Individual  in 

None  unless  individual  adjudication,  §  2422.  p.  1465. 
Discharge    of   individunl    partner,    where    firm    and   other   partners    not    dis- 
charged, §  2805,  p.  1643. 
Where  firm  alone  adjudicated 

Depletion  of  individual  estate  of  partner,  not  preference,  §  1291,  p.  759. 
Lien  by   Legal   Proceedings  on   individual  member's  property,   not  nul- 
lified,  unless   individual   adjudged   bankrupt,   §   146,1,  p.   867;   §   2266,  p. 
1386. 
No  individual  discharge   of  member,  in.  unless  individually  adjudged  bank- 
rupt, §  279S,  p.  1633. 


2206  GENERAL  INDEX. 

PARTNERSHIP  BANKRUPTCY— Continued. 
Marshaling  of  firm  and  individual  estates 

\Miether    "proceedings    in  "  bankruptc}'    proper"    or    "controversies,"    § 
2867,   p.   1683;   §   2879,  p.   1689. 
Partnership  entitled  to  discharge,   §   2791,  p.   1633. 

Preference  by  individual  member,  not  preference  in,  where  member  nor 
adjudged  bankrupt,  §  1291,  p.  759. 

PARTNERSHIP  DEBTS 

In  Individual  bankruptcy,  see  "Discharge — Of  Partnership  Debts  in  indi- 
vidual Bankruptc}^  of  a  Member." 

PARTNERSHIP   AND    INDIVIDUAL    DEBTS    IN    PARTNERSHIP    AND 
INDIVIDUAL  BANKRUPTCIES 

Partnership  creditors  competent  as  petitioning  creditors  against  Individual 
partner,  §   217,  p.   175. 

PARTNERSHIP  AND   INDIVIDUAL  ESTATES 

See  "Partnership  Bankruptcy." 

See  "Individual  Bankruptcy." 

See  "Distribution — In  Partnership  Bankruptcy." 

See  "Distribution — In  Individual  Bankruptcy." 

PARTNERSHIP  PETITION 

Alleged  but  not  real  partner  in  involuntary  partnership  petition,  whether 
"Adverse  Claimants"  subject  to  Summary  Seizures  of  property,  §  1669, 
p.   1032. 

Defenses  available  to  Nonjoining  Partner 

Insolvency  available,  §  74,  p.  77. 
Jury  on  Issue  of  Insolvency  available,  §  74,  p.  77. 
Not  all  defenses  are  available,  §  74,  p.  77. 
Service  of  process  where  filed  b}^  one  partner,  §  310,  p.  220. 

PARTIES 

On  Appeal  and  Error 

•  See  "Appeal  and  Error — Parties  on." 

PARTITION 

Whether  Trustee  may  maintain  proceedings   for,   §   1711,  p.   1056. 

PART  PAYMENT 

On  account,  insufficient  to   revive  debt,   §  2716,  p.   1606. 

PARTY 

See  "Opposite   Part}-." 

"PARTY  IN  INTEREST" 

Only,  competent   to  petition  for   Setting  Aside   of   Composition,   §   2404,   p. 

1452. 
Creditor   who   has   failed   to   prove    claim   within   year,   included,   §   2808,    p. 

1645. 
Discharge,  party  in  interest   maj-  move   to   revoke,   §   2807,  p.   1645. 
Discharge,  to  oppose  must  be  party  in  interest,  §  2459,  p.  14SS. 
]\Iust    have   been    creditor     at    time    of    bankruptcy,    §    2809,    p.    1645. 


GENERAL  INDEX.  2207 

"PARTY  IN  INTEREST"— Continued. 

Xeed  not  have  proved  nor  have  "provable  claim,"  §  2461,  p.  1488. 
Pecuniary  interest  requisite   to   oppose   discharge,   §    2460,   p.   1488. 
Purchaser  of  discharged  claim  not,   §  2810,  p.  1645. 
Where  simultaneous   bankruptcy  proceedings  pending,   §   297,  p.   215. 

PATENTS 

Pass  to  trustee,  §  958,   p.   536. 

Pending  Applications  for  do  not  pass  to  trustee,  §  959,  p.  537. 

PAYMENT 

Petitioning  Creditor's  Claim,  Payment  of  inefifectual  to  diminish  number 
requisite  for  joining  in  petition,  §   202,  p.   165. 

Recognition,  Enforcement  and  Changes  in  Law^  as  to  Paj-ment  not  a  Del- 
egation of  Legislative  Power,  §  11,  p.   27. 

Trustee  may  Plead,  §  1202,  p.  698. 

PAY-ROLL 

Subrogation  of  persons  advancing  money  to  meet,   §   2184,  p.  1344. 

Whether  to  compete  with  workmen's  own  labor  claims,  §  2279,  p.  1393.' 

PENAL  FINES 

Judgments  for,  not  provable,  §  683,  p.  414. 

PENALTY 

Infliction   of,   for   taking  benefit  of   act   prohibited,   §   474,   p.    306. 
Refusal  of  discharge  is  not  a,  §  2465,  p.  1489. 

PENDING  SUITS  BY  AND  AGAINST  BANKRUPT 
Against  bankrupt,   §   1639,  p.   1010. 

Sta}'    oi,  -see    "Discharge — Staying    Suits    against    Bankrupt    to    Permit 

Interposition  of." 
Subrogation  of  trustee  to'  creditor's   lien,   where  lien  preserved,   §   1639, 
p.   1010. 
By  Bankrupt,  §  1640,  p.  1011. 

Substitution  of  Trustee,   §   1640,   p.   1011. 

See,  also,  "Pending   Suits  by  and  against   Bankrupt — Intervening  of 
Trustee  in." 
Intervening  and  Substitution  of  Trustee  in 

Defendant  not  released  by  failure  of  trustee  to  assume  prosecution,  § 

1644,   p.   1011. 
Does   not   Oust  State   Court,   §   1596,   p.   964. 
Where  Lien  by  Legal  Proceedings  Nullified  by  Bankruptcy,  §  1471,  p. 

874. 
Manner  of  Intervention,  §  1649,  p.   1015. 

Not   usually   proper,   except   where   property  involved,   §    1646,   p.    1012. 
Only  Suits  on  rights  passing  to  trustee,  authorized,  §  1643,  p.  1011. 
Ordering  trustee  to  apply  for  leave  to  defend,  §  1645,  p.  1012. 
Preliminary^  Order  of  Approval  Proper,  §  899,  p.  516;  §  1641,  p.  1011. 
Probability  of  Success  should  appear,  §   1642,  p.   1011. 
State  Courts  will  administer  bankruptcy  law,  §  1597,  p.  964. 
State  Court  governed  by  State  law,  and  Judicial  Policy,  in  granting  or 
refusing  application,   §   1648,   p.   1013. 


2208  GE;NE:RAr,  index.  | 

PENDING  SUITS  BY  AND  AGAINST  BANKRUPT— Continued. 

Stay  of  Pending  suit,  §  IGJl,  p.   1015. 

Intervening  in   Suits   in   personam,   §   1647,   p.   1013. 

Trustee  not  confined  to   rights  accorded  by   State   Law,   §   1597,   p.   964. 

Trustee  bound  as  any  otiier  litigant,  on  intervention,  §  1650,  p.   1015. 

PERCENTAGE 

See    "Greater    Percentage." 

PERISHABLE  ASSETS 

Receivers  may  sell,   §   386,  p.  254. 

Sale  of,  may  be  Without   Notice,  §   1942,  p.   1212. 

"PERISHABILITY" 

Meaning   of,   §    1944,   p.    1212. 

"PERMIT" 

Meaning  of  Term  as  Act  of  Bankruptcj-,  §  107,  p.  105. 

PERSONAL  INJURIES 

Judgments  for,   provable,   §   680,   p.   413. 

Payments  or  other  transfers  of  claims  for,  not  preferences,  §   1309,  p.  767. 

Rights   of  Action   for,   do   not    pass,   §   1020,  p.   569. 

PERSONS  SECONDARILY  LIABLE 

See  "Sureties  and  Guarantors." 

PERSONAL  SKILL  OR  CONFIDENCE 

Uncompleted   contracts   involving,   do   not   pass   to   trustee,   §  994,   p.   554;   § 
1021,    p.    570. 

"PERSONAM" 
Judgment  in 

See  "Judgment  in  Personam." 

PETITION 

For  adjudication,  see  "Bankruptcj^  Petition." 

For  Confirmation  of  composition,  §  2363,  p.  1434. 

For  Discharge,  see  "Discharge — Petition  for." 

See  "Involuntary  Petition." 

See  "Voluntary  Petition." 

For  Redeeming  from  Liens,  §  1869,  p.   1162. 

For  Reclamation,  Surrender  or   Redelivery,  §  1876,  p.   1164. 

For  Restraining  Order 

To  be  Filed  in  bankruptcy  proceedings  themselves,  §  1919,  p.  1195. 

Notice  to  be  given,  §   1921,  p.   1196. 

Notice  dispensed  with  for  good  cause,  §   1921,  p.   1196. 

Requisite,   to    obtain   restraining   order,    §    1919,   p.    1195. 

To  be  verified,   §  1920,  p.   1196. 
For  Review 

"Allowance"  of  not  requisite,  §  2947,  p.  1722. 

Delay,  when  excusable,  §  2995,  p.  1737;  §  2996,  p.  1737. 

Dismissed  for  laches,  §  2994,  p.  1736. 

Filing  of  requisite,  §  2947,  p.  1722. 


GENERAL  INDEX.  2209 

PETITIONS— Continued. 

Issue  on  which  erroneous  order  made,  how  far  to  be  set  forth  in,  §  2949, 
p.  1722. 

No  Express  time  for,  §  2993,  p.  1736. 

Order   Complained  of  to  be  set  forth  in,  §  2948,  p.   1722. 

Procedure  on,  §  2946,  p.  1721. 
For  Review  of  Referee's  Order 

Requisite,   §  2846,  p.   1662. 

Errors  Complained  of  to  be  set  forth,  §  2847,  p.  1662. 

New  facts  may  not  be  set  up  changing  case,  §  2848,  p.  1662. 

Should  pray  for  review  of  referee's  Order,  §  2849,  p.  1663. 

Time  limited  for  filing,  §  2851,  p.  1663. 

To  be  Filed  with  Referee,  §  2850,  p.  1663. 
For  Revocation  of  Discharge,  §  2822,  p.  1649. 
To  Sell,   §   1931,   p.   1207. 

See  "Sale  in  B*ankruptcy." 
To   Set  Aside   Composition,   §   2406,   p.   1453. 
For  Summary  Order  on  Bankrupts  and  Others,  §  1837,  p.  1129. 

PETITIONING  CREDITORS 

Adjudication  not  res  adjudicata  as  to  amount  or  A'alidity  of  claim  of,  §  447, 
p.  291;  §  790,  p.  463. 

Attorneys'  fees  of,  see  "Attorneys'  Fees  in  Bankruptcy  Proceedings — Peti- 
tioning Creditors'  Attorneys'  Fees."' 

Burden  of  Proof  of  partnership  rests  on.  §  63,  p.  69. 

Costs  and  Expenses  of  Receivership  taxable  against,  §  398,  p.  259. 

Dismissal  of  Involuntary  Petition,  none,  if  any  petitioning  creditor  objects, 
§  422,  p.  271. 

How  many  must  join,  etc.,  see  "Parties  in  Involuntary  Proceedings." 

Returning  Preliminary  Deposit  to,  §  2015,  p.  1252;  §  2023,  p.  1257. 

Schedules  to  be  prepared  by,  if  bankrupt  fails  to  file  same,  §  478,  p.  309. 

"PIECE  WORKERS" 

Entitled  to  Priority,  §  2175,  p.  1340. 

PLEADINGS 

All  pleadings  of  fact  to  be  verified,  §  26,  p.  41  n. 
Specifications  in  opposition  to  discharge  are,  §  2583,  p.  1549. 

PLEADINGS  BEFORE  REFEREE 
See  "Referee  in  Bankruptcy." 

See  "Summary  Orders  on  Bankrupts  and  Others." 
See  "Marshaling  of  Liens." 
See  "Sales  in  Bankruptcy." 

PLEADING  AND  PRACTICE 

All  essential  facts  of  jurisdiction  and  cause  to  be  pleaded,  §  239,  p.  185. 
Allegations  in  mere  w^ords  of  statute,  §  255,  p.  191;  §  2608,  p.   1558. 
Alternative  or  disjunctive  allegations  improper,  §  256,  p.  192;  §  2609,  p.  1561. 
Argumentative  pleading,  §  2603,  p.  1555. 

"Certainty  of  Indictment,"  when  to  be  pleaded  with,  §  2G05,  p.  1558. 
Confirmation  of  composition,  in   code  states,  pleadable  as  "discharge   duly 
made,"  §  2349,  p.  1427. 

2  Rem  B— 64 


2210  GENERAI,  INDDX. 

PLEADING  AND  PRACTICE— Continued. 

On  Discharge,  see  "Discharge — Pleading  and  Proof  of." 

Evidence  not  to  be  pleaded,  §  254,  p.  191;  §  2606,  p.  1558. 

Exemptions — contests  as  to — what  pleadings  necessary,  §   1083,  p.   614. 

Facts,  not  legal  conclusions  nor  evidence,  to  be  pleaded,  §  252,  p.  191;  §  254, 

p.  191;   §  2607,   p.   1558. 
Facts  not  to  be  alleged  argumentatively,  §  253,  p.  191. 
Facts   to   be   set   forth   definitely   and   certainly,   §   257,   p.   192. 
Indefiniteness,  §  257,  p.  192;  §  2603,  p.  1555;  §  2604,  p.   1557. 
Joinder 

Of  acts  of  bankruptcy,  §  249,  p.   189. 
Of  grounds  of  opposition  to  discharge,  §  2599,  p.  1554. 
Of  objections  to  claims,  §  832,  p.  482. 
Legal  Conclusions  not  to  be  pleaded,  §  252,  p.  191;   §  1767,  p.   1075;  §  2607, 

p.  1558;  §  2608,  p.  1558. 
See  "Marshaling  of  Liens." 

In  Marshaling  of  Liens  upon  Property  in  Custody  of  Bankruptcy  Court 
Form  of  setting  up  lien,  §  1894,  p.  1184;  §   1985,  p.  1230. 
Where  rights  under  state  statute   dependent  on   resort  to  special  reme- 
dies, §  1897,  p.  1186. 
Rights  of  priority  under  State  statutes  as  related  to  marshaling  of  liens 

on  property,  §  1898,  p.  1186. 
"Surrender   of   Preference"    on    distinct    transaction    not    to   be    required 
as  prerequisite  to  validity  of  lien  which  itself   is   not  a,  preference,  § 
1899,  p.  1187. 
Multifariousness  in  petition,  §  250,  p.  189. 

On    Opposition    to    Discharge,    see    "Discharge — Opposition    to — Specifica- 
tions." 
Petition  in  bankruptcy  a  pleading,  and  to  conform  to  usual  rules,  §  251,  p. 

191. 
Pleadings  in  bankruptcy  to  be  according  to  usual  rules,  §  239,  p.  185. 
In  Plenary  Actions  against  adverse  Claimants 
Nature  of,  §  1725,  p.  1063. 

Receivers  may  be  appointed,  §  1726,  p.  1063. 
Writs  of  injunction  issuable,  §  1727,  p.  1064. 
Retransfer   or   surrender   of   choses   in   action   may   be    ordered,   §   1728', 

p.  1064. 
Trustee  not  confined  to  suits  in  equit}^,  and  in  proper  case  may  sue  at 

law  for  recovery  of  property  or  its  value,  §  1729,  p.  1064. 
Should   sue  at   law  unless   remedy  inadequate,   §   1730,   p.   1064. 
To  Set  Aside  Fraudulent  Transfers 

Petition  to  show  inadequacy  of  assets,  §  1731,  p.  1064. 

Return    of    execution    unsatisfied,    not    always    prerequisite,    §  '1732, 

p.    1065. 
Insolvency   not   necessary   where   actual    intent   to    defraud   proved, 

§  1733,  p.   1067. 
"Insolvency"   here   means   inadequacy   of  _  assets,   not   mere    inability 

to  pay  "in  due  course,"  §  1734,  p.  1067. 
Allowance   of   claim,   subrogation   and  reimbursement   of  transferee 
on   setting   aside   constructively   fraudulent   transfer,   §    1734J/2,   p. 
1067. 
Pleadings  to  show  trustee's  representative  capacity,  §  1735,  p.  1068. 


GEXERAL  INDEX.  2211 

PLEADING  AND  PRACTICE— Continued. 

Trustee   presumed   to   represent   creditors   and   to   be   authorized   to 

act,  though  no  claims  proved,  §  1736,  p.  1068. 
Tender  of  actual  consideration  paid,  not  necessary,  §  1737,  p.  1069. 
Whether  transfer  voidable  only  as  to  some  creditors,  nevertheless, 

avoided  as  to  all,  §  1738,  p.  1069. 
Charging  same  transaction  in  alternative,  fraudulent  or  preferential, 

not  inconsistent,  §   1739,  p.  1069. 
All   matters  proper  in   creditor's   bill,  proper   here,   §   1740,   p.   1070. 
Both   bankrupt   and   transferee    in   fraudulent   transfer   proper   par- 
ties, though  bankrupt  and  intermediate  transferee  not  necessary, 
§   1741,  p.   1070. 
Several    acts    committed    with    common    design,    joinable,    §    1742, 

p.    1070. 
Property  to  be  shown   to  belong  to  estate,   §   1743,   p.   1070. 
Fraiidulent  intent  to  be  alleged  and  proved,  §  1744,  p.  1071. 
Fraud,  a  question  of  fact,  §  1745,  p.  1071. 
Burden  of  proof,  §  1746,  p.  1071. 
Schedules     and     general     examination     of     bankrupt     inadmissible 

against   transferee,    §   1747,   p.   1071. 
Appraisal    in    bankruptcy    inadmissible    against    transferee,    §    1748, 

p.   1071. 
Declarations  of  transferrer  after  transfer,  §  1749,  p.  1071. 
Failure  to  produce  important  and  accessible  evidence,  presumption 

of  fraud,  §  1750,  p.   1072. 
Existence  of  other  creditors  at  time  of  transfer    to  be  shown,   im- 

less,  §  1751,  p.  1072. 
Collateral   attack   on   collusive   receiverships,   §   1752,   p.    1072. 
Suing  in    U.    S.    District   Court,    suit   follows   usual    course,    §    1753, 

p.    1072. 
Allegation  of  Diverse   Citizenship  not  requisite,   §   1754,  p.   1073. 
Service  on  nonresidents  when   suit  in  U.   S.   District  Court,  §   1755, 

p.    1073. 
Security  for  costs  and  injunction  bond  when  suit  in  U.  S.  District 

Court,  §  1756,  p.  1073. 
Answering   under    Oath    requiring   testimony   to   overcome,    §    1757, 

p.  1073. 
If  suit  in  U.  S.  District  Court,  part}'  not  to  impeach  own  witness, 

§  1758,  p.   1073. 
State   statutes  permitting  cross-examination   of  adverse  party,   etc., 

not  followed  in  U.  S.  Court,  §  1759,  p.  1073. 
Where  trustee  sues  in  State   Court,   suit  follows  usual  course  and 

I-virtics  have  usual  rights,  there,  §  1760,  p.  1074. 

To  Set  Aside  and  Recover  Preferences 

Representative  capacity  of  trustee  to  be  alleged,  §   1761,  p.   1074. 

Trustee  presumed  to  represent  creditors  and  to  be  authorized  to 
act   though    no   claims   proved,    §    1736,    p.    1068. 

See,  also,  "Pleadings  and  Practice,  in  Plenary  Actions  against  Ad- 
verse Claimants  to  Set  Aside  Fraudulent  Transfers." 

Each  element  of  preference  to  be  alleged  and  proved,  §  1762,  p. 
1074. 

Insolvency  at  time  of  transfer,  §   1763,  p.   1075. 

Reasonable  Cause  of  Belief,  §   1764,  p.  1075. 


2212  GENERAL  INDEX. 

PLEADING  AND  PRACTICE— Continued. 

Effect    of   transfer   to    give   greater   percentage    of   debt,    §    1765,   p. 

1075. 
Antecedent  Debt,   §   1766,  p.   1075. 
Facts,   not   evidence,   nor   legal    conclusions,    to   be   pleaded,    §   1767, 

p.    1075. 
Burden  of  proof  of  each  element  on  trustee,  §   1768,  p.   1076. 
Demand  not  requisite,  §  1769,  p.   1076. 
Nor  tender  back,   §   1770,  p.  1076. 
Procedure   on   Summary  petitions   against   bankrupts   and   other,    §    1831,   p. 

1126. 
Revivor  of  Debt  by  New  Promise,  how  to  be  pleaded,  §  2728,  p.   1608.- 

In  Selling  Free  from  Liens 

See   "Sales   in   Bankruptcy — Selling   Free   from   Liens." 
Separately  stating  each  ground  of  opposition  to  discharge,  §  2600,  p.  1554. 
See  "Summary  Orders  on  Bankrupts  and  Others." 
See  "Summary  Proceedings." 

Ultimate  facts  to  be  pleaded  not  evidence,  §  254,  p.  191. 
What  are  "Summary  Process"  and  "Summary  Proceedings,"  §  1832,  p.  1J26. 

PLEDGE 

Actual,  but  voidable  sale,  disguised  as,  §  1228,  p.  726. 

Of   Life   Insurance   Policy,    interest   of   bankrupt   passes    to   trustee,   §    1006, 

p.  560. 
Included  in   term  "transfer,"   §   1332,   p.   780. 
Sale  by  pledgee  not  enjoined  unless  fraud  or  oppression  exists,  §   1913,  p. 

1192. 
Setting  apart  or  delivery  sufficient  to  pass  title,  §  1146,  p.  676. 
Surplus   of  collateral  applied  by  pledgee  on  other  claim,  when  preference, 

§   1298,  p.   763. 

PLEDGEE 

Sale  by,  not  restrained,  unless  fraud  or  oppression  exists,  §  1913,  p.  1192. 

PLENARY  ACTION 

Adverse  Claimants  in  possession,  entitled  to,  §  1796,  p.   1089. 

Debtors  of  bankrupt  entitled  to,   §   1796,  p.   1089. 

Referee  no  Jurisdiction  to  Enterlain,  §  545,  p.  333;  §  1695,  p.  1094. 

PLENARY   ACTION   BY  TRUSTEE 
Against  Adverse  Claimant 

Nature   of,   §   1725,   p.   1063. 

Receivers    appointed,    §    1726,   p.    1063. 

Retransfer  or  Surrender  of  Ch'oses  in  Action  ordered  in,  §  1728,  p.  1064. 

Writs   of  Injunction   and   Sequestration   issuable   in,   §   1727,   p.    1064. 

In  State  Courts 

To  recover  assets  transferred  contrary  to  Bankruptcy  Act,  presents 
"Federal    Question,"    reviewable    by    Supreme    Court,    §    3026,    p. 
1749. 
Before  Amendment  of  1903  not  to  be  brought  in  bankruptcy  court,  §  1653, 

p.    1023. 
Defendant's  Offset  exceeding  trustee's  claim,  no  Judgment  against  Trustee 
for  Fxcess,  §  1187,  p.  694. 


GEXERAI,  INDEX.  2213 

PLENARY  ACTION  BY  TRUSTEE— Continued. 

To  Recover  Preferential  and  Fraudulent  Transfers,  may  be  brought  in 
Bankruptcy   Court,   §   1688,   p.   1039;   §   1690,   p.   1041;   §   1723,   p.   1062. 

To  Recover  Debts  not  to  be  brought  in  bankruptcy  court,  §  1694,  p.  1043. 

Not  Confined  to  Suits  in  Equity,  and  in  proper  case  may  sue  at  law  for 
recovery  of  property  or  its  value,   §   1729,  p.   1064. 

Should  sue  at  law  unless  remedy  inadequate,   §  1730,  p.   1064. 

Suing  in   U.  S.   District  Court,  suit  follows  usual  course,   §   1753,  p.   1072. 

Allegation   of  diverse  citizenship  not  requisite,  §   1754,   p.   1073. 

Service  on  Nonresidents  when  suit  in  U.  S.  District  Court,  §  1755,  p.  1073. 

Security  for  costs  and  injunction  bond  when  suit  in  U.  S.  District  Court, 
§   1756,  p.   1073. 

Answering  under  oath  requiring  testimony  to  overcome,  §  1757,  p.  1073. 

If  suit  in  U.  S.  District  Court,  party  not  to  impeach  own  witness,  §  1758, 
p.    1073. 

State  statutes  permitting  cross-examination  of  adverse  party,  etc.,  not  fol- 
lowed, §  1759,  p.  1073. 

Trustee  suing  in  State  Court,  suit  follows  usual  course  and  parties  have 
usual  rights  there,  §  1760,  p.   1074. 

Limitation  of,  see  "Limitation  of  Actions." 

"Controversies,"  and  not  "Bankruptcy  Proceedings"  Proper,  §  2874,  p.  1686. 

In  U.  S.  District  Court,  Appealable,  as  "controversy,"  §  2927,  p.  1714. 

Limitation   of,  §  1789,  p.   1083. 

PLENARY  JURISDICTION  OF  BANKRUPTCY  COURT 

None  over  adverse  claimants  before  amendment  of  1903,  §  1653,  p.  1023. 
Tn  certain  cases  conferred  by  the  amendment  of  1903,  §  1688,  p.  1039. 
See  "Plenary  Action  by  Trustee  against  Adverse  Claimant." 

POSSESSION 

Constructive,  "Custodia  legis,"  §   1807,  p.  1107. 

Of  Exempt  property,  see  "Exemptions — Jurisdiction   over." 

Of  Res,  test  of  summary  Jurisdiction,  §  1796,  p.  1088;  §  1807,  p.  1101. 

Taking  of 

After-acquired  property.  §   1238,  p.  735. 

Curing  lack  of  Record,  §  1236,  p.  734,  §  1384.  p.  812. 

Whether  Lien  Begins  at  Date  of,  or  Reverts,  determined  by  State  law, 
§    1237,  p.   735. 

Preferences   as   Affected   by,   within    four    months,   under   unfiled   mort- 
gages, or  mortgages  covering  after-acquired  propert}^   §  1384,  p.  812. 

POSTPONING 

Allowance  oi  claims.  §  816,  p.  475;  §  864,  p.  496. 
Election  of  trustee,  §  863,  p.  496. 

None  of  discharge  hearing  to  await  outcome  of  fraudulent  conveyance  suit, 
§    2656,    p.    1578. 

POVERTY  AFFIDAVITS,  §  287,  p.  206. 
"False   oath"  in,  §  2528,   p.   1524. 
Showing  Demanded  in  addition  to,  §  288,  p.  206. 

"POWERS" 

Exercisable  for  bankrupt's  own  benefit  pass  to  trustee,  §  960,  p.  537. 
Not  Exercisable  for  bankrupt's  benefit  do  not  pass,  §  961,  p.  537, 


2214  CliNlJKAI,  INDliX. 

POWER  OF  ATTORNEY 

Creditor  may  act  by,  §  583,  p.  350. 

For  Corporations  and  Partnerships  to   contain   oath   of  official   capacity,   § 

587,   p.   353. 
Written,  requisite  to  vote,  §  584,  p.  351. 
Written,   not   requisite   for   attorney   at   law   in    other   matters   than   voting, 

§  585,  p.. 352. 

PRACTICE  BEFORE  REFEREE 

See  "Referee  in  Bankruptcy." 
See  "Pleading  and  Practice." 

PRAYER 

Involuntary  petition  must  contain   prayer  for   adjudication,   §  276,  p.   202. 

PRAYER  FOR  REVERSAL 

Record  on  appeal  must  show,  §  2970,  p.  1729. 

"PRECEDING  SIX  MONTHS  OR  GREATER  PORTION  THEREOF" 

Defined,  §  34,  p.  54. 

PRE-EXISTING   DEBT 

Creditor's   claim   must   be,   as   preference,   §    123,   p.    111. 

PREFERENCES 

As  act  of  Bankruptcy,  see  "Acts  of  Bankruptcy — Preferences  as." 
Artisans'  liens  are  not,  §  1158,  p.  683. 

Assignment  as  act  of  bankruptcy  need  not  work  preference,  §  149,  p.  129. 
Definition  of,  §  1276,  p.  754. 

"Preferences,"   "voidable  preferences"   and   "preferences"  that  are   "acts   of 
bankruptcy,"   to   be    distinguished,   §    1277,   p.   755;   §   1383,   p.    812;   §    1394, 
p.   821. 
Elements  of — Appropriaticn  of  Assets  and  Depletion  of  Insolvent  Fund 
Implied,  §   1278,  p.  756. 

Entirely  fictitious  transactions,  §  1279,  p.  756. 
Performance  of  labor  in  payment  of  debt,  §   1280,  p.  757. 
Liens  given  within  four  months  in  fulfillment  of  promise  made  before, 

§  1281,  p.  757. 
No  preference  by  "judgment"  unless  judgment  operates  to  create  lien 

or  otherwise  to  appropriate  property,   §   1282,  p.   757. 
Giving   of   check    or   note   not   preference,   but   paying   of   it   is,    §    1283, 

p.  757. 
Payment  actually  made  not  to  be  applied  to  evade  preference  statute,. 

§  1284,  p.   758. 
Payment  by  bankrv^pt  of  own  note  discounted  by  creditor,  a  preference, 

§  1285,  p.  758. 
Return   of  Loan  made  for   specific  purpose,  not  preference,   §   12S6,  p. 

758. 
Discounting  of  bankrupt's  note,  not  preference,   §  1287,  p.   758. 
Transfers  of  or  liens  on  property  that  might  have  been  claimed  exempt 

but  not  claimed,  §   1293,   p.   700. 
Property  transferred  to  be  such  as  otherwise  would  have  belonged  to 

estate.  §  1294,  p.  760. 
Mere  exchanges  of  property,  changes  in  form  and  transfers  based  on- 
present  consideration,   not  preferences,   §    1295,   p.   760. 


GENERAI.  INDEX.  2215 

PREFERENCES— Continued. 

Xct  result- after  becoming  insolvent  and   within  four  months,   the  test, 

§  1296,  p.  761. 
Deposits  in  Bank  subject  to  check,   §  1297,  p.   762. 
Surplus   of   Collateral   Applied   by    Pledgee   on   other   claims,   §   1298,   p. 

763. 
Any  kind  of  property  may  be  subject  to  preferences,  §  1299,  p.  763. 
Any  method  of  depleting  assets,  sufficient:   indirect  preferences,  §  1300, 

p.  763. 
Purchaser    from  bankrupt  using  purchase  price  to  pay  ofif  preferential 

liens,  §   1301,  p.   764. 
Return  of  goods  to  seller  where  no  right  of  rescission  exists,  prefer- 
ence, §   1302,  p.   764. 
Transfers  to  indemnify  sureties  and  other  indirect  preferences,  §   1303, 

p.  764. 
Creditor  selling  claim  to  effect  preference,  by  purchaser  using  claim  to 

offset  purchase  price,  §  1181,  p.  692;  §  1303,  p.  764  n. 

Elements  of — Application  on  Claim  of  a  Creditor 

Implies   application  upon  a   creditor's   claim,   §   1304,  p.  766. 

If  claim  fraudulent  or  fictitious,  transfer  not  preference,  §  1305,  p.  766. 

Paying  off  liens  on   exempt  property — when  not  preference,   §   1306,  p. 

766. 
Return  of  Goods  to  seller  where  right  of  rescission  exists,  not  prefer- 
ence, §   1307,  p.   766. 
One   benefited   must   hold   provable   claim,   else    not   preference,   §    1308, 

p.  767. 
Payments    or   other   transfers    on    claims    for   personal   injury,    etc.,   not 

preferences,   §   1309,  p.   767. 
Payments  or  other  transfers  enuring  to  benefit  of  sureties,  endorsers, 

etc.,  of  bankrupt,  even  before  principal's   default  or  before  payment 

by  sureties — preferences,  §  1310,  p.  767. 
Payment   or   other-   transfer   to   present   owner   of   claim,    preference   to 

both   present   owner   and    also    to    transferrer,   if   transferrer    remains 

bound  as  surety  or  endorser,  §  1311,  p.  767. 
Partner  selling  out  to  remaining  partner,  not  preference   to  individual 

creditor,  §   1312,  p.   769. 
When  stock  broker's  customer  becomes  "creditor,"  §  1313,  p.  769. 

Elements  of — Antecedent  Debt 

Creditor's   claim   must   have   been   pre-existing   debt,    §    1314,   p.   770. 

Cash  transactions  not  preferences,   §  1315,  p.   773. 

Bona  Fide  Sales,  whether  for  cash  or  on  credit,  not  preferences,  §  1316, 

p.  773. 
Payment  of  current  rent,  not  preference,   §  1317,  p.  773. 
Payment  of  interest  in  advance  not  preference,  §  1318,  p.  774. 
Present  transfers   to   secure   future   advances,   not   preferences,   §   1319, 

p.  774. 
Mere   Exchanges   of  Property   or  Security,   not   preferences,   §   1320,   p. 

774. 
But  if  new  securities  exceed  value  of  old,  preference  arises,  §  1321,  p. 

775. 
If  securities  remain  same  but  indebtedness  secured  mcreased  by   ante- 
cedent debts,  preference  as  to  antecedent  indebtedness,  §  1322,  p.  776. 


2216  ge;ne;rai,  index. 

PREFERENCES— Continued. 

If  securities  and  debt  both  increased  but  increase  of  debt  be  for  present 
consideration  no  preference  arises,  §  1323,  p.  776. 

Withdrawal  of  old  security  and  substitution  of  new  must  be  contempo- 
raneous,  §    1324,   p.    776. 

Payment  of  secured  debt,  thereby  releasing  securities,  §   1325,  p.  776. 

Liens  or  other  transfers,  partly  on  present  consideration,  partly  on 
past,  not  wholly  void  but  valid  pro  tanto,  §  1326,  p.  777. 

Protection  of  Liens  Given  on  Presently  Passing  Consideration,  etc., 
§  1327,  p.  777. 

Elements  of — "Transfer,"  or  "procuring"  or  "suffering"  of  judgment 

Requisite,  §  1328,  p.   777. 

Voluntary    Action    of    Debtor    Requisite    to    Preference    by    way    of 

"Transfer,"  §  1329,  p.  778. 
Definition  of  "transfer,"  §  1330,  p.  779. 
Payments  of  Money  "transfers,"  §  1331,  p.  779. 
"Transfer"  includes,  also,  pledge,  mortgage,  gift,  security,  etc.,  §   1332, 

p.  780. 
Performance  of  labor,  not  "transfer,"  §  1333,  p.  781. 
When    "transfer"    consummated,    where    recording    "required,"    §    1334, 

p.  782. 
"Procuring  or  Suffering"  judgment,  §   1335,  p.  782. 
Warrants  of  attorney  to  confess  judgment,  continuing  consents,  §  1336, 

p.  783. 
Debtor's    Voluntary    Action    not    Implied    in    Cases    of    Preferences    by 

way  of  Judgments,  §  1337,  p.  783. 
Payment  of  Proceeds  of  Execution  Sale  to  Creditor  Sufficient  without 

debtor's  Voluntary  Action,  §  1338,  p.  784. 

Elements  of — Debtor's  Intent  to  Apply  on  Debt 

Intent  of  debtor  to  apply  on  debt  requisite,  §  1339,  p.  784. 

Intent   to   apply    on    debt    distinguished   from    intent   to   prefer,    §    1340, 

p.  784. 
Bankrupt's  deposit  in  bank,  where  no  understanding  for  application  on 

debt,  not  preference,   §   1341,   p.   784. 

Elements  of — Insolvency 

Insolvency  of  Debtor  requisite,  §   1342,  p.   785. 

Definition   of   Insolvency  under  present  Act,  §   1343,  p.   786. 

Property  fraudulently  disposed  of,  not  to  be  counted  as  assets,  §  1344, 

p.  787. 
But  equity  of  redemption  counted,  if  fraudulent  conveyance  be  by  way  of 

security,  §  1345,  p^.  788. 
Property    preferentially    conveyed    as    security    not    to    be    excluded,    § 

134G,  p.  788. 
Exempt   property   counted,   §    1347,   p.   788. 

Partnership  not  insolvent,  unless  all  partners  insolvent,  §   1348,  p.  789. 
Property   to  be  taken   at  "fair  valuation,"   §   1349,   p.   789. 
"Fair  Valuation"  not  value  at  sacrifice  sale,  §  1350,  p.  789. 
Market  value,  as   "fair  valuation,"   §   1351,   p.   789. 
"Fair  valuation"  where  bankrupt  is  a  "going  concern"  is  not  "scrap"  nor 

"Wrecker's"  Value,  §  1352,  p.  790. 
"Fair   valuation"   of   choses   in   action   and   intangible   property,    §    1353, 

p.    790. 


GENERAL  I^TDEX.  2217 

PREFERENCES— Continued. 

Admissions  of  Insolvenc}''  bj^  Bankrupt  not  Competent  against  cred- 
itor,  §   1354,  p.   791. 

Bankrupt's  Books  admissible,  §  1355,  p.  791. 

Schedules  inadmissible  against  preferred  creditor,  §  1356,  p.  791. 

Inventory  and  •  Appraisement  in  Bankruptcj',  whether  Admissible,  § 
1357,  p.   791. 

Whether  sale  by  receiver  in  State  Court  or  bj-  trustee  in  bankruptcy, 
competent,  §  1358,  p.   792. 

Referee's  allowance  of  claims,  whether  admissible,  §  1359,  p.  792. 

Admissions  of  Agent,  as  to  Insolvency  of  Principal,  §  1364,  p.  793. 

Return  of  Execution  unsatisfied,  whether  prima  facie  proof  of  insol- 
vency,  §   1361,  p.   793. 

Adju'lication  of  Bankruptcj'-  as  Res  x\djudicata  on  Question  o^  In- 
solvency, §  1362,  p.  793. 

Ordinary  Rules   Apply  in  proof  of  insolvency,   §   1363,   p.   793. 

Date  of  Insolvency  and  "fair  Valuation,"  Date  immediatel}'  preceding 
Transfer,  §  1364,  p.  793. 

Debts  owing  but  not  yet  due  included  in  Bankrupt's  liabilities,  §  1365, 
p.  794. 

Whether    contingent    liabilities    counted    in    determining    insolvencj",    § 
136G,  p.  794. 
Elements  of — "Within  four  months"  > 

Must   be   obtained   "within    four   months,"   §    1367,    p.    794. 

Preferences   obtained   before   four  months,   not  voidable,   §   1368,   p   794. 

Nature  of  limitation,  §  1369,  p.   795. 

Agreements  fpr  liens  not  effective  until  within  four  months,  voidable, 
§  1370,  p.  795. 

"After-acquired  property"  taken  possession  of  bj^  mortgagee  within 
four  months,  §  1371,  p.  800. 

Equitable  liens  not  requiring  to  be  recorded,  good,  §  1372,  p.  800. 

State  law  governs  as  to  time  agreements  for  liens,  and  taking  of 
possession  or  recording  take  effect  as  liens  or  other  transfers,  § 
1373,    p.    802. 

Mere  exchanges  of  property  of  equal  value  within  four  months,  not 
preferences,   §    1374,    p.    802. 

Four  months — how  computed;  §  1379,  p.  803. 

Preferences  made  before  bankruptcy  act  passed,  voidable,  §  1376,  p. 
803. 

Preferences  made  after  filing  petition  if  before  adjudication,  §  1377, 
p.    803. 

After    adjudication,    no    preference,    §    1378,    p.    803- 

Preferences   as   affected   by  recording,   §   1379,   p.   803. 

Where  recording,  etc.,  not  "required,"  preference  dates  from  actual 
transfer,   §    1380,   p.    808. 

Whether,  where  not  "required"  preference  dates  from  taking  of  no- 
torious  and   exclusive,   etc.,   possession,   §   1381,   p.   808. 

Where  "required"  only  as  to  bona  fide  purchasers  and  encumbrancers, 
§   1382,   p.   810. 

Where  State  law  does  not  "require"  recording,  but  merely  "permits" 
it,    §    1383,    p.    810. 

Preferences  as  afifected  by  taking  possession  within  four  months  under 
unfiled  mortgages  or  mortgages  covering  after-acquired  property, 
§  1384,  p.  812. 


2218  GENERAL  INDEX. 

PREFERENCES— Continued. 

Elements    of — "Greater   Percentage" 

Alust    give    creditor    greater    percentage    than    others    of    same    class,    § 
1385,    p.    815. 

If  no  net  decrease  of  indebtedness  during  four  months,  no  preference,. 
§    1-386,   p.    816.' 

Who  are  in  "same   class,"  §   1387,  p.  816. 

Preferences  among  priority  creditors,  §  1388,  p.  819. 

Actual  receipt  of  like   percentage   by  other   creditors   not   essential    to 
exoneration  from  charge  of  preference,  if  enough  left,  §  1389,  p.  819. 

Modes   of  proving  this   element,    §   1390,   p.   820. 

Transfers    not -necessarily   to    creditor   nor   agent   if   benefit   accrues    ta 
creditor,  §  1391,  p.  820. 

But  either  actual  receipt  or  actual  benefit  requisite,  §   1392,  p.   820. 
Elements    of — "Reasonable    Cause    of    Belief" 

Creditor    must    have    had    reasonable    cause    to    believe    preference    in- 
tended,  else  preference  not  recoverable,  §   1395,  p.   822. 

Existence  of  Reasonable   cause,   cjuestion   of  fact,   §   1396,  p.   823. 

Preferential   transfer   not   necessarily  fraudulent,   §   1397,   p.   825. 

Creditor   need   not   actually  know,   nor   actually  believe,   §   1398,  p.   826. 

Sufficient    if    circumstances    such    as    to    raise    inference    of    belief    on 
creditor's  part,  §   1399,  p.  826. 

Cause    for    belief    not    simply    that    preference    given,    but    intended,    § 
1400,    p.    828. 

Beb'ef  of  existence  of  intent  may  be  presumed,  §  1401,  p.  828. 

Reasonable   cause  for  belief  of  insolvency  requisite,   §   1402,  p.  830. 

Also   of  all   other   elements   of  preference,   §   1403,   p.   830. 

Reasonable    cause    for    belief   preference    Intended    involves    reasonable 
cause    for    belief    debtor    knew    his    insolvency,    §    1404,    p.    831. 

Whether  intent  of  bankrupt  to  prefer  need  be  shown,   §  1405,  p.   832. 

At   any   rate    existence    of   actual   intent    to   prefer,   proved   by    circum- 
stantial  evidence,  or  by  presumptions,  §   1406,  p.   834. 

Mere   cause  to  suspect  debtor's   insolvency  not  enough,   §   1407,   p.   834. 

Mere  giving  of  unusual  security  insufficient,   §   1408,  p.   835. 

Mere  nonpayment  of  claim  long  past  due,  or  frequent  duns  or  broken 
promises,   not  sufficient,   §   1409,   p.   835. 

Failure   to   investigate   no   excuse   where   facts    sufficient    to   put   on   in- 
quiry, §  1410,  p.  836. 

Cause  for  belief  not  necessarily  that  of  person  receiving — maj'  be  that 
of  person  benefitted,   §   1411,  p.   837. 

Agent's   knowledge   imputed   to   principal,   §   1412,   p.    838. 

Except  when  agent  acting  for  his  own  interest,  §  1413,  p.  838. 

Whether    public    corporations    chargeable    with    "reasonable    cause    for 
believing,"  §  1414,  p.  838. 
Exemptions,  whether  allowed  out  of  preferences   recovered  from  creditors. 
§    1095,    p.    619. 

Indirect 

Creditor  selling  claim  to  effect,  by  purchaser  using  claim  as  oflf-set  to 

purchase  price,  §   1181,  p.  692. 
See  "Preferences — First  Element." 

Any  method   of  depleting  assets,   sufficient   to   constitute  preference,   § 
1300,    p.    763. 
By  Individual  partner  not  voided  by  bankruptcy  of  firm,  §  2265,  p.  1386. 


GENERAL  INDEX.  2219 

PREFERENCES— Continued. 

"Innocent"  preferences,  before  amendment  of   1903,   §   1426,   p.  845. 

Off-sets  to,  §   1427,  p.  846  n. 
Landlords'  lien  is  not  a  preference,  §  1160,  p.  683. 
Liverymen's  lien  is  not,  §  1158,  p.  683. " 
Lien  by  Legal  Proceedings  need  not  create,  in  order  to  be  nullified  under 

§    67    "f,  '    §    1431,   p.    848. 
By  Legal  Proceedings  not  Vacated,  etc.,  as  Act  of  Bankruptcy,  see  "Acts 

of   Bankruptcy — Preference   by   Legal    Proceedings    Not   Vacated." 
Mechanic's  lien  is  not,  §  1155,  p.  681. 
Must  have  been   created  by  legal  proceedings  in   third  act  of  bankruptcy, 

§  139,  p.  122. 
Partner  selling  out  to  remaining  partner,  whether  preference  to  individual 

creditor,   §   1312,   p.   769. 
By  Partnership,   not  voidable  by  bankruptcy  of  partner,  §  2268,   p.   1387. 
By   Partnership,   after  dissolution   of  firm,   where  remaining  partner  alone  * 

bankrupt.  §  2274,  p.  1391. 
Requisite  to  perpetrate  third  act  of  bankruptcy,  §  138,  p.   120. 
Subcontractor's   lien   is   not,   §   1156,   p.    682. 
Supplies,  statutory  liens  for,  are  not,  §  1159,  p.  683. 
Surrender  of 

See  "Surrender  of  Preferences." 
Is  Theoretical  Basis  of  Nullification  of  Lien  by  Legal  proceedings,  §  1462, 

p.   868. 
Trustee's    failure    to    contest    allowance    of    claim,    bar    to    suit    to    recover 

preference,   §   792,   p.   464.  • 

Vacating  of,  ineffectual  in  third  act  of  bankruptcy,   unless  "five   days   be- 
fore  sale,"  §  140,  p.   122. 
Voidable  preference  not  available  as   offset  in  favor  of  preferred  creditor, 

§   1179,  p.   690. 

PREFERENCES    VOIDABLE    UNDER     GENERAL    EQUITY     PRINCI- 
PLES, THOUGH  NOT  UNDER  BANKRUPTCY  ACT,  §  774,  p.  459. 

PREFERENTIAL  TRANSFERS 

Distinguished  from  fraudulent,  §  1221,  p.  723;  §  1305,  p.  766;  §  1397,  p.  825; 

§  2496,  p.  1505. 
Suits  to  set  aside,  appealable,  §  2921,  p.   1712. 
Suits   to  set  aside  may  be  brought   in   bankruptcy   court,   §    1688,  p.   1039; 

§  1690,  p.  1041;  §  1723,  p.  1062. 
Voidable    under    Special    State    statutes,    when    available    in    bankrupt c\-,    § 

1269,  p.  748. 

"PREFERRED   CLAIM" 

Distinguished  from  Secured  Claim,  §  750,  p.  446. 

PREFERRED  CREDITORS 

Allowability  of  Claims  of 

Xot   Surrendered   until   Adverse   Ruling  of  referee   when   presented   for 

allowance,  yet  allowable,   §   771,   p.   458. 
Not  Voluntarily  Surrendered  but  only  on   Litigation,  yet  allowable,   § 

770,  p.  456. 
Order    of    Disallowance    to    fix    time    for    Surrender   and    Allowance,    § 

772,  p.  458. 


2220  GENERAL  INDEX. 

PREFERRED  CREDITORS— Continued. 

Preference   Surrendered,   claim   Allowable,   §   769,  p.   456. 
"Surrender   of   preference"   prerequisite  to   allowance,   §   768,   p.   456. 
Surrender   not    requisite   to   Validity   of    Different    Lien    on    marshaling 

liens  for  sale,  §  773,  p.  459;  §  1428,  p.  846;  §  1899,  p.  1187. 
Surrender  requisite  only  when  allowance  to  share  in  dividends  sought, 

§  773,  p.  459;  §  1428,  p.  846;  §  1899,  p.  1187. 
Surrender    where    preference    not    void    under    act    but    under    general 

equity   principles,   §   774,   p.    459. 
Allowability   of    claims    of   fraudulent    or    preferential    transferees    after 

setting  aside  transfers,   §  775,  p.  459. 
Preference  may  not  be  used  as  offset,  §  1179,  p.  690. 
Competent   to  join  as   Petitioning  Creditors,   §   233,  p.   182. 
Counted  in   if  necessary  to   sustain  jurisdiction,   §   205,  p.   167. 
Excluded  if  they  defeat  jurisdiction,  §  205,  p.  167. 
Right   of,   to    Offset   New   Credit,    §   1416,   p.    839. 
See   "Set-Off   of   New   Credit   by   Preferred   Creditor." 
Vote  only  if  they  Surrender   Preferences,   §  578,  p.   349. 

PRELIMINARY    DETERMINATION   OF   VALUES   FOR  VOTING  PUR- 
POSES, §  763,  p.  454;  §  577,  p.  349. 

PREMATURE    ADJUDICATION    ON    BANKRUPT'S    CONSENT,    §    427, 
p.   274. 

PREMISES  OF  BANKRUPT 

See  "Leasehold." 

Also,  see  "Trustee,  Right  to  Occupy  Premises." 

PREMIUM 

Whether  trustee  to  pay,  on  bankrupt's  life  insurance,  §  1013,  p.  563. 

PREPARATION  OF  SCHEDULES  A  DUTY  OF  THE  BANKRUPT,  §  461, 
p.  303. 

PREPAYING  BANKRUPT'S  ATTORNEY 

See    "Attorneys'    Fees    in    Bankruptcy    Proceedings — Bankrupts'    Attorneys' 
Fees." 

"PRESENT  CONSIDERATION" 

Partly  on,  and  partly  on  past,  preference  only  as  to  latter,  §  1326,  p.  777. 
Protection  of  Liens  given  on,  §  1327,  p.  777;  §  1506,  p.  901. 

PRESENT  POSSESSION 

Proof  of,  requisite  to  warrant  summary  order  on  bankrupt  to  surrender  as- 
sets, §  1845,  p.  1142. 

Agents  and  court  officers  not  subject  to  summary  orders  as  to  disburse- 
ments already  made,  §  1846,  p.   1145. 
No  interest  to  be  added    in  summary  order  to  surrender,  §  1847,  p.  1145. 
Whether  must  be  possession  at  time  of  filing  summary  petition  or  of 

granting  order,  §  1848,  p.  1145. 
Circumstantial  evidence  sufficient,  §  1849,  p.  1146. 
Presumption  of  continued  possession,  §  1850,  p.  1146;  §  1852,  p.  1151. 


GENERAI,  INDEX.  2221 

PRESENT  POSSESSION— Continued. 

Rejecting   improbable   explanations   of  disappearance    of  assets,   §   1851, 

p.  1149. 
Statements  to   commercial  agencies  of  assets,  whether  to  be  taken   as 

conclusive   admissions   against   baakrupts,   of   their   existence,    §    1852, 

p.  1151  n. 

PRESERVATION  OF  ESTATE 

See  "Costs  and  Expenses  of  Administration." 

PRESERVATION  OF  EVIDENCE 

Duty  of  referee  as  to,  §  515,  p.  322. 

PRESERVATION  OF  LIEN  FOR  BENEFIT  OF  ESTATE 

Liens  by  legal  proceedings  nullified  by  bankruptcy,  may  be  preserved  for 
benefit  of  estate,  §  1489,  p.  885;  §  16;;9,  p.  1010. 

Costs  of  Court  remain  lien,  §   1490,  p.   888;  §  2018,  p.   1255. 

Not  preserved,  is  void  as  to  other  lienholders  on  same  property,  §  1492, 

p.  890. 
Order  of  preservation  requisite,  §  1491,  p.  889. 
Order  of  Subrogation  necessary,  §  1489,  p.  888. 

Subrogation  of  trustee  to  creditor's  lien  in  pending   suit   against  bank- 
rupt, §  1639,  p.  1010. 

PRESUMPTIONS 

Against  Fraud,  §  111,  p.  107. 

Of  Fact 

May  shift  against  bankrupt  and  compel  rebuttal,  §  2636,  p.  1571. 

Intent  to  prefer,  proof  of,  aided  by,  §  132,  p.  115. 

Knowledge  of  own  insolvent  condition  presumed,  §  132,  p.  117. 

Rebuttable  presumption,  §  132,  p.   117. 

Taking  unusual  steps,  §  132,  p.  117. 

Failure  to  take  usual  steps,  §  132,  p.  117. 

Presumed  to  know  natural  and  probable  results,  §  132,  p.  115. 

Transfer   of   all    or   large   part   of   property,   presumes    intent   to    prefer, 
§  132,  p.  115. 

Paying  some  creditors  in  full  and  failure  to  pay  others,  §  132,  p.  116. 

Sufficient  Equity  left,  no  intent  to    prefer  presumed,  §  132,  p.  116. 

Presumption  of  intent  as  affected  by  amount  of  transfer,  §  132,  p.  116. 

Paying  small  sums  in  usual  course  of  business,  §  132,  p.  116. 
Intent,  Proof  of,   aided  by,   §   110,  p.  107. 
Natural  and  Probable  Consequences  of  Act  raise*  §  112,  p.  107. 

Present  Possession,  proof  of,  aided  by,  §  1850,  p.  1146;  §  1852,  p.  1151. 

Continued    possession    presumed,    when    property    traced    and    shortage 

unexplained,  §  1850,  p.  1146. 
None  of  continued  possession,  if  circumstances  raise  counter  presump- 
tion, §  1852,  p.  1151. 
"Reasonable   Cause   of   Belief,"  proof  of,   aided  by  presumptions,   §   1401,  p. 
828. 

PREVIOUS  DISCHARGE  WJTHIN   SIX  YEARS 

As  bar  to  discharge,  see  "Discharge — Opposition  to — Grounds  of — Previous 
Discharge  within  Six  Years." 


2222  ge;ni;ra]:v  index. 

PRINCIPAL  PLACE  OF  BUSINESS 

See  "Residence." 

Actual  Place  of  Business  Governs,  §  35,  p.  54. 

"PRINCIPALLY -ENGAGED" 

In  Manufacturing,  Trading,  etc.,  applicable  only  to  corporations,  not  to 
Natural  Persons,  §  46,  p.  59. 

PRINTING  AND  PUBLISHING  CORPORATIONS 

Mercantile  Agencies  are  not,  §  92,  p.  87. 
Subject  to  Bankruptcy,  §  92,  p.  87. 

PRIORITIES 

Of  Costs  and  Expenses  of  Administration,  see  "Costs  and  Expenses  of  Ad- 
ministration." 

In  Distribution,  see  "Distribution." 

Recognition  of  Diverse  Exemption  Laws  and  Priority  Laws  not  Lack  of 
Uniformity,  §  5,  p.  22. 

'Recognition,  Enforcement  and  Changes  in  Law  as  to  Priorities  not  a  Dele- 
gation of  Legislative  Power,  §  11,  p.  27. 

Under  State  statute,  in  marshaling  of  liens  on  property  in  custody  of  bank- 
ruptcy court,  §  1898,  p.  1186. 

PRIORITIES  UNDER  STATE  AND  FEDERAL  LAW 
In  Distribution  of  bankruptcy  assets,  §  2187,  p.  1345. 
Municipality  as  priority  claimant,  §  2189,  p.  1345. 
Priority  given  to  "any  person"  by  United  States  law  preserved,  §  2190, 

p.  1346. 
Recognized,  §   2187,  p.   1345;   §  2179,  p.   1341;   §   2181,  p.   1342. 
State  and  Federal  governments  as  priority  claimants,  §  2189,  p.  1345. 
Government  Contracts,  §  2191,  p.  1346. 
No  proof  of  claim  requisite  by  government  to  secure  priority,  §  2192, 

p.  1346. 
Years   limitation   for   proving  claims   not   applicable   to   government,   § 

2193,  p.  1346. 
State    Law   priorities    adopted   where   claimants   not   in   classes    already 

covered  by  express  bankruptcy  priorities,  §  2194,  p.  1346. 
State  priorities  to  laborers,  where  different  from  bankruptcy  priorities, 

§  2195,  p.  1347. 
Whether    state    priorities    in    cases    of    assignments,    receiverships,    etc., 

preserved  when  custody  superseded  by  bankruptcy,  §  2196,  p.  1347. 
Whether    State   priorities    dependent    on    resort    to   particular   remedies, 

such  as  insolvency  or  state  bankruptcy  proceedings,  to  be  recognized, 

§  2197,  p.  1349. 
Rule  adopting  State  priorities,  not  to  override,  §  67  "f"  annulling  "legal" 

liens,  §  2198,  p.  1351. 
Claimant  must  comply  with  all   regulations   and   pre-requisites   of  State 

priority,  §  2199,  p.   1352. 
Whether,  where  bankruptcy  prevents,  compliance  will  be  dispensed  with, 

or  levy  permitted  and  discharge  stayed  to  enable  perfecting  of  priority, 

§  2200,  p.  1353. 
Trustee   cannot  perfect  priority  claims,  §  2201,  p.  1353. 
Relative  precedence  among  State  priorities  preserved,  §  2202,  p.  1353. 


CENERAI,  INDEX.  2223 

PRIORITIES  UNDER  STATE  AND  FEDERAL  LAW— Continued. 

Where   both   State   law   and   Bankrupt   Act   give  priority   to   same   class^ 

bankrupt  act. excludes  State  law,  §  2203,  p.  1354. 
Landlord's  priorities,  §  2204,  p.   1356. 

Priorities   for   furnishing   supplies   and   materials   for   manufacturing   es- 
tablishments;   fiduciary    debts    as    guardian;    community    property    of 
husband  and  wife,  etc.,  §  2205,  p.  1357. 
In  Marshaling  of  Liens  on  Property  in  custody  of  Bankruptcy  Court,  §  1898, 

p.  1186. 
Recognized  in  bankruptcy,  §  2179,  p.  1341;  §  2181,  p.  1342;  §  2187,  p.  1345. 

PRIORITY 

Not  Appealable,  under  §  25  (a),  §  2900,  p.   1702. 

Unless  incident  to  disputed  debt,  §  2901,  p.  1702. 
Debts  excepted  from  discharge,  not,  on  that  account  entitled  to,  §  2744,  p. 

1616. 
Distinguished  from  "Hen,"  §  2188,  p.  1345. 
See  "Distribution." 

Mere  Judgment  not  entitled  to,  as  such,  §  2137,  p.  1318. 
Of  liens 

Appealable  as  "controversy,"  §  2923,  p.  1712. 

Whether    questions    in,    are    "Proceedings    in    Bankruptcy    proper"    or 
"Controversies,"  §  2869,  p.  1683;  §  2870,  p.  1684;  §  2871,  p.  1684;  §  2875, 
p.  1687;  §  2877,  p.  1689;  §  2878,  p.  1689. 
Not  Lost  because  claim  also  a  secured  debt,  §  2136,  p.  1318. 
Not   Lost  by  taking  judgment  or  note  nor  by  assignment,  §   2135,   p.   1317; 

§  2182,  p.  1342;  §  2183,  p.  1342. 
Order  of,  in  bankruptcy  distribution,  prescribed  by  act,  §  2134,  p.  1317. 
See  "Priorities." 

PRIORITY  CLAIMS 

Deposit  on   Composition   must   cover,   §   2365,   p.   1434. 
Dividends  on,  §  2140,  p.  1319. 

Proof  of,  §  607.  p.  361;  §  2138,  p.   1318;   §   2185,  p.   1344. 
Referee  may  Order  payment  of,  §  536,  p.  331. 

PRIORITY  CREDITORS 

Preferences  among,  §  1388,  p.  819. 
Vote  only  for  Deficit,  §  576,  p.  349. 

PRIVATE  BANKER 

Corporation  cannot  be,  §  79,  p.  79. 

Partnership  may  be,  §  79,  p.  79. 

Subject  to  involuntarj'  bankruptc}',  §  79,  p.  79. 

PRIVATE  HOSPITAL  CORPORATIONS 

See   "Involuntary   Bankruptc}-." 

PRIVATE  SALE 

For  "Good  Cause"  shown,  sales  may  be  private,  §  1948,  p.  1214. 

PRIVILEGE 

See  ."Incriminating  Questions." 

See  "Protection  of  Bankrupt  from  Use  of  Testimony." 


2224  GENERAIv  INDBX. 

PRIVILEGE  OF  BANKRUPT  FROM  ARREST 

See  "Protection  of  Bankrupt  from  Arrest." 

PRIVILEGED  COMMUNICATIONS 

Respected  in  bankruptcy,  §  1566,  p.  9-il;  §  1759,  p.  1074  n. 
Preliminary  examination  to  determine  whether,  §  1566,  p.  941. 

PROCEDURE   ON   ALLOWANCE   OF   CLAIMS 

See  "Allowance  of  Claims — Procedure  on." 

PROCEEDINGS  IN  AID  OF  EXECUTION 

Bankruptcy  court  may  stay,  §  2702,  p.  1601. 

"PROCEEDINGS  IN  BANKRUPTCY" 

See  "Appeal  and  Error." 

See   "Appeal   and   Error — Appeals   to    Circuit    Court   of   Appeals — In   Bank- 
ruptcy  Proceedings   Proper."  . 
Distinguished  from  "controversies"  arising  in  bankruptcy,  §   1685,  p.  1036. 
Plenary  suits  by  trustees  are  not,  §  1691,  p.  1042. 

PROCEEDINGS  IN  PERSONAM 

Bankruptcy  Proceedings  are  in  Personam  as  well  as  in  Rem,  §  18,  p.  34. 

PROCEEDINGS  IN  REM 

Bankruptcy  Proceedings  are,  §  18,  p.  34. 

"PROCEEDS" 

Claiming  exemptions  in,  where  property  still  in  specie,  §  1057,  p.   605. 
Claiming,  may  authorize  trustee  to  sell  exemptions  with  remainder  as  en- 
tirety, §  1065,  p.  608. 

PROCESS 

Bankrupt's  waiver  of  improper  service,  §  313,  p.  221. 

Delay  in  serving  subpoena,  §  311,  p.  220. 

Manner  of  service,  §  312,  p.  220. 

Provisions  as  to  service  apply  to  partnership  petitions  iiled  by  one  partner, 

§  310,  p.  220. 
Provisions  as  to  service  directory,  not  mandatory,  §  309,  p.  220. 
To  be  under  Seal  and  Tested,  §  1537,  p.  918. 
Service  of,  upon  involuntary  petition,  §  307,  p.  219. 

"PROCURING" 

Of  Judgment,  as  preference,  §  1335,  p.  782. 

PRODUCING    BOOKS    AND    APPEARING    FOR    EXAMINATION    AT 
TRIAL 

Burden  of  Proof  of  insolvency  not  shifted  by  debtor's  failure  in,  in  receiver- 
ship as  act  of  bankruptcy,  §  154,  p.  133. 

Debtor  to  Appear  and  Produce  books  at  trial,  to  afford  discovery,  §  179, 
p.  150. 

Destruction  or  loss  of  Adequate  Books,  no  excuse,  §  180,  p.  150. 

Failure  to  keep  adequate  books  no  excuse,. §  180,  p.  150. 

Whether  requirement  of,  applies  to  receiverships  as  acts  of  bankruptcy,  § 
181,  p.  151. 


GENERAIv  INDEX.  222d 

PRODUCTION  OF  BOOKS,  PAPERS  AND  DOCUMENTS  BY  WITNESS 

Enforceable,  §  1548,  p.  9:-'(J.  • 

Privilege  as  to  Incriminating  evidence,  §  15G0,  p.  937;  §  1561,  p.  9;58. 

Does    not   authorize    refusal    altogether    to   produce    documents,    §    15G0, 

p.  937. 
To  be  claimed   when  book  or  document  about   to  be  inspected,  §   1561, 
p.  938. 
,To  be  claimed  by  witness  himself,  §  1561,  p.  938. 
Not  waived  by  voluntary  bankruptcy,  §  1562,  p.  939. 
Refusal  of  order  for,  whether  appealable,  §  2890,  p.   1698^ 

PROMISE 

Waiving  discharge  bj'  New,  §  2717,  p.  1606. 

"PROOF" 

And  "Allowance"  diflferent  terms,  §  595,  p.  356. 

Degree  of 

On   summary   orders,   must   be   "clear,"    "convincing,''    "satisfactory"    or 
"beyond  a  reasonable  doubt,"  §  1842,  p.  1137. 
Of   Intent   to   Prefer,   see   "Intent,  to   Prefer."        See,   also,   "Presumptions." 

PROOF   OF   CLAIM 

Account   to   be    Itemized,   §   604,   p.   360. 

Amendment  of 

After  expiration  of  j^ear  permissible,  §  622,  p.  367. 

Amendable,  §  617,  p.  366. 

Based  on  an  original  proof  filed,  §  618,  p.  366. 

Changing  Legal  Nature  of  cause  of  action,  §  619,  p.  367. 

Conditions  imposed,  §  620,  p.  367. 

Refused,  §  621,  p.  367. 

Assigned  claims,  §  608,  p.  361;  §  609,  p.  361;  §  610,  p.  362. 

Assigned  before  bankruptcy,  §  608,  p.   361;   §  740,  p.  441. 

Assigned  after  bankruptcy  but  before  proof,  §  609,  p.  361;  §  741,  p.  441. 

Assigned  after  proof,   §  610,  p.  362;   §   742,  p.  442. 
Assignees'    or    Receivers'    Compensation    and    Expenses,    on    surrender    of 

assets,   §   1623,  p.  988. 
Assignment   of  Claim,   see   "Assignment   of   Claims." 
Caption  and  Title,   §   596,  p.  356. 

"Claim"  to  be  set  forth  and  alleged  to  be  "justly  owing,''  §  597,  p.  357. 
Consideration  to  be  stated,  §  603,  p.   359. 
Debts  Owing  but  not  yet  due,  §  599,  p.  357. 
Due  date  and  interest,  §  598,  p.  357. 

Deposition  for  proof  of  claim  prima  facie  case  for  claimant,  §  844,  p.  484. 
Instrument  in   writing  given,  original  to  be  attached,   §  602,  p.  358. 
Judgments  must  be  "Proved"  as  well  as  other  claims,  §  676,  p.  412  n. 
Transcript  of  judgment  need  not  be  attached,  §   602,  p.  358. 
Alust   state   whether  judgment   taken,   §   600,   p.   357. 
Must  State  whether  note  given,  §  601,  p.  357. 

By  person  contingently  or  secondarily  liable,  §  611,  p.  362. 

Creditor   not   obliged   to   prove    claim    against   bankrupt    principal,    even 
on  surety's  demand,  §  612,  p.  363;  §  1515,  p.  904. 

2  Rem  B— 65 


2226  GENERAL  INDEX. 

PROOF  OF  CLAIM— Continued. 

Right  of  surety  or  indorser  to  prove  creditor's  claim  against  bankrupt 

principal,   §   1516,   p.   904. 
Creditor    entitled    to    prove    against    both    principal    and    surety    u-here 

both  bankrupt,  §   1519,  p.  904. 
Creditor   not/  obliged   to    lend   written   instrument    to    surety,    §    612,    p. 

363;    §    1517,   p.    904. 
Unless    surety    ofifers    to    indemnify    creditor    against    expense,    §    1518, 
p.   904. 
Priority  claims,  §  607,  p.  361;  §  3138,  p.  1318;  §  2185,  p.  1344. 
For  Priority,  requisite,  except  for  taxes,  §  2138,  p.  1318. 

Also   Except   for    Government   Claims,    §   2192,   p.    1346. 
Proving  Secured  Debt  as  unsecured,   whether  waiver  or  not,   §  766,   p.  455. 
To  be  in  name  of  Real  Party  in  Interest,  §  605,  p.  360. 
Not  "^Requisite   for   government,    §   2192,   p.    1346. 
Secured  Claims,  §  606,  p.  360. 
Signature,  and  verification,  §  614,  p.   364. 
Several  claims  by  same  creditor,  §  615,  p.  365. 
Single   claim   not   to   be   split,    §   616,   p.   365. 
Taxes   need   not   be   proved   in   form   of  other   debts,    §   702,   p.   423;    §   2161, 

p.    1334. 
Unliquidated,  original  proof  not  necessarily  formal,  §  716,  p.  428. 
What   is,    §    594,    p.    355. 
Withdrawal   of,   §   623,   p.   368. 

Attorney   at    Law    competent    to    withdraw    without    written    power,    § 

§   624,   p.   368. 
Power  of  amendment  not   to  be  distorted  to  let  in   dilatory  creditors 
after    expiration    of   year,    who    have    withdrawn    proofs    of    claim,    § 
736,  p.  440. 

PROPER  PARTIES  TO  OBJECT  TO  CLAIMS 

See    "Objections    to    Claims,    Who    INIay    Object." 

PROPERTY  FRAUDULENTLY  CONVEYED,  PASSES  TO   TRUSTEE,  § 

962,  p.  538. 

'property 

Fraudulently    transferred,    see    "Fraudulent    Transfers." 
Held  on  Secret  Trust,  see  "Secret  Trust." 

PROPERTY  PASSING  AND  NOT  PASSING  TO  TRUSTEE 
Kinds    of   Property 

Bonds,   see   "Bonds." 

Copyrights    and    Trademarks,    see    "Copyrights    and    Trademarks." 

Child's  property,  see  "Property  Belonging  to  Bankrupt  by  Marital  or 
Parental  Right." 

Commercial   Paper,  see  "Commercial  Paper." 

Contracts  involving  personal  skill  and  confidence,  see  "Contracts  In- 
volving  Personal    Skill   and   Confidence." 

Concealed  Property,   see  "Concealed   Property." 

Conditional  Sale,  property  sold  on,  see  "Property  Sold  on  Conditional 
Sale." 

Curtesy,   see   "Curtesy,   Estates   by." 

Distinct  scope  to   each  class,  §  952,  p.  535. 


GENERAL  INDEX.  2227 

PROPERTY  PASSING  AND  NOT  PASSING  TO  TRUSTEE— Continued. 
Documents,   sec   "Documents." 
Dower,   see   "Dower."  , 

Expectancies  and  possibilities  of  acquiring  property,  see  "Expectancies 
and   Possibilities   of   Acquiring   Property,"   etc. 

Encumbered  Property,  see  "Encumbered  Property."  — 

Exempt   property,   see   "Exemptions." 

Fixtures,    see    "Fixtures." 

Inchoat"   Interests,    see    "Inchoate    Interests." 

Inchoate   Interests   do  not  pass,   §  971,   p.   5-44. 

Interests  in   wife's   property,   see   "Property   Belonging  to   Bankrupt  by 

Marital    or    Parental    Right." 
Inalienable     property,     see     "Spendthrift    Trusts    and     Restriction     on 

Alienation." 
Life    Insurance    Policies,    see    "Life    Insurance    Policies    as    Assets." 
Leasehold,  see  "Leasehold." 

License,    see    "Memberships    in    Stock    Exchanges,    Licenses,    etc." 
Local    law    determines    whether    particular    property    within    classifica- 
tion, §  953,  p.   535. 
Membership    in    Stock    Exchanges    and    Clubs,    see    "Memberships    in 

Stock  Exchanges,"  etc. 
Merchandise,    see   "Merchandise." 
Mortgages,    see   "Mortgages." 

Property  rights  must  exist  in   bankrupt,   §  970,  p.   543. 
Property  held  in  trust  for  bankrupt,  see  "Property  Held  in  Trust  for 

Bankrupt." 
Property   held   in   trust  by  bankrupt,   see   "Property   Held   in   Trust   by 

Bankrupt." 
Property    Fraudulently    Conveyed,    see    "Property    Fraudulently    Con- 
veyed." 
Powers,    see    "Powers." 
Patents,   see   "Patents." 

See  "Property  Transferable  or  Capable  of  Subjection  by  Legal   Proc- 
ess.'' 
Rights   of  Actions   on   contracts,   see   "Rights   of  Action   on   Contracts, 

etc." 
Rights    of   Action   for   Injury   to    Property,   see   "Rights   of  Action    for 

Injury   to   Property." 
Reversionary  interests,  see  "Vested  Interests." 
Unpaid    Stock    subscriptions,    see    "Unpaid   Stock    Subscriptions." 
Unscheduled  Property,  see  "Unscheduled  Property." 
Vested    Interests,    see    "Vested    Interests." 
Vested   Interests  pass,  §  972,  p.  544. 
Stocks,  see  "Stocks." 

PROPERTY    TRANSFERABLE    OR    CAPABLE   OF    SUBJECTION    BY 
LEGAL  PROCESS 

Passes  to  trustee,  §  9G3,  p.   538. 

If  capable  either  of  transfer  or  of  being  levied  on,  passes,  §  964,  p.  539. 
If  transferable  "by  any  means,"   or  leviable  upon,  it  passes,  §  965,  p.   539. 
If  not  transferable  by  any  means  or  leviable  upon,  does  not  pass.  §  965,  p. 
539. 


2228  GENERAL  INDEX.  .       ^ 

PROTECTION 

Of  bona  fide  holders  and  purchasers,  see  "Bona  Fide  Holders  or  Pur- 
chasers."- 

PROTECTION  OF  BANKRUPT 

See  ''Discharge — Staying  Suits  against  Bankrupt  to  Permit  Interposition 
of." 

PROTECTION  OF  BANKRUPT  FROM  ARREST,  §  463,  p.  303. 

Arrest  before   Bankruptcy,   Protection  equally  available,   §  465,   p.   304. 

Arrest  for'  Contempt  for  failure  to  pay  Alimony,  §  46i),  p.  305  n. 

Arrest   on  process   from   Federal   Court,   §   471,   p.   306. 

Arrest   from   other   courts,   whether   within   protection,    §   469,   p.   305. 

"Bankrupt"  for  purposes  of  protection,  as  long  as  any  proceedings  pend- 
ing,   §   473,   p.   306. 

If   Debt    Dischargeable    protected — otherwise   not,    §   464,   p.    304. 

Duty  of  court  to  protect,  §  466,  p.  30o. 

Habeas   Corpus   available   to   effect  protection,   §   472,   p.   306. 

Injunction  available  to  effect  protection,   §  472,  p.  306. 

May  be  arrested  upon  criminal  charge,  §  467,  p.  305. 

No  exemption  from  arrest  by  bankruptcy  court  itself,  §  468,  p.  305. 

While  Peiforming  Statutorjr  duties,  protected,  whether  debt  dischargeable 
or   not,    S   470,    p.   305. 

While  in  Attendance  on  bankruptcy  court,  protected  whether  debt  dis- 
chargeable  or   not,    §   470,   p.   305. 

Whether  Conditions  may  be  imposed  on  granting  protection,  §  466,  p. 
305   n. 

PROTECTION  OF  BANKRUPT  FROM  USE  OF  TESTIMONY 

Applies   only   to   Federal   prosecution,   §    1557,   p.   932. 

Criminal    Proceedings,   applies   only   to,   §    1556,   p.    931. 

General  Examination  of  Bankrupt  may  be  used  in  Opposition  to  Dis- 
charge,   §    1557,    p.    932. 

Production  of  Books,  etc.,  protection  applies  to,  §  1557,  p.  932;  §  1558,  p. 
933. 

PROTECTION  OF  LIENS  WHICH  ARE  NOT  IN  CONTRAVENTION 
OF  ACT 

Statutory    Provision    as    to,    §    1500,    p.    895. 

Is  Converse  of  Avoidance  of  Liens  opposed  to  bankruptcy  act,  §  1501,  p. 
897'. 

Chattel  ]\Iortgages  and  Conditional  Sales  contract,  Withheld  from  Rec- 
ord for  time,  but  filed  before  Bankruptcy,  §  1508,  p.  901. 

Chattel   mortgages    covering   Future   Acquired   property,    §    1509,   p.   902. 

Lien   within   four  months  Valid  'f  other   essentials   exist,   §   1502,   p.   898. 

Lien  protected  unless  both  parties  guilty,  §  1503,  p.  898. 
What  constitutes  "good  faith,"  §  1504,  p.  899. 

Protected  unless  given  or  accepted  in  contemplation  of  bankruptcy  or  in 
fraud  of  act,  §   1505,  p.  900. 

"Present   Consideration"   essential   to   protection,   §   1506,   p.   901. 

"Recording,"   when   essential   to  protection,   §   1507,   p.   901.- 

PROTECTION  OF  LIENS  GIVEN  ON  PRESENTLY  PASSING  CON- 
SIDERATION, §  1327,  p.  777.  See,  also,  "Protection  of  Liens  which  are  not 
in  Contravention  of  Act." 


GENERAL  INDEX.  2229 

PROVABILITY 

Distinguished   from   Allowability,   §   G32,   p.    375;    §   745,   p.   445. 
Distinguished   from   "Validity,"  §   630,   p.  374. 
Not   dependent   on    Dischargeability,    §   633,   p.   376. 

Not   dependent  on   right  to   share   in   dividends,   in  any  particular   order   of 
Priority,   §   634,  p.   376. 

PROVABLE  CLAIM  OR  DEBT 

"Allowable,"  only  if  a,  §  746,  p.  445. 

Creditors    holding,    and    only    such,    competent    as    petitioning    creditors,    § 

227,    p.    179. 
Discharge  cf 

All  are   discharged,  save  those   excepted  by  statute,   §  2731,   p.   1610. 

Breach  of  Promise  of  Marriage,  §  2739,  p.  1614. 

If  Capable  of  being  "proved"  debt  discharged,  whether  actually  proved 

or  not,   §   2732,  p.    1612. 
Claims  rrot  provable,  not  discharged,  §  2731,  p.   1610. 
Claims  Not  Owing    at  date  of  petition,  §  2735,  p.  1613. 
Contingent   claims,    §    2736,   p.    1613. 
Costs,   §   2737,  p.    1614;   §   2738,   p.    1614. 
See   "Discharge — What   Obligations   Are   Discharged." 
Stockholders  liability,  §  2742,  p.  1616. 
Sureties,   §  2741,   p.   1615. 
Tort  Claims,   §  2733,  p.   1613. 
Unliquidated  claims,  §  2734,   p.  1613. 
Distinguished   from   Secured   Claim,   §   749,   p.   446. 
Nondischargeable  debts   may  share  in  dividends,   §  2670,   p.   1589. 
Offset  and  Counterclaim  must  be  a,  §  1177,  p.  689. 
Partner's   claim   for   share   of   profits  is   not,   as   against   the    partnership,    § 

235,  p.   183  n. 
Not  every  Provable   Claim   necessarily  allowable,   §   747,  p.  445. 
May  be   "Provable"   though   "Unliquidated,"   §   704,   p.   423. 
Taxes,  whether  are,  §  2745,  p.  1616.     See,  also,  "Taxes." 
"Unliquidated    Claims"    do    not    enlarge    classes    of    provable    debts,    §    705, 

p.    424. 
Accounts,   see   "Open   Accounts   and   Contracts   Express   or    Implied." 
Claims    reduced    to    judgment    after    bankruptcy    petition    filed    and    before 
discharge,  see  "Provable   Debts   Reduced  to  Judgment  after  Bankruptcy 
but   before   Discharge." 
Claims   ex   delicto,   see   "Claims   Ex   Delicto." 
Contingent   claims,   see    "Contingent    Claims." 
Claims  not  owing,  see  "Claims   Not  Owing  at  Time  of  Filing  Bankruptcy 

Petition." 
Contracts,    express    or    implied,    see    "Open    Accounts    and    Contracts    Ex- 
press   or    Implied." 
Contracts  of  Sale,  see  "Contracts  of  Sale"  and  "Sale,  Contracts  of." 
Contracts   of  Employment,  see   "Contracts   of  Employment;   and   Employ- 
ments, Contracts  of." 
Continuing   Contracts,   see  "Continuing  Contract." 
Costs,  see  "Claims  for  Costs." 
"Debt,"   §   626,   p.    372. 

'Demands"    and   "Claims,"    not    technically    "debts,"    nevertheless    included, 
§    G27,    p.   372. 


2230  GENERAL  INDEX, 

PROVABLE  CLAIM  OR  DEBT— Continued. 

Depends  on  Status  at  Time  of  Filing  Bankruptcy  Petition,  §  629,  p.  374. 

Employments,   see  "Contracts   of  Employment." 

Judgments,   see   "Judgments  and  Written   Instruments." 

Only  such  are  provable  claims  as  Statute  Declares,  §  625,  p.  371. 

Partnership  debts  are  Provable  debts   against  each  member  individually,  § 

2237,  p.  1368;  §  2796,  p.  1637. 
See   "Distribution — In    Partnership    Bankruptcy." 
."Provability"   and   "Allowability"   different   terms,   §   632,   p.   375. 
"Provability"   and   "Validity"   different   terms,   §   630,   p.   374. 
"Provability"   not   dependent   on   "dischargeability,"   §   633,   p.   376. 
Provability  not  dependent  on   right  to  share  in  dividends  in  any  particu- 
lar  order   of   priority,   §    634,   p.    376. 
"Reduced  to  Judgment  after  Bankruptcy  but  before  Discharge" 

Does  not  enlarge  time  for  proving  claim  nor  confer  lien,  §  700,  p.  423. 
Judgment  itself  valid  as  res  adjudicata,  §  699,  p.  423. 
Object — to  prevent  effect  of  merger,  §  696,  p.  421.  « 

Original  obligation  must  have  been  provable,  §  697,  p.  422. 
Original  debt,  not  the  judgment  itself  to  be  proved,  §  698,  p.  422. 
Provable,  §  695,  p.  420. 
Rent   Claims,  see  "Claims  for   Rent." 
Surety's  Claims,  see  "Claims  of  Surety." 
Sale,  see  "Contracts  of  Sale." 

Unliquidated   Claims,    see   "Unliquidated    Claims." 
Voluntary  Bankrupt  Must  Owe,  §  41,  p.  57. 
What  is,  §  628,  p.  373. 
Whether  a  "Debt,"  "Claim"  or  "Demand"  Dependent  on  State  Law,  §  631, 

p.  375. 
Written  Instruments,  see  "Judgments  and  Written  Instruments." 

"PROVING" 

Means  filing,  when  unliquidated  claims  referred  to,  §  720,  p.  434. 

PROVING   ON    ORIGINAL   CONSIDERATION   AND   WAIVING   NOTE, 

§  602,  p.  358  n. 

PROVISIONAL  ALLOWANCE 

Improper,  and  allowance  res  adjudicata  notwithstanding,  §  793,  p.  464;  §  812,, 

p.  473. 
None  for  voting  purposes,   §   865,   p.   496. 
Preliminary  determination  of  value  of  securities  for  voting  purposes,  §  763, 

p.  454. 

PROVISIONAL  REMEDIES 

See  "Arrest  and  Detention  of  Bankrupt." 

Creditors'  Plenary  Suits  against  Adverse  Claimants  before  trustee  appointed, 

§   1712,  p.   1056. 

Not  in  Bankruptcy   Court,  §   1716,   p.   1058. 

Nor  after  trustee  elected,  §  1718,  p.  1060. 
Provisional  seizure  of  property,  §  335,  p.  230. 
See  "Provisional  Seizure  of  Property." 

Remedies  of  creditors  during  pendency  of  petition,  §   335,  p.  230. 
See  "Receivers." 
See    "Restraining    Orders    and    Injunctions." 


GENERAL  INDEX.  2231 

PROVISIONAL  SEIZURE  OF  PROPERTY 

Affidavit  and  bond,  §  336,  p.  231. 

Affidavit  must  be  made,  §  339,  p.  232. 

Affidavit   to  be   specific,   §  340,  p.  232.  - 

Allegations  for  provisional  seizure  not  to  be  made  in  petition,  §  338,  p.  232; 

§  250,  p.  190. 
Allowance  only  to  respondent  at  time  of  bond  given,  §  350,  p.  236. 
Bond  to  be  given,  §  341,  p.  233. 

Bond  need  not  be  signed  by  petitioners,  §  343,  p.  233. 
Costs,  Expenses,  Counsel  fees  and  Damages  confined  to  those  incident  to 

seizure,  §  349,  p.  235. 
Compensation  and  expenses  of  marshal  on  seizure,  §  358,  p.  240. 
Malicious  Prosecution  for  wrongful  seizure,  §  354,  p.  237. 
Neither  Affidavit  or  bond  can  be  waived  by  bankrupt,  §  342,  p.  233. 
No  second  recovery  under  another  section,  §  351,  p.  236. 
No  "seizure,"  no  counsel  fees,  expenses  nor  damages,  §  352,  p.  236. 
Only    damages    for   "seizure,"    not   for    instituting   bankruptcy    proceedings, 

§  353,  p.  237. 
Officer  making  seizure,  to  determine  ownership  at  own  risk,  §  357,  p.  240. 
On    dismissal   property   to   be    returned   without    deduction    for   care,    §    347, 

p.  234. 
Property  claimed  Adversely  not  to  be  seized,  §  355,  p.  237. 
Property    in    actual    possession    of    bankrupt,    though    claimed    bj^    another, 

seizable,  §  356,  p.  239. 
Premium  on  bond,  §  345,  p.  234. 

Referee,  in  absence  of  Judge,  to  issue  orders,  §  337,  p.  232;  §  525,  p.  328. 
Receiver  may  be  appointed  to  make  seizure,  §  346,  p.  234;  §  390,  p.  256. 
Respondent  allowed  expenses,  counsel  fees  and  damages  on  dismissal,  §  348. 

p.  234. 
Subsequent  respondent  may  move  for  new  bond,  §  350,  p.  236. 
Surety  Company's  bond  sufficient,  §  344,  p.  233. 
Warrant   of   Seizure,   see   "Forms." 

PROXY 

Creditor  may  act  bjs  §  583,  p.  350. 

For   Corporations    and   Partnerships   to   contain   oath    of   official   capacitj',   § 

587,  p.  353. 
Written  power  of  attorney  requisite,  §  584,  p.  351. 

PUBLICATION 

Notice  by,  §  568,  p.  344. 

Of  Petition  for  discharge,   §  2432,  p.   1470. 
Service  by,  §  308,  p.  219. 

PUBLIC  CORPORATIONS 

Whether  chargeable  with  "Reasonable  Cause  for  Belief,"  §   1414,  p.   838. 

PUBLIC  MONEYS 

Deposited  with  bankrupt  banks,  §  806,  p.  470. 

PURCHASER 

At  Sales  in  Bankruptcy 

Whether   Entitled   to   set  aside   Preferential   encumbrances   on   properti' 
purchased,  §  1415,  p.  838. 


2232  GENERAL  IXDEX. 

PURCHASER— Continued. 

Lienholder  as,  applying  lien  on  price,  §  1997,  p.  1236. 

Lienholder   as,    commissions    of   trustee   and   referee,   how    computed,    § 

2105,  p.  1300. 
No  jurisdiction  of  suit  brought  by,  §   2000,  p.   1237. 
Remedies  against,  §  1999,  p.  1236. 
Stifling  of  competition  at  sales,  §  1954,  p.  1218. 
Subject  to  Summary  Jurisdiction,  §  1804,  p.  1100;  §  1962,  p.  1221. 

PURPOSES  OF  BANKRUPTCY  LAW 

See  "Object  of  Bankruptcy  Law." 

QUALIFIED  STAY 

Where  levj^  sought  on  exempt  property  which  is  not  exempt  as  to  particular 

creditor  levying,  §  2711,  p.  1605. 
Where   judgment   necessary   to   perfect    rights    against   suretj^   or   property, 

§  2712,  p.  1605. 

QUALIFYING  OF  TRUSTEES,  §  877,  p.  500. 

QUARRYING  CORPORATIONS 

See  "Manufacturing  Corporations." 

QUASI  CONTRACT 

Judgment  on,  where  tort  waived 

Original  character  of  debt,  as  to  dischargeability  still  maj^  be  inquired 
into,  §  2750,  p.  1618. 

QUASI  PUBLIC  CORPORATIONS 

Xot  subject  to  involuntary  bankruptc}',  §  89,  p.  86.  , 

QUESTION 

Refusal  to  answer,  as  bar  to  discharge,  §  2580,  p.  1548;  §  2581,  p.  1548. 
On  review,  to  be  stated  clearly  and  distinctly,  §  2858,  p.  1669. 

RAILROAD  CORPORATION 

See   "Involuntary   Bankruptcy'." 

REAL  ESTATE 

Certificate  to  be  filed  with   Recorder  where  any  real  estate   among  assets, 

§  920,  p.  522. 
Generally  considered  in  bankrupt's  possession,  giving  summary  jurisdiction 

"to  bankruptcy  court,  §  1809,  p.  1109. 
Sales  of  at  Public  Auction,  where  to  be  held,  and  how  advertised,  §   1939, 

p.  1210. 
Unrecorded  mortgages  of,  §  1248,  p.  740. 

REAL  ESTATE  CORPORATIONS 

See   "Involuntary    Bankruptcy." 

REAL  PARTY  IN  INTEREST 

Claims  to  be  proved  in  name  of,  §  605,  p.  360. 
REAPPRAISAL,  §  19301/,,  p    12O6. 

REASONABLE  ATTORNEYS'  FEES 

See  "Attorneys'  Fees  in  Bankruptcy  Proceedings." 


GENERAI,  INDEX.  2233 

"REASONABLE  CAUSE  FOR  BELIEF" 

AJjudication  on  yround  of  preference  not  binding  on  issue  of,  §  446,  p.  290; 

§   1777,  p.  1078. 
Allegation  of  in  trustee's  Petition  to   Recover  Preference,  requisite,  §   1764, 

p.  1075. 
See  "Preference." 
Not   Requisite   to   nullify   liens   by   Legal   proceedings     within    four   months, 

§  14;!4,  p.  848. 

REBATES 

Trustee  entitled  to  rebates  to  which  bankrupt  entitled,  §  120;},  p.  698. 

RECEIVER 

May   be   appointed    in   plenarjr    suit   by   trustee    against   Adverse    Claimants, 
§  1726,  p.  1063. 

RECEIVER  IN  BANKRUPTCY 

Actual  or  Constructive  possession  by,  constitutes  "Custodia  Legis,"  §   1807, 

p.  1101. 
Application  for  appointment  of.  Notice  of,  §  381,  p.  251. 
Appointment  of 

Jurisdiction,  §  377,  p.  247. 

By  Referee  before  Adjudication,  §  379,  p.  250. 

By  Referee  after  Reference,  §  380,  p.  251. 

Any  time  before  Appointment  of  trustee,  §  378,  p.  250. 
Attorneys'  fees  of,  §  2041,  p.   1264. 

See  "Attorneys'   Fees   in   Bankruptcy   Proceedings." 
Auditing  of  Account  of,  Referee's  Duty,  §  518,  p.  323. 
Bankrupt  as  Quasi  Trustee  for  Creditors  before  Receiver  appointed,  §  383, 

p.  252. 
Bond,  §  382,  p.  251. 

■Costs  and  expenses  of  in  administration  of  estate,  §  2014,  p.  1250;  §  2033,  p. 
1261. 

Auctioneer.  §  2037,  p.  1263. 

Expense  of  conducting  business,  §  388,  p.  255;  §  2036,  p.   1262. 

Not   ifecessary  to   pay   expenses   out   of  pocket   first,   and   then   be   al- 
lowed  reimbursement,    §   2039,   p.    1263. 

Premium  on  bond,  §  2038,  p.  1263. 

Rent  for  use  and  occupation,  §  2034,  p.  1261;  §  203o,  p.  1262. 
Costs  and  expenses  of  litigation,  §  2040,  p.  1264. 

Costs  and  expenses  of,  taxable  against  petitioning  creditors,  §  398,  p.   259. 
Ground  for  Appointment,  only  one,  "Absolute  necessity  for  preservation  of 

estate,"  §   384,   p.   252. 
Fees  of,  §  2118,  p.  1306. 

Maximum  Allowance   not   to  exceed   trustee's.   §   2119,   p.    1306. 
Occupies  Premises   Free,  for  any  period  for  which   landlord  holds  provable 

claim,  §  992,  p.  552. 
Possession  by,  gives  jurisdiction  to  bankruptcj-  court,  §  1796,  p.  1089. 

Powers  and  Functions  of 

Borrowing  Money,  §  389,  p.  255. 

Continuing  of  Business  by,  §  387,  p.  255. 

Damages  for  receiver's  Breach  of  Contract,  §  388,  p.  255  n. 

Defendant  in  Plenary  Suits  by  Third  parties,  §   1778,  p.   1079. 


2234  GENERAL  INDEX. 

RECEIVER  IN  BANKRUPTCV— Continued. 

Effect   of   Dismissal    of   bankruptcy   petition    on   receivership,    §    397,    p. 

258. 
Execution  against,  §  1785,  p.  1081. 

Expense  of  Continuing  Business,  §  388,  p.  255;  §  2036,  p.  1262. 
Filing  of  Petition  to  Sell  by,  §   1941,  p.  1211. 
"For  a  Limited  Period,"  §  387,  p.  255. 
In   General,  §   385,  p.   252. 

General  Examination  of  Bankrupt  or  witnesses    by,  §  1529,  p.  914. 
Going   into   other   District   than   that   of   appointment,  §    395,    p.    257;    | 

1708,  p.  1055;  §  1709,  p.  1055. 
Made  Party  where  State  court  has  custody  of  Res,  §  1779,  p.  1079. 
Orders  by  bankruptcy  court  to  gay  Judgments  against,  out  of  funds  of 

estate,  §  1786,  p.  1081. 
Petition  for  Injunction  by,  §  368,  p.  244. 

Plenary   Suits   to   Recover   Property,    whether   ma}-   maintain,    §    393,   p. 
,      256;   §  1717,  p.  1058. 
Receiver's   Certificates,  §   389,  p.  255. 
Not  to  Seize  property  held  Adversely,  §  391,  p.  256. 
Security  for  costs  and  bond  for  Injunction  by,  §  396,  p.  258. 
Seizure   by,   instead   of  by  marshal,   §   346,   p.   234;   §   390,   p.   256. 
Selling  Perishable  Assets,  §  386,  p.  254. 
Sued  without  Leave  of  bankruptcy  court,  §  1783,  p.  1081. 
Sued  not  in  Official  capacity,  but  merely  as  individual,  §  1784,  p.  1081. 
Sued   in   Personam   for   Conversion   or  Trespass   for   Wrongful   Seizure, 

§  1780,  p.'l079;  §  1814,  p.   1112. 
Suit  for  Money  Judgment  for  Debt,  none   by  receiver,   §   394,  p.   257;   § 

1717,  p.   1058. 
Suits   in    Personam   against,   when   enjoined,    §   1781,   p.   1080;   §    1782,   p. 

1080;  §  1911,  p.  1192. 
Surrender  of  property  not  held  Adversely,  compelled  by,  §  392,  p.   256. 
Not  Proper  Party  to  Object  to  Claims,  §  821,  p.  476. 
Referee  may  appoint,  §  529,  p.  330. 

RECEIVER  IN  STATE  COURT 

As  Candidate  for  Trustee,  §  889,  p.  508. 

Compensation  and  expenses  of,  when  receivership  superseded  by  bankruptcy, 
see  "Assignments  and  Receiverships  Superseded  by  Bankruptcy." 

Costs  and  expenses  of,  in  "preservation  of  estate"  subsequent  to  filing  pe- 
tition, §  2014,  p.  1250. 

Lien  of,  for  compensation  and  expenses,  when  receivership  superseded, 
see  "Assignments  and  Receiverships  Superseded  by  Bankruptcy."  Also, 
see  "Conflict  of  Jurisdiction — Second  Exception." 

Summary  Jurisdiction  over 

Order  on  not  to  require  Surrender  of  more  than  in  his  hands,  §  1830, 
p.    1125. 

Receivership  Superseded,  not  Adverse   Claimant,  §   1827,  p.   1122. 

Subj'ect  to  Summary  order,  after  receivership  superseded  by  bank- 
ruptcy, §  1829,  p.  1125. 

None  to  compel  Surrender  by,  until  adjudication,  §  1461,  p.  867;  ? 
1828,  p.   1124. 


GKNKRAL  INDEX.  2235 

RECEIVERSHIPS 

As  acts  of  ■  bankruptc}',  see  "Acts  of  Bankruptc}^ — Assignments  and  Re- 
ceiverships, as." 

Operating  to  create  "Liens  by  Legal  Proceedings,"  §  1446,  p.  855. 

Superseding  of  custody  of  receiver  by  bankruptcj-  court,  see  "Assignments 
and    Receiverships    Superseded    by    Bankruptcy." 

RECEIVERSHIPS  AND  TRUSTEESHIPS 
As  Acts  of  Bankruptcy 

"Applied  for"  by  Debtor 

Debtor  must  have  applied  therefor,  §   152,  p.   132. 
Insolvency  at  Time  of  Application    requisite,  §   153,  p.  132. 
Insolvency  must  be  according  to  Bankruptcy  Definition,   §   15."!.   p. 

132. 
Burden  of  Proof  of  Insolvency  not   shifted  by  debtor's   failure  to 
Produce    Books   and   Appear   for   Examination   at   Trial,   §   154.   p. 
133. 
"Because  of  insolvency,"  §  155,  p.  133. 

Actual  Insolvency  not  requisite,  §  155,  p.  133. 

"Insolvency"   alleged    need   not    be    insolvency    accord'ng   to    bank- 
ruptcy definition,  §  156,  p.  133. 
"Insolvency"  must   be   Ground  for   receivership   in   State    Lav,-   and 

appointment  based  on  that  ground,  §  157,  p.  133. 
Ground  of  receivership  as  being  Insolvency  provable   only  by  rec- 
ord,  imless   record   silent,    §    158,   p.    134. 
Receiver,   but  not   on   ground,  of   Insolvenry,   not   this   act   of  bank- 
ruptcy, §  159,  p.   136. 
Receivership  to  Wind  up   Insolvent   Pirliiership   on  Death  of  Part- 
ner, §  159,  p.  136. 
In  General,  §  144,  p.  126;  §  145,  p.  128;  §  151,  p.  132. 
Fraud  not  Implied,  §  144,  p.  126. 
Receivership    not    considered    "Equivalent"    of    General    Assignment,    § 

150,  p.   130. 
Trusteeships 

"Appointment"   of   trustee   need   not   nece.^sr^rily   be   by    a    Court.    § 
160,  p.  138. 

RECKLESS  REPRESENTATIONS 

Obtaining  Property  by  false  and,  excepted  from  discharge,  §  2753,  p.  1619. 

RECLAMATION,  SURRENDER  OR  REDELIVERY 

Commingling  of  Trust  Funds  or  Trust  Property,   §  1884,  p.   117.',. 

Converted  Property  or  its  traced  proceeds,  rechii^iiatle,  §  1882.  p.   IICS. 

Costs  and  Expenses  taxable,  §  2010,  p.  1246. 

Goods  Bought  under  Misrepresentations  or  while  grossly  insolvent,  re- 
clamation of,   §   1879,  p.  1165. 

Goods   Stopped  in  Transitu,  §   1881,   p.   1168. 

Ordering  Trustee  to  Surrender  property  to  Rightful  Owner,  §  1872,  p.  1163; 
§    1873,  p.   1163. 

Petitions   for,   §   1876,   p.   1164. 

Property  left  for  Repairs,  Storage  or  Other  Bailment,  reclamation  of,  § 
1877,  p.  1165. 

Property  Bought  on  Conditional   Sale,  reclamation  of,  §  1878,  p.   1165. 


2236  GENERAL  INDEX. 

RECLAMATION,  SURRENDER  OR*  REDELIVERY— Continued. 

Reclaiming  part  still  in  trustee's  hands,  Proving  Claim  for  balance,  §  1880, 

p.  1168. 
Referee  has  Jurisdiction,  §  1874,  p.   1164. 

Replevin  Suits  against  Trustee  or  Receiver  not  maintainable,  §  1875,  p.  1164. 
"Tracing  Trust  Funds,"  §  1883,  p.  1169. 

RECONSIDERATION  OF  CLAIMS 

See  "Re-Examination  of  Claim."     Also,  see  "Allowances  of   Claim." 

RECORD 

Of  Adjudication 

Existence  of  Jurisdictional  Facts  need  not  appear  on  Face  of  Record,  § 

30,  p.  51  n;  §  437,  p.  279. 
Imports  Jurisdiction,  §  437,  p.  279. 
But    if    Lack    of    Jurisdictional    Facts    affirmatively    appears    on    Face, 

Decree  void,  §  30,  p.  51  n. 

On  Appeal 

Assignment  of  errors,  Prayer  for  reversal  and  Citation,  must  be  shown, 

§   2970,   p.    1729. 
Complete   Record  to  be  made,   §   2962,  p.   1726. 
Not  to  be  Contradicted,  §  2967,  p.  1727. 

May  not  be  Explained  or  Extended  by  evidence  dehors,  §  2967,  p.  1727. 
Imports   verity,   §   2967,   p.    1727. 

Need  certify  only  so  much  as  suiificient  to  exhibit  error,  §  2963,  p.  1726. 
Parties  may  Stipulate    as  to  what  is  necessary,  §  2964,  p.  1727;  §  2965, 

p.  1727;  §  2966,  p.  1727. 
To  be  Printed,  §  2975,   p.  1731. 

Remedies   for    Incomplete   transcript,   §   2968,   p.    1728. 
Must  be  Stipulated  or  Certified,  that  it  is  complete  record  of  all  neces- 
sary, §  2966,  p.  1727. 
Sufficient  if   contains   all   on   which   District   court   acted,   if  not   all   on 

which  referee  acted,  §  2974,  p.  1730. 
Supplementing  facts  shown  on  record,  §  2967,  p.  1728  n. 
To  Supreme  Court,  §  3023,  p.  1748. 

Time  of  Perfecting  appellate  proceedings  to   appear,   §   2972,  p.   1730;   § 
2983,  p.  1733. 
Duty  of  Referee  to  Keep,  Perfect  and  Transmit  record,  §  513,  p.  322. 
Duty  of  Referee  to  make  up,  §  511,  p.  322. 
Of  Referee,  Certifying  to,  §  2299,  p.  1401. 

Of  Referee  to  show  Notice  and  to  whom  given,  §  1983,  p.  1230. 
On  Review 

No  "Bill   of  Exceptions,"  §  2954,  p.   1724. 

Findings  of  Fact,  §  2955,  p.  1724. 

Insufficiency  of  Grounds  for  Order  to  Appear  from,  §  2952,  p.   1723. 

Issues  of  Law,  to  be  presented  by,  clearly  and  distinctly,  §  2951,  p.  1723. 

"Opinion"   of  District  Court,  insufficient.  §   2956,  p.   1724. 

Of  Referee's  Orders 

Certificates  to  appear,   §   2852,  p.   1665. 

Remedies    for    Incomplete    Record,    §   2856,    p.    1667. 


GENERAL  INDEX.  2237 

RECORD— Continued. 

Order   Complained   of,  to  be   set  forth   in,  §  2950,  p.   1723. 
Testimony   and   other   Evidence,   whether   to   appear   therein,   §   29.53,   p. 
1724. 
Transmission    of    referee's    record    and    files,    on    closing   estate,    §    2299,    p. 
1401. 

RECORDER 

Filing  of  Certifica^te  with,  where  real  estate  among  assets,  §  920,  p.  522. 

RECORDING 

Agreement  to  Insure  Operating  as  Equitable  Assignment,  §  1253,  p.  740. 
Chattel  Alortages  or  Conditional  Sales  made  in  state  where  recording  not 

'"required"  but  Contemplating  Delivery  where  "Required,"  §  1247,  p.  739. 
"Creditor  Armed  with  Process  must  exist,"  else  transfer  not  void  for  lack 

of  record,  §  1233,  p.  733. 
Defective  Refiling  of  Chattel  Mortgage,  §  1240,  p.  736. 
Disguised. Conditional  Sales  Void  for  Want  of,  §  1246,  p.  739. 
Equitable  Liens  upon  Property  alreadj'  Pledged,  §  1252,  p.  740. 
Equitable   Liens  not  "Requiring"  record,  §  1372,  p.   800. 
Equitable   sequestrations   insufficient   under   State   law   to   avoid   unrecorded 

instruments,    likewise   Bankruptcy    Insufficient,    §    1235,    p.    734. 
Essential  to  Protection  of  lien  given  within  four  months,  where  "required, 

to  impart  notice,"  §  1507,  p.  901. 
"Four  :Months"  to  Date  from,  §  185,  p.  152;  §  1367,  p.  794. 
Lack   of,   where   Damage   or   other   Additional    Conditions    also   requisite   to 

avoid  transfer,  §  1234,  p.  734. 
Liens  void  as  to  "creditors"  for  want  of,  void  as  to  trustee,  §  1229,  p.   731. 
Lien  on  Both  Real  and  Personal  propertj%  §  1256,  p.  741. 
Meaning  of  "Required,"  §  1232,  p.  733. 

I\Iechanic's  and  Subcontractor's   Lien  not  recorded  nor  filed  till  after  bank- 
ruptcy, §   1255,   p.   741. 
Permitting  Levy  after  bankruptcy  in  order  to  "Arm  with  Process"  against 

unfiled   instruments,   §   12.39,   p.    735. 
Preferences  as  Affected  by,  §  1379,  p.  803;   §  1380,  p.  808;  §  1381,  p.  808. 
"Required"  Only  as  to  Bona  Fide  Purchasers  and  Encumbrancers,  what,  § 

1382,   p.   810. 
Not  "Required,"  not  void  for  nonrecord,  §  1243,  p.  738. 
Not   "Required"   whether   preference   Dates   from  taking  of   Notorious   and 

Exclusive,  etc.,  possession,  §  1381,  p.  808. 
Not  "Required,"  but  merely  "Permitted,"  §  1383,  p.  810. 
Not  "Required,"  Preference  Dates  from  Actual  Transfer,  §  1380,  p.  808. 
Taking  of  Possession  Curing  Lack  of,  §  1236,  p.  734;  §  1384,  p.  812. 
Taking  of  possession  within  four  months  under  unfiled  Mortgages,  §  1236, 

p.   734;   §   1384,  p.   812. 
When  "Transfer"  Consumated,  where  recording  necessary,  §  1334,  p.  782. 
Unfiled  or  unrecorded  chattel  mortgages  void,  §  1230,  p.  732. 
Unrecorded  or  Unfiled  Conditional  Sales  Contracts  void,  §  1241,  p.  736. 
Unrecorded  Real   Estate  Mortgages,  §   1248,  p.   740. 
Unrecorded  Sales  of  Personalty,  §  1249,  p.  740. 

RECORDS  IN  BANKRUPTCY,  §  560,  p.  339. 

Of  Referee,  to  show  Notice  and  to  Whom  given,  §   1983,  p.  1230;  §  562,  p. 
340. 


2238  GENERAI,  INDEX, 

RECOVERY 

Either    property    or   its    value    recoverable,    where    fraudulently    transferred, 
§  1226,  p.  726. 

REDEEMING  FROM  LIENS 

Adverse    Claimants    in    Possession,    Jurisdiction    over    not    to    be    acquired 

under  Guise  of  Petition  to  Redeem,  §  1871,  p.  1163. 
Cancellation,  Assignment   or   Release,  whether  Jurisdiction  to   order   exists, 

on  tender  of  undisputed  amount  due,  §  1826,  p.   1121;   §  1870,  p.   1163. 
Jurisdiction,   §   1868,  p.    1126. 
Procedure,  §  1869,  p.  1162. 

Petition    to    Redeem   and    Notice,    §    1869,    p.    1162. 
Trustee  may  redeem,  §  937,  p.  525;  §  1197,  p.  697. 

REDELIVERY 

Petition  for  order  on  trustee  to  redeliver  property  to  third  parties,  §  1876, 
p.  1164. 

See  "Reclamation,  Surrender  or  Redelivery." 

REDEMPTION 

Of  Life  Insurance  Policies,   see  "Life  Insurance  Policies  as  Assets." 
Of  property  from  liens,  see  "Redeeming  from  Liens." 

RE-ENTRY 

Clause  of  in  lease,  gives  no  lien  on  sale  of  leasehold,  §  992,  p.  552  n. 

RE-EXAMINATION    OF    CLAIMS 

Allegations  of  Petition  to  be  Specific,  §   837,  p.  483. 

Claimant  must  present  himself  for  examination,  §   846,  p.   488. 

Nonresident    creditor    exempt    from    service    of   summons    while   in    at- 
tendance on  re-examination  of  hi«  claim,  §  846,  p.  488  n. 
Creditor  to  File  Answer,  §  841,  p.  484. 
Creditor  may  not  have  re-examination  of  his  own  claim  after  disallowance, 

§  825,  p.  478. 
"Good  Cause"  to  be  shown,  §  838,  p.  483. 
Jurisdiction,  §  811,  p.  473;  §  817,  p.  475. 
Jury  Trial  not  available,  §  849,  p.  489. 
None  after  closing  of  estate,  §  861,  p.  493. 
Notice  on  creditor  requisite,  §  839,  p.  484. 
Notice  by  referee,  and  may  be  by  Mail,  §  840,  p.  484. 
Though   but  One  Creditor  in  position  to   object,  yet  trustee   may  object,   § 

828,  p.  480. 
Original   Order  of  Allowance,  Prima  Facie   case,  for  creditor,  §  843,  p.   484. 
Petition  for,  requisite,  §  836,  p.  482. 
Place  for  Examination   of  Claimant,  §  847,  p.   489. 
Reimbursement  of  nonresident   Claimant  for  Expenses  in  Attendance  on,  § 

828,  p.  489. 
Reconsideration  refused  for  Trustee's  Laches,  §  842,  p.  484. 
Special  Defense,   Creditor  holding,  yet  may  not  have  re-examination   in  his 

own  name,  §  829,  p.  483. 
Sufficiency  of  Petition  for,  tested  in  the  usual  way,  §  837,  p.  483. 
After  Trustee  elected,  to  be  by  him  or  in  his  Name,  §  824,  p.  472. 
Trustee  refusing  to  petition  for,  may  be  ordered,  §  826,  p.  479. 


GENERAL  INDEX.  2239 

RE-EXAMINATION  OF  CLAIMS— Continued. 

Trustee    refusing,   creditor   or   bankrupt   permitted   to   re-examine,   §    826,   p. 

479. 
Using  Trustee's  Name — Where  trustee  himself  refuses,  §  827,  p.  479.     See, 

also,  "Using  Trustee's  Xame." 
Trustee's  Attorney  not  to  act  as  claimant's  attorney,  §   851,  p.  490. 
"Variance  between  Claim  and  Proof,  §  850,  p.  489. 
Witnesses,  see  "Witnesses." 
Evidence,  see  "Witnesses." 

REFEREE  IN  BANKRUPTCY 

Application   to   Vacate   Adjudication   to   be   to   Judge,   not   referee,   §    430,   p. 

276. 
Contempt  before 

What  constitutes,  §  2334,  p.   1417. 

Referee  no  power  to  commit,  §  2235,  p.  1418. 

To  Certify  facts  to  judge,  §  2336,  p.  1418. 

Making  of  certificate  of,  is  judicial  act,  not  ministerial   dut}-,  §  2337,  p. 
1418. 

Review  of  Refusal  to  certif}-,  §   2342,  p.   1419. 
Duties  of,  §  506,  p.  321. 

To  Audit  Trustee's  accounts,  §  517,  p.  323;  §  2291,  p.  1398. 

To  Audit  Receiver's   accounts,  §  518,  p.   323;   §   2291,   p.   1398. 

To  Cause  Schedules  to  be  prepared  where  bankrupt  derelict,  §  512,  p. 
322. 

To  Declare  Dividends  and  to  prepare  dividend  sheets,  §  507,  p.  321. 

To  Examine  Schedules,  §  508,  p.  321. 

To   Furnish  Information,  §   509,   p.  321. 

To  Get  Papers  from  clerk,  §  516,  p.  323. 

To  Give  Notice  to  Creditors,  §  510,  p.  322;  §  564,  p.  342. 

Certificate   on   Review,  whether  to  be   prepared  by  Referee,  §   2853,  p." 
1665. 

To  Keep,  Perfect  and  Transmit  records,  §  513,  p.  322. 

To  [Make  Up  Records  and  Findings  for  Review,  §  511,  p.  322. 

To   Preserve  evidence,  §  515,  p.   322. 

To  Transmit  to  clerk  papers  on  tile,  §  514,  p.  322;  §  2299,  p.  1401. 

Need  not  notify  bankrupt  to  file  petition  for  discharge,  §  2428,  p.  1467. 
To  Transmit  Petition  and  Certificate  on  Review,  §  2859,  p.   1669. 
Expenses  of 

Entitled  to  remibursement,  §  2028,  p.  1259. 

Not  covered  by  "statutory  compensation,"   §  2029,  p.   1259. 

What  are  proper,  §  2030,  p.  1259. 

No   reimbursement  of,  where  expenses   not   required  by  act  or  rule,  § 
2031.  p.  1260. 

Method  of  apportioning  to  various  cases,  §  2032,  p.  1261. 

Fees  of,  §  2102,  p.  1299. 

No   additional   compensation,   §   2117,  p.   1305. 

Commissions,   §   2103,   p.    1299. 

Computed  on  disbursements  to  creditors,  §  2103,  p.  1299. 

Computed  oi|  Disbursements  to  priority  and  secured  creditors,   §   2104, 

p.  1300. 
Composition   Cases,   commissions  in,  §  2106,  p.   1300. 


2240  GENER^^L  INDEX. 

REFEREE  IN  BANKRUPTCY— Continued. 

Sales  free  from  Liens,  how  commissions  computed,  §  1996,  p.  1236. 

Sales  Free  from  Liens,  commissions  when  lienholder  is  purchaser,  § 
2105,  p.  1300. 

"Twenty-five  cents  for  each  claim  tiled,"  part  of  referee's  "Compensa- 
tion," §  2107,  p.  1301. 

In  General 

Reference    to  §  520,  p.  324. 

Judge  may   Dispense  with   referee   and  retain   charge   himself,   §   519,  p. 

323. 
Reference  after  adjudication,  §  521,  p.  324. 
Reference   before   adjudication,   §   521,   p.   324. 
General    Reference,    §    521,    p.    324. 
Special  Reference,  §  521,  p.  324. 
Reference    to    another   referee,    §    522,   p.    324. 

Hearings  before 

Competency  of  Witnesses  governed  by  U.  S.  Statutes,  not  by  State 
Statutes,  §   551,  p.  335.  ' 

Evidence  to  be  ruled  on  and  admitted  or  excluded  by,  §  552,  p.  335;  § 
1554,  p.  928. 

Evidence  to  be  heard  by,  §  553,  p.  337. 

Governed  by  U.  S.  Equity  Rules,  where  act  and  rules  silent,  §  550,  p. 
335. 

Proceedings  before  referee  Summary,  §  548,  p.  333. 

Bft  not   on  plane   of  depositions   before   notaries,   §   549,  p.   334. 
Nor  of  hearings  before  masters  in  chancery,  §  549,  p.  334. 
See   "Witnesses   and   Evidence." 
Impeaching  of  own  Order  by,  not  Permissible,  §  1773,  p.  1077. 
Indemnity  in  Advance,  may  be  required  by,  §  2021,  p.  1257. 
«         "Interested,"  forbidden  to  act  where,  §  504,  p.   321. 

Jurisdiction  of 

Li   Absence   of  Judge   may   Issue   Warrant    for    Seizure    of  property-,    § 

337,   p.   232;   §   525,   p.   328. 
Appointment  of  Receiver  by,  before  adjudication,  §  379,  p.  250. 
Appointment   of   Receiver   by,   after   reference,   §    380,   p.   251. 
Confirmation  of  Composition,  Referee  has  no  jurisdiction,  §  2373,  p.  1436. 
Costs,  may  be  taxed  by,  §  535,  p.  331;  §  ]995,  p.  1234;  §  2002,  p.  1244. 
Divested  by  Confirmation  of  Composition,  §  2391,  p.   1445. 
Distribution  ordered  by  Referee,  §  536,  p.  331. 
None  to  enjoin  court  or  court  officer,  §  2701,  p.  1601. 
Payment  of  Priority  claims  may  be  ordered  by  Referee,  §  536,  p.  331. 
Sale  before  adjudication,  in  judge's  absence  may  be  ordered  by  Referee, 

§  534,  p.  331;  §  1946,  p.  1214. 
Special  Master  on  Composition  matters,  §  2374,  p.  1437. 
Surrender  of  Property  to  Rightful  owner,  may  be  ordered  by  Referee, 

§  1874,  p.  1164. 
Witnesses  may  be  ordered  by  Referee,  to  appear  for  examination,  §  537, 

p.    332. 

Orders  of,  §   561,  p.  340.  .  , 

Order  to  recite   Notice,  Appearance  and  Hearing,   §  562,  p.  340. 
Orders   of.   Res   Judicata,   §   1771,   p.   1076;    §   1772,   p.    1077. 


GENERAL  INDEX.  2241 

REFEREE  IN  BANKRUPTCY— Continued. 
Pleadings  and  Practice  before 

See  '"Marshaling  of  Liens." 

See  "Reclamation,   Surrender  and  Redelivery." 

See  "Restraining  Orders  and   Injunctions."' 

See  "Sales  in  Bankruptcy— Selling  Property  Free  from  Liens." 

See  "Summary  Orders  on  Bankrupts  and  Others." 
Practicing  in  Bankruptcy  by  forbidden,  §  505,  p.  321. 
Purchasing  of  bankrupt's  assets  by,  forbidden,  §  505,  p.  321. 
Records  and  Files  of,  §  560,  p.  339. 
Review   of   referee's   orders,    see   "Appeal    and    Error — Review    of    Referee's- 

Orders." 
Summary  Orders  of,  set  aside  only  for  Alanifest  Error,  §  1854,  p.  1153. 
Vacating  and  Modifj^ing  of  Orders  and  Findings  of,  §  563,  p.  340. 

REFERENCE 

To  referee,  §  520,  p.  324. 

After  adjudication,   §   521,   p.   324. 

Before  adjudication,  §  521,  p.  324. 

General,  §  521,  p.  324. 

Special,  §   521,  p.   324. 

To  another  referee,   §  522,  p.   324. 

REFUSAL 

Of    Discharge,    see    "Discharge — Second    Petition    for."      Also,    see    "Dis- 
charge— Res  Judicata.'' 

REFUSAL  TO  ANSWER  QUESTION 

As  bar  to  Discharge,  §  2580,  p.  1548;  §  2581,  p.  1548. 

REFUSAL  TO  OBEY  COURT'S  ORDER 

As  bar  to  Discharge,  §  2580,  p.  1548. 

See    "Discharge — Opposition    to — Grounds    of — 'Refusal    to    Answer    Ques- 
tion.' " 

REHEARING 

After   Disallowance,   creditor  may   have,   though   not   a   "re-e.xamination,''   § 

825,  p.  478. 
Where  mere   Pretense  to   Revive   Right  of  Appeal,   §   859,  p.   492. 
Review  of  Referee's  order  refusing,  §  850,  p.  489. 

REIMBURSEMENT 

Of  .\ttorncys'  Fees  Paid  by  bankrupt  in  Advance,  none,  §  2024,  p.  1258. 
Of  Bankrupt 

Care   of   E.xempt  property,  none   for,   §    1092,   p.   617;   §   2025,   p.   1258. 
Bankrupt  Voluntarily  Removing  Residence  after  adjudication,  no  reim- 
bursement of,  §  1578,  p.  945. 
Of  Creditors  through  whose  efforts  Concealed  Assets  recovered,  §  1713,  p. 
1057;  §  2015.  p.  1252;  §  2016,  p.  1253;  §  2018.  p.  1255. 

Must  have  resulted  to  benefit  the  estate,  else  no  reimbursement,  §  1714, 

p.  1057. 
Property  must  have  been  "transferred"  or  "Concealed"  by  "bankrupt," 
else  no  reimbursement,  §  1715,  p.  1058. 

2  Rem  B— 66 


2242  GENERAL  INDEX. 

REIMBURSEMENT— Continued. 

Trustee  to  be  given  first  opportunity,  §  2017,  p.  1253. 

None  for  Contesting  Unjust  Claims  Before  Election  of  Trustee,  §  201S, 
p.  1254;  §  2057,  p.  1279. 
Of  Expenses  Advanced,  §  2022,  p.  1257. 

To  Follow  Order  of  Priority  of  Expenses  themselves,  §  2026,  p.  1258. 
Of  Fraudulent  Transferee 

On  Setting  Aside   Constructively  fraudulent  transfer,   §   1734>^,  p.   1067. 
Of  Nonresident  Claimant 

Ordered   to   appear   on   re-examination   of    Claim,    entitled    to,   §    848,   p. 
489. 
Of  Original  Deposit,   none   except   to  petitioning  creditors,   §   2023,   p.   1257. 
Of  Referee 

See  "Referee  in  Bankruptc}- — Expenses  of." 

REJECTION  OF  CLAIMS 

See  "Allovifance  of  Claims." 

RELATIVES 

Allowability  of  claims  of,  §  797,  p.  465. 

Child's  claim,   allowability   of,   §   799,   p.   467. 

Close  Scrutiny,  Rule  of  prevails  as  to  claims  of  relatives,  §  800,  p.  467. 

DeaUngs  between  Near,  to  be  scrutinized  with  care,  §  556,  p.  338. 

Disbursements  to,  on  Eve  of  Insolvency  upon  alleged  debts  omitted  from 

previous  statements  of  financial  condition,  §  2521,  p.  1518  n. 
Excluded  in  determining  Number  of  Creditors  to  join  in  petition,  §  199,  p. 

164. 
Husband's  xA.dmissions  while  acting  as  "manager"  for  wife,  §  559,  p.  339. 
Parent's  claim,  §  799,  p.  467. 

Petitioning   Creditors,   relatives   may  be,   §   215,  p.   174. 
Votes   Cast  by,  for  Trustee,  §  888,  p.  508. 
Wife's  claim,  allowability  of,  §  798,  p.  466. 

RELEASE  FROM  DEBTS 

See  "Discharge." 

REMAINING  PARTNER 

See    "Partnership — Selling   of   Partner's    Share." 

REMANDING 

For   Further  Testimony  before  referee,  §  2863,  p.  1673. 
REMEDIES 

For   Incomplete  Transcript  on  Appeal,   §   2968,  p.   1728. 
REMOVAL 

Of  Referee,  §  499,  p.  319.     . 
REMOVAL  ANt)  DEATH 

Of   Trustee 

See   "Trustee,   Removal   and  Death   of."  , 

"REMOVED"  AND   "REMOVAL" 

Meaning  of  Terms  as  Acts  of  Bankruptcj-,  §  107,  p.  105. 
Forcible  Seizure  by  Creditor  not  Fraudulent  Removal  by  Bankrupt,  §  109. 
p.  107. 


GENERAL  INDEX.  2243 

RENT 

Accruing  on  Exempt  property  after  adjudication  is  also  exempt,  §  1047,  p. 
595  n. 

Of  Bankrupt's  Mortgaged  Premises,  uncollected  or  accruing  after  bank- 
ruptcy, §  993,  p.  553;  §  1885,  p.  1180  n. 

For  Care  of  Exempt  property  pending  setting  ofif,  §  1093,  p.  617. 

Payment  of  Current  rent  not  Preference,  §   1317,  p.   773. 

Whether  Tcustee  Bound  to  pay  rent  stipulated  or  only  for  use  and  Occu- 
pation of  premises,  §  985,  p.  549;   §  2034,  p.  1261. 

RENUNCIATION 

Of  Obligation   operating  as  Breach  of  Continuing  Contract,  §  G90,  p.  417. 

REOPENING   OF   ESTATE 
Application  for 

To  be  to  Judge,  §  2308,  p.  1403. 

No   Formality  requisite  in,   §   2309,   p.   1403. 

Xot   to   be   Indefinite:   should   be   verified   and   show  assets    unadminis- 

tered  or  other  lack  of  "full"  administration,  §  2310,  p.  1403. 
Not  a  "suit"  within  meaning  of  §  11  (d)  limiting  "suits"  to  two  years, 
§  2307,  p.  1403. 
Duty  of  court  to  reopen  on  proper  showing,  §  2302,  p.   1402. 

Effect  of 

Bar  of  Statute  of  Limitations,  whether  lifted,   if  estate  reopened  after 
two  years,  §  1791,  p.  1083  n. 

See  "Closing  of  Estate." 

Year's    Limitation   for   Proof   of   claims    not   tolled   bj',   §   2315,   p.   1405. 
Jurisdiction,  §   2300,  p.   1401. 

Lack  of  "Full"  administration,  what  is,  §  2304,  p.  1402. 
Matter  of   sound   discretion,  §  2303,   p.   1402. 
Only  One   Ground  for— lack  of  full   administration,  §  2301,  p.   1402. 

Procedure  subsequent  to 

Trustee   elected  anew  and  administration  to  proceed  in  usual  manner, 
§    2314,   p.   1404. 
Reasonable  Time,  reopening  must  be   within:    Laches   will  bar,   §   2306,  p. 

1403. 
Time  Limited,  none  for  application  to  reopen,   §  2305,  p.   1402. 

Who  may  Apply  for 

Only    Creditors    who    have    proved    or    maj^    prove    claims,    competent, 
§  2311,  p.  1404. 

Who  may  Oppose,  §  2312,  p.   1404. 

Whether  third  party  who  has  interests  in  property  competent,  §  2313, 
p.   1404. 

REPAIRS 

Reclaiming  of  Propertj'  left  with  bankrupt  for,   §   1877,  p.   1165. 

REPEAL 

Of  Former  United  States  Bankruptcy  Laws,  causes  for,  Introd.   (k),  p.  12; 
Introd.   (1),  p.   12;  Introd.   (m),  p.  13. 


2244  GENERAL  INDEX. 

REPLEVIN 

From    Court    Officer 

Where   Lien   b}'   Legal   proceeding   Xullified   by   bankruptcy,   §    1475,   p. 
878. 
Seizure  on,  made  first  by  State  court,  replevin  not  Abated,  §   1585,  p.  958. 
Substitution  of  Trustee  for  bankrupt  in  pending  replevin,  §  16-16,  p.  1012. 
Trustee  or  Receiver,  no  replevin  from,  §  1875,  p.  1164. 

Unfounded   replevin    actions,    whether   create    "liens    by   legal   proceedings," 
§  1443,  p.   853. 

REPORT 

See  "Accounts  and  Reports." 

See  "Trustee  in  Bankruptcy." 

Of  receiver,  see  "Accounts."     Also,  see  '"Receiver." 

Of  sale,  free  from  liens,  §  19.86,  p.  1230. 

Of  Trustee 

Of  Exempted  Property,  §  1074,  p.  611. 

Bankrupt  may  except  to,   §  1081,  p.  613. 

Burden,  of  proof  on  bankrupt,  if  exceptions  amount  to  general  de- 
nial, §  1086,  p.  615. 

Creditors  may  except  to,  §  1081,  p.  613. 

Creditors  must  file  exceptions  within  thirty  days,  §  1082,  p.  613. 

To   be    Itemized   with   estimated  values,   §   1075,   p.   611. 

Pleadings,  what  are  necessary,  on  exception  to,  §   1083,  p.   614. 

Verification  of  exceptions,  whether  requisite,  §  1084,  p.  614. 

Who  may  except  to,  §  1081,  p.  613. 

Approval  of,  ,§   2288,  p.   1398. 

Auditing  of,  §  2291,  p.  1398. 

Exceptions  to,  §  2293,  p.  1399;  §  2294,  p.  1399. 

Final  report,  §  2295,  p.  1400;  §  2296,  p.  1401;  §  2297,  p.   1401. 

Form  of,  §  2285,  p.  1397. 

Notice  of,  §  2288,  p.  1398. 

Review  of  order  approving,  §  2287,  p.  1398. 

When  to  be  made,  §  2285,  p.  1397;  §  2297,  p.  1401. 

REPORTING  OF  FRAUDS 

A  Duty  of  the  bankrupt,  §  459,  p.  303. 

"REQUIRED" 

Meaning  of,  §   1232,   p.   733. 

Unrecorded  lien  not  void   where   Recording  not   "Required,"   §   1243,   p.   738. 

See  "Recording." 

RES 

Possession   of.  Test  of  Summary  Jurisdiction   of  bankruptcy   court,   §   1796, 

p.  1088;  §  1807,  p.  1101. 
Possession    of,    and    service    of   notice,    insufficient    to    render   Judgment    in 

Personam,  §  1892,  p.  1183. 

RESALE 

After   Refusal  to  Confirm  sale,  §   1961,  p.  1221. 

RESCISSION  FOR  FRAUD 

Right  of,  unaffected  by  bankruptcy,   §   1169,   p.   687;   §    1817,  p.   1114. 

Reclamation   of  goods   by   seller,  upon,   §   1879,   p.    1165. 

Reclamation  where  goods  bought  when  "Grossly  Insolvent,"  §  1879,  p.  1165. 


GEXERAL  INDEX.  2245 

RESIDENCE 

Bankrupt  voluntarily  Removing,  after  adjudication,  not  entitled  to  Reim- 
bursement,  §   1578,  p.  945. 

Estoppel  to  Deny,  §  33,  p.  54  n. 

Residence  of  one  Partner  sufficient  to  confer  Jurisdiction  over  Partner- 
ship,  §   36,   p.   55. 

RESIDENCE,  DOMICILE  OR  PRINCIPAL  PLACE  OF  BUSINESS 

All  Three  Qualifications  not  Coincidentl}-  requisite,  §  33,  p.  52. 

Jurisdictional,  §  31,  p.  52. 

Lack  of,  Sufficient,  not  Bar  to  Discharge,  §  2477,  p.   1495. 

Limitation  as  to,  §  31,  p.  52. 

Residence  and  Domicile  Distinguished,  §  33,  p.   52  n. 

Voluntarj-   Petition  to  show,  §   191,  p.   158. 

RES  JUDICATA 

Adjudication  of  Bankruptcy   as,   see   "Adjudication   of   Bankruptcj-,   as    Res 

Judicata." 
Ad-judicat-on  as  to  Fraud  on  Discharge,  not,  in  suit  by  trustee,  §  1774,  p. 

1077. 
As  to  Claims 

Adjudication    not,    as    to    Petitioning    Creditors'    Claims,    §    790,    p.    463; 

§    1359,    p.    792. 
Allowance  or  Disallowance  of  claim  is,  §  791,  p.  463;  §  1771,  p.  1076;  § 

2655,   p.    1578. 
Binding  in   allowance   of  claims,   §   789,   p.   463. 
"Provisional"  Allowance  improper,  §  793,  p.  464. 
Referee's   order   determining   validity   and   priority   of   liens   is,   §    1772. 

p.  1077. 
Referee  not  to  impeach  own  order,  §  1773,  p.  1077. 

Trustee's  Failure  to  Contest  Allowance  of  Claim  bar  to  suit  to  recover 
preference,  §  792,  p.  464. 
Decision  of  State  Board  of  Assessment  as  to  taxes,  whether  is,  §  2158,  p. 

1332. 
Erroneous  Judgment  notwithstanding   Discharge   dulj^  pleaded   and   proved 

is,   until   reversed,  §   2687,   p.   1596. 
Fraudulent  Conveyance  suit.  Decree  in,  whether  res  judicata  on  Discharge, 

§  2655,  p.   1577. 
Former  Refusal  of  Discharge,  res  judicata  as  to  old  debts,  §  2575,  p.  1547. 
Judgment,  whose  Lien  null  under  §  67  (f)  nevertheless  is,  §  778,  p.  460;  § 

1449,  p.  858. 
Judgment  of  state  Court  as  to  Exemptions  in  same  fund,  is,  §  1087,  p.  615. 
Judgment    on    Provable    debt    after    bankruptcy    and    before    Discharge,    as, 

§   699,  p.  423. 
Order    approving   or   disapproving   trustee's    report    of    exempted    property, 

res  judicata  elsewhere,  §  1086,  p.   615. 
Refusal  of  Discharge  for  Concealment,  whether  is,  on  Summary  Order  for 

Surrender.   §    1845,   p.    1142   n. 
Refusal  of  Former  Discharge  as 

Is  res  judicata  as  to  all  claims  then  provable,  §  2666,  p.  1587;  §  2680,  p. 
1594. 
'  Debts  in   Subsequent   Bankruptcy   partly   same,  partly  new,  whether,  ^ 

2438,  p.  1474.  ' 


2246  GEXERAI,  INDEX. 

RES  JUDICATA— Continued. 

Dismissal   or   Failure   to    File    Petition   for   discharge,   in   effect   a   judg- 
ment  refusing  discharge,  §   2436,  p.   1470. 
No  bar  to  Subsequent  Bankruptcy  Petitions  nor  adjudications,  §  2441, 

p.    1477;    §    2579,   p.    1548. 
Second  petition  for   discharge   not   maintainable,   §   2437,   p.   1471. 
Under  State  Insolvency  Proceedings,  is  not,   §  2681,  p.   1594;  §  2440,  p. 

1477. 
Under   Former   Bankruptcy   Act,   is   not,   §   2439,   p.   1476. 
Refusal    of   Summary    Order   to    Surrender    Assets,    not,    in    plenary    action, 
§    1775,    p.    1077. 

RESTRAINING   ORDERS   AND    INJUNCTIONS 

Ancillary    Injunction,    none    in    aid    of    bankruptcy    proceedings    in    another 

District,   §    1912,   p.   1192. 
Adverse    Claimants    restrained    until    Appropriate    Action    can    be    taken,    § 

§   1905,  p.   1190. 
Adverse   Claimants   restrained  from   Interfering  with   assets   in   custody   of 

bankruptcy  court,   §  1906,  p.   1190. 
Adverse   Claimants     restrained   by   orders   issuable   in   bankruptcy   proceed- 
ings, §  365,  p.  243;   §  1654,  p.   1028. 
Assignees  and  Receivers  in  State  courts  enjoined,  §  1610,  p.  978. 
Adverse  Claimants  in  possession  restrained,  §  365,  p.  243;  §  1654,  p.  1028. 
Before    bankruptcy   petition    filed,    no    injunction    to    preserve    Status    Quo, 

§  360,  p.  242;  §  1917,  p.  1194. 
Bankrupt  restrained,  §  364,  p.  243. 

Bankruptcy    petition    "caveat    to    all    the    world"    and    "attachment    and    in- 
junction,"   §    1916,   p.    1194. 
Bond  and  Damages  on  bond,  §  370,  p.  245. 
Comity  requires  Resort  First  to  State  Court,  except  in  exigencj^,  §  362,  p. 

243;  §  1904,  p.  1190. 
Court  Proceedings   Restrained  until  trustee   elected  and  appropriate  action 

taken,   §1598,  p.  964;  §  1636,  p.   1009;   §   1907,  p.   1191. 
Court    Proceedings    enjoined    where    property    in    custodj'-    of    bankruptcy 

Court  sought  to  be  seized  or  levied  on,  §  1908,  p.  1191;  §  1805,  p.  1100. 
Court  Officers  in  Possession,  restrained,  §  366,  p.  244. 

Courts  or  Court  Officers,  referee  no  jurisdiction  to  restrain,  §  1918,  p.  1195. 
>See    "Discharge — Staying   Suits    against    Bankrupt    to    Permit    Interposition 

of." 
Enable  Trustee  to  Intervene  in  Pending  suit,  §  1598,  p.  964;  §  1636,  p.  1009; 

§  1907,  p.  1191. 
Error  in  holding  claim  Dischargeable,  no  warrant  for  'disobedience  of  stay, 

§  2693,  p.  1598. 
Exempt  Property,  Qualified  Stay  where  Levy  sought  on  Exempt  property 

Not  Exempt  as  to  Particular 'M^reditor  levying,  §  2446,  p.  1478;   §  2711,  p. 

1605. 
Filing  of  petition  to  be  in   bankruptcy  proceedings   themselves,   §   1919,   p. 

1195. 
Interference  with  Trustee's   Custody  of  Exempt  property  enjoined,  §   1028, 

p.   577. 
Issued   in   Case   itself,   but   no   part    of   bankruptcy   petition,    §    361,    p.    243; 

§   365,  p.  243;   §   1654,  p.   1028. 
Jurisdiction   to   issue,   §   359,  p.   240;   §   1901,   p.   1187;   §   1918,   p.   1195. 


GENERAL  INDEX.  2247 

RESTRAINING  ORDERS  AND  INJUNCTIONS— Continued. 

Jurisdiction   to   issue  before  adjudication,   §   359,   p.   240. 

Jurisdiction  of  Referee  to  issue,  §  527,  p.  329;  §  528,  p.  330;  §  1918,  p. 
1195. 

Legal    Action    requisite   to    Fix   Liability    of    Sureties,   whether    enjoined,    § 
'  1914,  p.  1193;  §  2712,  p.   1605;   §   2446,  p.   1478. 

Legal  Proceedings  Not  Nullified  by  bankruptcy,  and  State  Court  prior 
in  Custody,  injunction  refused,  §  1909,  p.  119i. 

Levy  on  Exempt  Property  after  same  set  apart,  not  restrained,  §  1915, 
p.  1194. 

Levy  on  Exempt  property,  whether  may  be  restrained  for  other  pur- 
poses than  to  interpose  discharge,  §  1910,  p.  1191. 

Levy  Not  Made  Within  Four  months,  not  enjoined,  §  1903,  p.  1190. 

Liens  by  Legal  Proceedings  Nullified  by  bankruptcy,  injunctions  may  be 
issued  to  aid  bankruptcy  court  to  obtain  possession,  §  1474,  p.  877;  § 
1902,  p.   1189. 

Notice  of,  §  363,  p.  243;  §  1921,  p.  1196. 

Obstructive  Suits  brought  after  bankruptcy  court  acquires  custody,  re- 
strained, §  1805,  p.  1100;  §  1908,  p.  1191. 

Out  of  District  of  Issuance  ineffectual,'  §  367,  p.  244. 

Petition  for,  requisite,  §  1919,  p.  1195. 

Pledgee's  Sale  not  enjoined,  unless  Fraud  or  Oppression  exists,  §  761,  p.  451; 
§  1913,  p.  1192. 

Prayer  for,  none  to  be  in  petition  for  adjudication,  else  multifarious,  § 
250,  p.  190. 

To  Prevent  Trustee  in  bankruptcy  Interfering  with  others'  rightful  cus- 
tody, §  1900,  p.  1187. 

Qualified  Stay  where  levy  sought  on  exempt  property  not  exempt  as  to 
particular   creditor  levying,  §   2711,   p.   1605;   §   2446,   p.   1478. 

Qualified  Stay  where  judgment  necessary  to  perfect  rights  against  surety 
or  property,  §  648,  p.  389;  §  1524,  p.»908;  §  1914,  p.  1193;  §  2446,  p.  1478; 
§  2712,  p.  1605. 

Qualified  Stay,  where  legal  action  necessary  to  perfect  rights  against 
Stockholder,,  on  Liability,  §  1914,  p.  1193. 

Referee  may  issue,   §   527,  p.   329;   §   1918,  p.   1195. 

Referee  may  not  restrain  courts  or  officers,  §   528,  p.  330^  §  1918,  p.   1193. 

Reviewable  by  Petition  to  Revise,  §  2937,  p.  1716  n. 

Sale  or  Distribution  under  Levy  made  within  four  months,  enjoined,  § 
1902,  p.  1189;  §  1474,  p.  877. 

Secured  Creditors   restrained,   §  365,  p.   243,   §   760,  p.   451. 

Suits  in  Personam  against  Receiver,  Trustee  or  Marshal  for  Wrongful 
Seizure   not  restrained,   §   1911,   p.    1192. 

Suits  in   State   Court,   Bankruptcy   Court   may   Stay,   §   2700,   p.    1601. 

Sureties,  Qualified  Stay  of  suit  where  Judgment  necessary  to  Perfect 
Rights  against  surety  or  property,  §  648,  p.  389;  §  1524,  p.  908;  §  1914.  p. 
1193;  §  2446,  p.  1478;  §  2712,  p.  1605. 

Verification  of  Petition  for,  §  369,  p.  245;  §  1920,  p.  1196. 

Who  may  petition  for,  §  368,  p.  244. 
Bankrupt,    §    368,    p.    244. 
Creditors,  §  368,  p.  244. 
Receiver,  §  368,  p.  244. 

RESTRICTIONS  ON  ALIENATION 

Whether  property  passes,  §  975,  p.  546. 


2248  GENERAL  INDEX, 

RESULTING  TRUST 

Concealment   of   propertj'   held    on,   §    2510,   p.    1510. 

Property  held  by  bankrupt  as  trustee  of,  does  not  pass,  §  974,  p.  546. 

Propert}'  held  by  another  for  bankrupt  on,  passes,  §  973,  p.   546. 

"RESULTS  ACHIEVED" 

Element  in   Fixing  Attorneys'   Fees,  §  2047,  p.  1268. 

RETAINER  FEE 

No  place  in  bankruptcy  costs,  §  2050,  p.   1274. 

RETIRING  PARTNER 

See   "Partnership — Selling   of   Partnership   Share." 

RETROACTIVE  LAW 
Amendment  of  1903 

Alay  apply  where  acts  committed  before  1903,  §  2552,  p.  1538;  §  255S, 
p.   1540;   §  2576,   p.   1547. 

Discharge  not  refused  for  acts  committed  before  enactment  of  law,  §  2482, 
p.  1499. 

"False  Oath"  in  bankruptcy  proceedings  under  law  of  1867,  no  bar  to  dis- 
charge, §  2532,  p.   1526. 

"False  Statement  in  Writing"  before  Amendment  of  1903,  whereby  prop- 
erty obtained  on  credit,  sufficient  as  bar  if  proceedings  instituted  after 
amendment,  §  2558,  p.  1540. 

Right  of  discharge  governed  by  law  at  time  of  instituting  bankruptcy  pro- 
ceedings,  §    2483,   p.    1501. 

RETURN  OF  GOODS  TO  SELLER 

Right  of  Rescission  not  existing,  is  a  preference,  §  1302,  p.  764. 
Right  of  Rescission  existing,  not  a  preference,  §  1307,  p.   766. 

REVIEV/ 

See  "Appeal  and  Error." 

Duty  of  referee  to  make  up  records  and  findings  for,  §  511,  p.  322. 
'Of  Findings  of  Arbitrators,  §  925,  p.  523. 
Petition  for,  under,  §  24  (b) 

Exemption     Matters,     petition    for    Review    and    not    appeal    is    proper 

remedy,  §  1110,  p.  634. 
Exemption    matters,    no    review,    unless    trustee    appointed,    §    1111,    p. 
634. 

Petition  for 

When    proper,    and    when    appeal    proper,    §    2880,    p.    1689;    §    2883,    p. 
1693;  §  2884,  p.  1694;   §  2885,  p.  1695;  §  2886,  p.  1695;  §  2887,  p.  1695; 
§    2888,    p.    1696. 
In  "Proceedings  in  Bankruptcy  Proper."     See  "Appeal  and  Error — Appeals 

to  Circuit  Court  of  Appeals — In  Bankruptcy  Proceedings  Proper." 
Of  Referee's  Order  Refusing  to  reopen  hearing,  §  860,  p.  493. 

REVIEW  IN  SUPREME  COURT 
From  Courts  of  Bankruptcy 

Certiorari,  §  3024,  p.  1748;  §  3025,  p.  1749. 
Petition  for  review,  §  3024,  p.  1748. 
Writ  of  Error,  §  3024,  p.  1748. 
From  State  Supreme  Court 

When   Federal  question  presented,  §  3026,  p.  1749. 


GENERAI,  INDEX.  2249 

REVIVAL  OF  DISCHARGED  DEBT 

See  "Discharge— Revival  of  Discharged  Debt." 

REVIVING  LOST  RIGHT  OF  APPEAL,  §  2990,  p.  1735;  §  2991,  p.  1735. 

REVOCATION  OF  COMPOSITION 

See  "Composition — Setting  Aside  of." 

RIGHTFUL  OWNER 

Trustee  ordered  to  Surrender  to,  §  1872,  p.  1163. 

RIGHTS  OF  ACTION 
On   Contracts 

Pass  to  trustee,  §  1019,  p.  568. 

Personal  Services  Involving  Trust  and  Confidence,  contracts  for  do  not 
Pciss,  §  1021,  p.  570. 
For  Injury  to  Property 

Pass  to  trustee,  §  1019,  p.  568. 

Tort  for  Injury  to  Person  does  not  pass,  §  1020,  p.  569. 

RIGHT  OF  CONTRIBUTION 

Existence  of,  though  no  Firm  Debts  or  Assets,  exist  is  sufficient  to  confer 
jurisdiction  to  adjudge  partnership  bankrupt,  §  58,  p.  65. 

SALE 

By   Assignee,    where .  assignment    subsequently    superseded    by   bankruptcy, 

§    1613,    p.    980. 
For  Cash  or  on  Credit,  not  a  preference,  §   1316,  p.  773. 
By  Insolvent  Corporations,  §   1734,  p.   1067  n. 
Of  Life  Insurance  Policj^   §   1011,   p.   562. 
Pledgee's  Sale  not  Restrained,  unless  Fraud  or   Oppression   exists,   §  1913, 

p.    1192. 
As    Provided   for   by   the    First    English    Bankruptcy   Act,   34    Henry   VIII, 

Introd.   (g),  p.  6. 
Restraining  sale  under  Levy,  §   1902,  p.   1189;  §  1903,  p.  1190. 
See  "Sales  in  Bankruptcy." 

Trustee   bound   by   bankrupt's,    §    1145,   p.    676. 
Bankrupt's  Contracts  of  Purchase  or,  §   1147,  p.   677. 
Setting  Apart  or  Delivery  Sufficient  to  pass  title,  §  1146,  p.  676. 
Trustee  may  urge  facts  do  not  constitute,  §   1206,  p.   698. 

SALES  TO  BANKRUPT  WHEN  "GROSSLY  INSOLVENT" 

Reclaiming  of  the  goods  sold,  §  1879,  p.  1165. 

SALES   IN   BANKRUPTCY 

Bankrupt  may  be  bidder,  §  1955,  p.  1218. 

Before    adjudication   judge    alone    to    order    sale,    unless    unable    to    Act,    § 

1946,  p.   1214. 
Before   Adjudication   referee   may   order,   in   Judge's   Absence   or   Disability, 

§  534,  p.   331. 
Bids   both   in    Bulk   and   parcels,   with    Acceptance   of  greater   Aggregate,   § 

1936,    p.    1209. 
Bid  of  Less  than  Seventy-five  per  cent,   may  be  accepted,   §   1956,  p.   1219. 
"Caveat  Emptor,"  §  1959,  p.  1220. 
Cash,  whether   Sale   to  be  for,   §    1935,  p.    1209. 


2250  GENERAL  INDEX. 

SALES  IN  BANKRUPTCY— Continued. 

Discretion   of   Court   greater   than   in   other   sales,   §   1951,   p.    121G. 
Discretion  in  approving  or  setting  aside  sale,  not  revised,  except  for  abuse, 

§    1960,    p.    1231. 
Equity    Rules    Followed   where    Act,    Forms    and    Orders    silent,    §    1932,    p. 

1208. 
Formal  Approval  not  always   essential   to   confirmation,   §   1958,  p.   1220. 
"Free  from  Liens" 

Consent    of    Lienholder's   Attorney    to   appearance,    §    1980,    p.    1229   n. 
Commissions   of    Referee    and   Trustee    on,    §    2105,   p.    1300;    §    2112,   p. 

1302. 
Costs  and  Expenses  taxable,  §  1995,  p.  1234. 
Costs   and    Expenses   first   deducted   and   liens   paid    out    of   remainder, 

§   1992,  p.   1233. 
Each  Fund  to  bear  its  own  expenses  and  costs,  §   1990,  p.   1233. 
Expenses    of    Preservation    and    Sale    paid    out    of    particular    fund    in- 
volved,   §    1989,   p.    1232. 
Failure  to  Object  to  Sale  without  Separation  waives  lienholder's  rights 

to  proceeds,  where  lien  only  on  part,  §  1987,  p.  1232. 
Free  from  Some  liens,  subject  to  others,  §  1969,  p.   1225. 
If    Foreclosure    necessary.    Parties    relegated    to    State    Court,    §    1972, 

p.   1227. 
Form   for   notice,   none   established,   §    1981,   p.    1229. 
General  Costs  of  Administration  not  chargeable,  §   1993,  p.   1233. 
How   Lienholder   to   Set  up   Lien,   §   1985^  p.   1230. 
Inchoate    Dower    Outstanding,    §    1973,    p.    1227. 
Jurisdiction,    §    1965,   p.    1223;    §    1975,   p.    1228. 

Lienholder   as   Purchaser    may  Apply   Lien   on   Price,   except  as   to   su- 
perior  Liens,   §   1997,   p.   1236. 
Lienholder's    Consent   not   necessary,    §    1966,   p.    1225. 
Lienholder  who  desires  to  bid  Objecting,  no  sale  ordered  until   Valid- 
ity,  etc.,  determined,   §   1968,   p.   1225. 
Notice   to   Lienholders   requisite,   §   1980,   p.    1229. 

"Order  to   Show   Cause,"  approved   Form   of   Notice,   §   1982,  p.   1229. 
Proportionate  part  not  to  be  charged  against  each  lien,  §  1991,  p.  1233. 
Reasonable   prospect   of   Surplus   must   appear,   or    Lienholder's   request 

requisite,    §    1971,    p.    1226. 
Referee  may  order  sale  free  from  liens,  §  533,  p.  331;  §  1975,  p.  1228. 
Record  of  referee  to  show  Notice  and  to  whom  given,  §  1983,  p.  1230. 
Reviewable  by  petition  to  revise,  §  2937,  p.  1716. 
Taking    Additional    Evidence,    after    sale,    to    fix    proportions    of    fund, 

§    1988,   p.    1232. 
Transferring  Liens  to   Proceeds,  §   1965,  p.   1223. 
Transfer   of    Liens    to    Proceeds,    to   be   provided   for   in    order,    §    1970, 

p.   1226. 
Trustee  may  sell  "free  from  Liens,"  §  939,  p.  525. 

Trustee's   Attorney's   fees  and  expenses  benefiting   entire   fund   charge- 
able, but  not  for  services  in  litigating  liens,  §  1994,  p.  1234. 
Before  Validity  or   Priority  of   Liens   determined,   §   1967,   p.   1225. 
Wife  Consenting  to  sale  free  from  Dower,   §  1974,  p.  1227. 
For   "Good  Cause"  shown  may  be  at   Private  Sale,  §   1948,  p.   1214. 
"Gross    Inadequacy"    sufficient   to   refuse    confirmation,    §    1952,   p.    1216. 
Inherent  Power  to  refuse  Confirmation  of  or  to  Set  Aside,  even  where  not 
expressly    ordered   "subject    to    approval,"    §    1957,   p.    1219. 


GENERAL  INDEX.  2251 

SALES  IN  BANKRUPTCY— Continued. 

i\Iere  Inadequacy,  or  merely  a  Better  Offer,  insufficient  to  refuse  confir- 
mation,   §    1952,    p.    121G. 

Misconduct    of   Trustee,    §    1954,    p.    1317. 

Notice  (ten  days)  by  mail  to  all  creditors  requisite,  §  1938,  p.  1209;  §  565, 
p.  343. 

Petition  to  sell,  who  may  file;  Trustee,  Receiver,  Marshal,  Bankrupt,  § 
1941,    p.    1211. 

Perishable   Property  sold  Without   Notice,   §   1942,  p.   1212. 

"Perishability,"   meaning   of,   §   1944,   p.    1212. 

Pendency  of   Composition    suspends,   §   1941,  p.   1211   n;   §  2348,   p.   1425. 

Petition   and    Order    requisite,    §    1931,   p.    1207. 

Proceedings  in  Bankruptcy  proper,  not  "Controversies,"  §  2876,  p.  1688. 

Private  Sales  of  Real  Estate  or  Personal  property.  Advertised  and  con- 
ducted   as    court    directs,    §    1940,    p.    1210. 

Public  Auction  of  Real  estate  to  be,  also,  on  Four  Weeks  Advertisement, 
and  at   county   courthouse    or   on   premises,    §    1939,   p.    1210. 

Public  Auction,  Sales  to  be  at,  unless  expressly  authorized  at  private  sale, 
§  "l947,  p.  1214. 

Real  Question  not  about  Order  of  Sale  nor  Claim,  but  about  Lien  or  title 
itself,  is  not  a  question  in  "Proceedings  in  Bankruptcy  Proper,"  §  2877, 
p.  1689. 

Remedies  against  Purchaser,  §  1999,  p.  1236. 

Referee  may  order,  §  532,  p.  331. 

Referee  orders  sales  after  Reference,   §   1945,   p.   1214. 

Resale,  §   1961,   p.   1221. 

Reviewable  by  petition  to  review,  §  2937,  p.  1716. 

Sales  before  Adjudication,   §   534,  p.   331;   §   1943,  p.   1212. 

Sales  subject  to  Approval  and  to  be  for  Seventy-five  per  cent.,  §  1949,  p. 
1215. 

Separate  Accounts  of  each  fund  to  be  kept,  §  1986,  p.  1230. 

Stifling  of  Competition  at,  §  1954,  p.  1217. 

Special  Orders  as  to  ^Manner  of  Sale,  §  1933,  p.  1208. 

Surnmary   Power   to   compel   Purchaser   to   complete   sale,   §   1962,   p.   1221. 

Suit  b}^  third  Party  against  Purchaser,  Bankruptcy  Court  no  jurisdiction 
to    Entertain,   §   2000,   p.    1237. 

"Subject  to   Liens" 

Jurisdiction,  §  1963,  p.  1223. 

Not  mentioned  to  be   otherwise,   sale  will   be  subject   to  liens,   §   1964, 
p.  1223. 

Trustee  may  sell,   subject  to,   §  938,  p.   525. 
Trustee's  Deed  or  Bill  of  sale,  §  1998,  p.  1236.     See  "Forms." 
Trustee's  Discretion  ordinarily  of  controlling  weight  in  fixing  details,  but 

creditors,  and  even  bankrupt  may  be  heard,  §  1937,  p.  1209. 
Trustee's  Sale,  a  Judicial  Sale,  §  1950,  p.   1215. 
Unfairness  towards  Bidders  at,  §  1954,  p.  1217. 

"SALES   OF   MERCHANDISE   IN  BULK" 

Whether  bankrupt  entitled  to  exemptions  out  of  unpaid  purchase  price, 
until   creditors   paid,   §   1036,   p.   590. 

SALESMAN 

Traveling,    entitled   to   priority,    §   2170,   p.    1338. 


2252  GENERAL  INDEX. 

•'SAME  CLASS" 

Who  are  in,  §  1387,  p.  816. 

"SATISFACTORY   PROOF" 

Of  Assignment   of  claims   already  proved,   §   744,   p.   442. 
Requisite   upon   summary   orders   upon   bankrupt,   §    1842,   p.    1137. 

"SATISFYING"  EVIDENCE 

When  necessary  on  Discharge,  §  2639,  p.  1572. 

SEAL   OF  COURT 

All  process,  summons  and  subpoenas  to  be  under,  §  1537,  p.  918  n. 

SECOND  ACT   OF  BANKRUPTCY 

Preferences,  §  117,  p.  109.     See  "Acts  of  Bankruptcy — Preferences." 

"SECONDARILY    LIABLE" 

Proof  of  Claim  by  person  contingently  or  secondarily  liable,  §  611,  p.   362. 
See  "Sureties   and   Guarantors." 

SECONDARY   LIABILITY 

Discharge  of  principal  does  not  afifect,  §  2671,  p.  1589. 

SECRET    OR   SILENT  PARTNER 

On  Discovery  brought  in,   §  70,  p.   74. 

Claim  of,  not  debt  against  partnership,  §  2247,  p.  1372. 

"SECRET  TRUST" 

Concealment  of  property  held  on,  §  2510,  p.  1510;  §  2511,  p.  1511;  §  2512,  p. 

1513;  §  2513,  p.  1514. 
Property  held  on  recoverable  by  trustee,  §   1216,  p.  719. 

SCHEDULES 

Abbreviations  to  be  avoided,  §  486,  p.  311;  §  2764,  p.  1624. 

Addresses,  None  Given  in.  Discharge  not  granted  unless  Showing  of  Due 

Diligence  made,   §  2431,  p.   1469   n. 
After  adjudication  Voluntary  and  Involuntary'  proceedings  alike,  except  as 

to  time  of   filing  schedules,   §   476,   p.   308. 
Amendment  of,  allowed,  §  492,  p.  313. 
Assets,  schedule  of,  §  477,  p.  308. 

Actual  Knovi^ledge  by  Creditor,  cures  defective  scheduling,  §  2777,  p.  1627. 

Xo  particular  form  of  notice  requisite,  §  2778,  p.   1627. 

Agent's  knowledge  imputable  to  principal,  §  2779,  p.   1627. 

Notice'  not   sufficient   unless   in    time    for    creditdr   to   avail    himself   of 
benefits   of  law,   §  2780,  p.   1627. 
Attorneys'  fees  out  of  estate  for  preparing,  §  2082,^  p.  1288. . 

Bankrupt  Failing  to  File 

Duty   of   Referee   to  cause;  Schedules   to  be  prepared   where    Bankrupt 

Derelict,   §   512,   p.   322. 
Petitioning  Creditors  or  Referee  to  prepare,  when,  §  478,  p.  309. 
Ditto  Marks  to  be  avoided,  §  486,  p.  311;  §  2765,  p.  1624. 
Duty  of  bankrupt  to  file,  §  477,  p.   308. 

Duty  of  referee  to  examine,  and  require  amendment  of,  §  479,  p.  309;  §  508, 
p.  321. 


GENERAL  INDEX.  2253 

SCHEDULES— Continued. 

"Due  Scheduling,"  what  constitutes 
Address  unknown,  §  2774,  p.  1626. 
All  Addresses  unknown,  §  2776,  p.   1627. 
Abbreviations,  §  486,  p.  311;  §  2764,  p.  1624. 
Where   Claim  Assigned,  and  No   Notice   of  Assignment  given,  §   2768, 

p.  1625. 
Debts  intentionally  scheduled  in  name  of  original  payee,  when  held  by 

third   person,   §   2767,   p.    1625. 
Dependent  on   facts   of  particular   case,   §  2762,  p.   1623. 
Ditto    Marks,   §   486,   p.   311;    §   2765,   p.    1624. 
Idem  Sonans,  §  2772,  p.  1626. 
Initials,   §  2763,  p.   1623. 
'     Innocent   Mistake,   §  2773,  p.   1626. 

Partnership  debts  in  individual  bankruptcy  of  partner,  §  2766,  p.  1624. 
Reasonable  Diligence  in  ascertaining  correct  address,  §  2775,  p.  1626. 
Stockholder's   liability,   §   2769,   p.   1625. 
Street  number,  §  2770,  p.  1G26. 
As  Evidence,  §  494,  p.  313  n;  §   1747,  p.  1071;   §  2323,  p.  1412. 
As  Evidence,  not  to  be  used  before  grand  Jury,  §  2323,  p.  1412. 
Exempt  Property  to  be  Scheduled  among  Assets  as  well  as  under  Claim, 

§   490,   p.   312. 
Exemption  Claim,  schedule  of,  §  477,  p.  308;   §  1050,  p.  603;   §   1051,  p.  603; 

§  1049,  p.  603;  §  1052,  p.  603. 
Filed  with  petition  in  Voluntary   cases,  §  481,  p.  309;   §  190,  p.   157. 
Filed  Within  Ten  Days  after  Adjudication,  in  Involuntary  cases,  §  482,  p. 

309;  §  190,  p.  157. 
Importance  of,  in  bankruptcy,   §  483,  p.  309. 
Liabilities,   schedule  of,   §   477,   p.   308. 

Names  and  Addresses  of  Creditors  to  be  given,  §  489,  p.  312. 
Notation  to  be  made  against  each  item,  §  485,  p.  311. 
Officer  of  Corporation  to  prepare,   §  480,  p.  309. 
Omitting  property  from,  when  "False  Oath,"   §  2541,  p.   1528. 
Omitting  creditors   from,   when   "False   Oath,"   §  2542,   p.   1531. 
Omitted  Creditors  added  by  amendment,  §  493,  p.  313. 
Omitted  Creditors  not  to  be  added  by  amendment  after  discharge,   §  2722, 

p.   1628. 
Omitted  Creditors  not  to  be  added  after  expiration  of  year  for  filing  claims, 

§  494,  p.  313. 
Requirements  of,  in  general,  §  484,  p.  310. 

See  "Schedules— Due  Scheduling,  What  Constitutes." 

Scheduling  does  not  Revive  Debts  barred  by  Statute  of  limitation,  §  787, 
p.  462. 

Scheduling  by  bankrupt  not  Essential  to  passing  of  title,  §  1113,  p.  635. 
Signature  to,   §   497,   p.   311. 
Verification  of,  §  497,  p.  311;  §  488,  p.  312. 

SCHEME   OF  COMPOSITION 

Candidate  for  trustee  interested  in,  incompetent,  §  891,  p.  509. 

SCOPE  OF  BANKRUPTCY  LAW 

See   "Objects   of  Bankruptcy   Law." 
See  "Nature  of   Bankruptcy   Law." 


2254  GENERAL  INDEX. 

SECTIONS  OF  BANKRUPTCY  ACT  REFERRED  TO 

Sec  "Bankruptcy  Act-Sections  Construed  or   Referred  tc." 

SECURED  CLAIMS 
Allowability  of 

Accommodation   notes   of   third   parties   given   as    collateral   not   to   be 

deducted,  §  752.  p.   4-16. 
Determination  of  value  of  securities,  §   Toy,  p.  450. 
Creditor  entitled  to  pursue  method  of  determining  value  of  securities 

stipulated  in  contract,  §  760,  p.  451;  §  1913,  p.  1192. 
Unless  oppressively  or  unfairly  exerdsed,  §  761,  p.  453;  §  1913,  p.  1192. 
Which  of  remaining  four  methods  of  determining  value  of  securities, 

left  to  court's  discretion,  §  762,  p.  454. 
Preliminary   determination  of  value  of  securities   for  voting  purposes, 

§  763,  p.  434. 
No  judgment  in  bankruptcy  proceedings   against   claimant,  for  excess 

of  security,  §  764,  p.  454. 
Withdrawing   claims    tiled   as    unsecured   and   tiling   as    secured,    §    765, 

p.  454. 
Proof  of  secured  debt  as  unsecured,  when  waiver  and  when  not,  §  766, 

p.  *55.  ^ 

Security  surrendered,  claim  allowed  without  deduction,  §  767,  p.  455. 
Meaning  of  "Secured"  claims.  §  74S.  p.  445. 
Secured  distinguished  from  Pro\-able  claim.  §  749,  p.  446. 
Distinguished  from  "preferred"  claims,  §  750,  p.  446. 
Allowable  only  after  Deduction  of  securities.  §  751,  p.  446. 
See  "Deduction  of  Securities." 
Notes  of  third  parties  endorsed  by  bankrupt  as  collateral  deducted,  § 

752,  p.  446. 
No  double  proof  on  original  proof  and  on  endorsement  of  collateral, 

§    733,   p.    44T. 
Orders  on  Third  parties  by  bankrupt  Deducted,  §  754.  p.  447. 
Securities  on  exempt  property-  deducted,  §  755,  p.  447. 
WTiether  holder  of  Waiver  of  Exemption  note,  a  "secured"   creditor, 

§  755,  p.  447  n. 
No   deduction  where  securities  not  on  bankrupt's  property,  |   756»  p. 

445. 
Creditor's  secret  renewal  of  securities  in  own  name.  witJtout  bankrupt's 

knowledge,  security  still  "bankrupt's  property."  §  75'6v  p-  449  rr. 
Xo  deduction  for  amounts  paid  by  surety,  §  757,  p.  450'. 
Xo   deduction  for  property  of  principal  held  as   security,  by  creditor 

■where  surety  bankrupt.  §  75S,  p^  450. 

Deposit  in  Composition  coses,  whether  to*  CoTrer  Deficit  o>m  Unifiled  secured 

claims,  §  2367.  p.  1434. 
Xote  containing  Waiver  of  Exemptions,  whether  is  a  "■secured  ■-Tafm;'^  § 

1034.  p.  5S7  n. 
Proof  of.  §  606s  p.  360l 

Remedies  cf  Creditors  holding.  Unimpaired  d-uring  pendency  of  pertttioQ, 

I  H29>  p.  643. 
Year's  Limitation  for  F fling  applies  tov  as  to  deficit,  |  T2S,  p.  43T. 


GENERAL  IXDEX,  2255 

SECURED  CREDITORS 

Selling  of  Securities'  by,  not  enjoined,  §  1913,  p.  1192. 

Vote  only  for  Deficit,  §  576,  p.  349. 

"Adverse  Claimants,"  -nhen,  §  1679,  p.   1034. 

Competent  as  Petitioning  Creditors  to  extent  of  Deficit,  §  220,  p.  175. 

In  Composition  cases  participate  to  amount  of  Deficit,  §  2395,  p.  144S. 

SECURED  DEBT 

Payment  of,  therebj-  Releasing  Securities   of  Equal  Value,  no   Preference, 
§  1325,  p.  776. 

SECURITIES 

Exchange  of,  of  equal  value,  not  preference,  §  1320,  p.  774. 

But  if   Xew   Securities   exceed  value   of  old,   preference   arises,    §    1321. 

p.  775. 
If  securities  remain  same  but  indebtedness  be  increased  by  antecedent 
debts,  preference  as  to  antecedent  indebtedness  arises,  §  1322,  p.  77fi. 
If  securities  and  debt  both  increase,  but  increase  of  debt  be  for  present 

consideration,  no  preference  arises.  §  1323,  p.  776. 
Withdrawal    of   old    security   and    substitution    of    new     must    be    con- 
temporaneous, §  1324.  p.  776. 
Exhaustion  of 

Tax  not  such  secured  claim  as  requires,  §  2163,  p.  1335. 
Included  in   term  "Transfer,"   §   1332,  p.   780. 
Payment  of  Secured  debt,  thereby  releasing  Securities   of  equal  value,  no 

preference,   §    1325,   p.   776. 
See.  also,  "Secured  Creditor." 

SECURITY    FOR   COSTS 
By  Receiver.  §  396.  p.  25S. 
In  U.   S.  District  court,  §  1756,  p.  1073. 
In    State    court,    §    1760,   p.    1074. 

SEDUCTION 

Judgment  for,  when  Discharged,  §  2754,  p.  1620. 
Liabilities  for,  when  not  Discharged,  §  2760,  p.  1621. 

SEIZURE 

See   "Provisional  Seizure  of  Property'." 

SEIZURE    OF    ASSETS 

Prov'ded   for   in    First   English    Bankruptcy   Act,    34    Henry   VIII,    Introd. 
(g).   p.   6. 

SELECTING  EXEMPTIONS 

Bankrupt  maj-  select  in  kind  regardless  of  impairing  remainder,  §  1044,  p. 

594. 
See  "Exemptions — Claiming  of." 

SELLING  FREE  FROM  LIENS 

See  "Sales  in  Bankruptcj- — Free  from  Liens." 

SEPARATE   FINDINGS   OF  FACT  AND   LAW 

Vacating  of  Discharge,  where  requested  but  not  made,  §  2S18,  p.  1649. 


2256  GEXERAL  INDEX. 

SERVANTS 

See  "Wages — Of  Workmen,  Clerks  and  Servants." 

SERVICE 

Of  Process 

In   General,   §   1537,  p.   918. 

On  Nonresident,  in  tj.  S.   District  Court,  §   1755,  p.   1073. 
Of  Subpoena 

In   General,  §   1537,  p.   918. 

Whether  proceedings  have  been  instituted  "Within  Four  ]^Ionths"  period 

■   is  not  determined  by,  §  188,  p.  154. 
Of  Summons 

In   General,   §   1537,   p.  918. 

Nonresident  Creditor  Exempt  from,  while  in  Attendance  on  Re-Exam- 
ination of  his  claim,  §  846,  p.  488  n;  §  1570,  p.  942  n. 

SET-OFF  AND  COUNTERCLAIM 

Appealability  of  rejection  or  allowance  of,  §  2910,  p.  1705. 

Burden  of  Proof  of  Propriety  of,  on  debtor,  §  1183,  p.  693. 

Claim  not  proved  within  year,  nevertheless  available  as,  §  1178,  p.  690. 

Contingently    Owing,   set-ofif   and   counterclaim   may   be,   §   1174,   p.    683. 

Need  not  be  Due  if  Owing,  §  1173,  p.  688. 

Excess  of,  presentable  as  Claim  against  estate,  §  1187,  p.   694. 

Which  Governs,  law  of  State,  United  States,  or  of  Forum,  §  1171,  p.  688. 

General  Deposits  in  Bank  available  to  bank  as,  if  not  applied  by  bankrupt 

on    bank's    claim,    §    1180,    p.    691. 
Indirect   Preference  bi'  Creditor  Selling  Claim   and   Purchaser  using  it   as 

offset  to  purchase  price  of  goods  bought  from  bankrupt,  §  1181,  p.  692. 
No  Judgment  against  trustee   for  Excess   of,   §   1187,   p.    694. 
No     Judgment    in    bankruptcy     proceedings    against    Offsetting     claimant 

where  estate's  claim  exceeds  claimants,  §  1188,  p.  694. 
]\Iutual  Demands  must  have  existed  before  bankruptcy,  §   1172,  p.   688. 
Mutual  debts  to  be  between  Same  Parties,  in  Same  Capacity,  §  1176,  p.  689. 
Must  be  Provable  Debt,  §  1177,  p.  689. 
Purchased  with  Knowledge  of  Insolvency  or  to  use  as  offset,  not  allowable, 

§  1182,  p.  692. 
Right   of.    Unimpaired  by  bankruptcj^,   §   1170,  p.   687. 
Right  of  under  §  68  distinguished  from  preferred  creditor's  right  to  set  oflf 

new  credit,  §  1417,  p.  840. 
Separate  Debt  not  to  be  offset  against  joint  debt,  §  1175,  p.  689. 
Special  Deposit  by  Tenant  with  landlord,  how  to  be  applied  on    subsequent 

bankruptcy,  §  1186,  p.   694  n. 
Stockholding  Creditor  may  not  offset  against  Unpaid  Subscriptions,  §  1186, 

p.   693. 
Supervening  Insolvency  Destroying  right  of,  §  1184,  p.  693. 
Supervening   Insolvency  Creating  right  of,  §  1186,  p.  694. 
Trustee  entitled  to  all  set-offs  and  counterclaims  of  bankrupt,  §  1203,  p.  698. 
Voidable  Preference  not  available  as,  §  1179,  p.  690. 

"SET-OFF  OF  NEW  CREDIT  BY  PREFERRED  CREDITOR" 
Basis   of  Right,  §   1418,  p.   840. 

Distinct  Transactions  with  same  creditor  within  four   months,  not  severed, 
§  1421,  p.  842. 


gi;neraIv  index.  225? 

"SET-OFF  OF  NEW  CREDIT  BY  PREFERRED  CREDITOR"— Continued 

Entire  Transaction  Occurring  within  Four  months  and  after  insolvencj-,  no 
Preference,   §   1420,   p.   842. 

"Good   Faith"   in    acquiring   offset   requisite,    §    1424,   p.    845. 

Goods  Purchased  by  Subsequent  credit  must  go  to  enrich  estate,  §  1423,. 
p.   844. 

Net  Result,  as  to  Enrichment  of  Estate  after  insolvency,  test,  §  1419,  p.  841. 

Payments  upon  Purchases  on  Subsequent  Credit  are  not  themselves  pref- 
erences, §  1425,  p.  845. 

Right  of,   t;   1416,  p.   839. 

Right  of  distinguished  from  Ofifset  under  §  68,  §  1417,  p.  840. 

Subsequent  Credit,  to  extent  of  any  Security  given,  not  to  be  Ofifset,  § 
1422,  p.   844. 

SETTING   APART   OF   EXEMPTIONS 

See   "Exemptions,   Setting  Apart  of." 

SETTING    ASIDE    FRAUDULENT    OR    PREFERENTIAL    TRANSFERS 
IN  STATE  COURT 

Allowability  of  Claims  of  Transferee,  on,  §  775,  p.  459. 

Dividing  fund  on,  solely  among  "subsequent"   creditors,   §  2221,  p.   1362. 

SETTLEMENT  BETWEEN  BANKRUPT  AND  DEBTORS 

In  other  than  in  statutory  manner  of  composition,  §  2357,  p.  1430. 

SEVERAL  CLAIMS  BY   SAME  CREDITOR 

Xeed  not  be  in  one  proof,  §  615,  p.  365. 

Better  practice  to  include  all  in  one  proof,  §  615,  p.  365. 

SEVERING    DISTINCT   TRANSACTIONS 

Efifect  of,  in  cases  of  preferences,  §  1421,  p.  842. 

SHARES   OF   STOCK 

Claims  for  conversion  of,  by  bankrupt  broker,  §  804,  p.  470  n. 

SHERIFF 

"Adverse  Claimant"  until  Adjudication,  §  1662,  p.  1030;  §   1828,  p.   1124. 
"Adverse  Claimant"  where  he  has  already  paid  over  proceeds  to  execution 

creditor,  §  1477,  p.  878. 
Costs   and    Expenses   of,    in    "Preservation   of   Estate"    subsequent   to    filing 

petition.   §   2014,   p.   1250. 

Where  Lien  by  Legal  Proceedings  Nullified  by  Bankruptcy 

"Adverse  Claimant,"  where  he  has  already  paid  over  proceeds  to  execu- 
tion  creditor,   §   1477,  p.   878. 

Liable  if  pays  over  proceeds  of,  after  bankruptcy  petition  liled,  §  1484, 
p.  883. 

Need  not  be  kept  in  possession,  §   14SS,   p.   885. 

No  right  to  retain  Creditors'  Costs  nor  to  retain  Property  until  costs 
paid,   §    1486,   p.    885. 

Order  may  not  require  surrender  of  more  than  is  in  officer's  hands,  § 
1830,  p.  1125. 

Paying  over  Proceeds  of  Lien  by  Legal  Proceedings  before  filing  of 
bankruptcy  petition,  protected,   §   1483,  p.   883. 

2  Rem  B-67 


2258  GENERAI,  INDEX. 

SHERIFF— Continued. 

Replevin   from,   §   1475,   p.   878. 

Suit  against  for  Money  Had  and  Received,  §  147G,  p.  878. 
Summary   Order   upon,   to   Surrender   assets,   §   1474,   p.    877;   §   1829,   p. 
1125. 
Procedure  on  obtaining  surrender  of  assets  from,  §  1860,  p.  1158. 

If  application   be   to  State   court,  procedure  follows  that  of   such  court, 

§  1861,  p.  1158. 
If  application  be  to  Bankruptcy  court,  procedure  follows  ordinary  rules 
as  to  Summary  Orders  on  Bankrupts  and  Others,  §  1862,  p.  1158. 
Proceeds    of    Execution    sale    in    hands    of,    where    levy    made    before    four 
months,   whether   subject   to   summary   order,   §    1816,   p.   1114;   §   1827,   p. 
1122  n. 
Referee  no  jurisdiction   to   enjoin,   §   2701,   p.    1601. 

SHIP  BUILDING  CORPORATIONS 

See  "Manufacturing  Corporations." 

SIGNATURE 

To  Involuntary  Petition  requisite,  §  276,  p.  202. 

To  Proof  of  Claim,  requisite,  §  614,  p.  364. 

To  Specifications  in  Opposition  to  Discharge  requisite,  §  2593,  p.  1552. 

To  Schedules  requisite,  §  487,  p.  311. 

To   Voluntary  Petition   requisite,   §   194,   p.   159. 

SIMULTANEOUS   APPEAL  AND  PETITION   FOR   REVIEW,   §  2918,  p. 

1709. 

"SIX  MONTHS  OR  GREATER  PORTION  THEREOF" 

Defined,   §    34,   p.    54. 

SOLICITATION 

By  Bankrupt,  to  File  Involuntary  Petition,  not  improper,  §  216,  p.  174. 

By  Bankrupt,  not  to  file  Involuntary  Petition  not  improper,  §  216,  p.  175. 

Of  Claims,  not   Illegal,   §   885,  p.   504. 

By  Creditors,  not  to  Resist  Petition,  not  improper,  §  216,  p.  174. 

Of  Ofifice  of.  Trustee,  No  Disqualification  of  candidate,  §  885,  p.  504. 

SOLVENCY 

As   Defense  to  Involuntary   Petition 

Complete    Defense    to    Fraudulent   Transfer,    Removal,    etc.,    as    act    of 
bankruptcy,   §   116,  p.   109;   §   177,  p.   148. 
.      Date  of  Solvency,  date  of  Petition,  §  176,  p.   148. 

No  Defense  to  Assignment  as  act  of  bankruptcy,  §   147,  p.   128. 

No  Defense  to  "Written  Admission"  as  act  of  bankruptcy,  §  170,  p.  143. 

SPECIAL  MASTER 

Abuse  of  Power  of  Appointment  of,  §  24,  p.  39  n. 

Compensation  of,  on  discharge,   §  2660,  p.   1578. 

Findings  of  Fact  by,  not  reversed  except  for  Clear  Error,  §  2634,  p.  1569. 

Hearings  before,  on  Discharge,  §  2628,  p.  1567. 

Whether  to  exclude  improper  evidence,   §  2629,  p.   1567. 

Motions  and  demurrers,  §  2627,  p.  1567. 

Whose  duty  to  bring  on  hearing  before,  §  2628,  p.  1567  n. 


GENERAL  INDEX.  2259 

SPECIAL  MASTER— Continued. 

Reserving  decision  as  to  admissibility  of  evidence,  §  2629,  p.  1568  n. 
Findings  of  fact  as  well  as  evidence,  §  2630,  p.  1569. 
Conclusions  of  law,  §  2631,  p.  1569. 
Exceptions  to  report  and  findings  of,  §  2632,  p.  1569. 
Court  presumed  to  have   investigated  case   on  merits,   on   master's  re- 
port, §  2633,  p.  1569. 
Judge  may  refer  issues  to,  §  2625,  p.  1566. 
Opposition   to   Discharge  may  be   referred   to,   see   "Discharge — Opposition 

to." 
Petition  for  Adjudication  may  be  referred  to,  see  "Adjudication  of   Bank- 
ruptcy." 
Report  and  Findings  of,  §  2632,  p.  1569. 
Revocation  of  Discharge  may  be  referred  to,  §  2S21,  p.  1649. 

SPECIAL  STATUTES 

Peculiar  rights  or  remedies  given  to  creditors  by 

Simple  Contract  creditors  in  some  States  Competent  to  set  aside  fraud- 
ulent Conveyance,  §  1265,  p.  745  n. 

Intermediate  Creditors'  rights  where  chattel  mortgage  withheld  from 
record,  §  1265,  p.  745  n. 

Rights  as  between  subsequent  and  general  creditors  where  mortgage, 
voidable  only  as  to  subsequent  creditors,  is  set  aside,  §  1265,  p.  745  n. 

All  mortgages  within  three  months  of  failure  by  State  Statute  pre- 
sumptively fraudulent  unless  rebutted  by  proof  of  present  real  con- 
sideration, §  1265,  p.  745  n. 

Trustee  succeeds  to,  §  1265,  p.  745. 

Statutory  provision  that  property  consigned  to  factor  or  Agent  who 
does  not  designate  his  capacity,  goes  to  all  creditors  on  Insolvency, 
§  1265,  p.  745  n. 

Conditional  Sales  wholly  void,  §  1265,  p.  745  n. 

Spendthrift  Trusts,  §  1265,  p.  745  n. 

Vitiation  of  Execution  levy  by  using  it  as  mere  security,  §  1265,  p. 
746  n. 

Preferentral  Transfer,  §   1265,  p.   746  n. 

Void  as  to  creditors,  meaning  in  one  State  "Judgment"  creditors,  not 
necessarily  "Levying"  creditors,  §  1265,  p.  746  n. 

No  evasion  permitted  of  Statute  requiring  recording  within  six  months 
of  execution,  by  keeping  renewals  off  record,  §  1265,  p.  746  n. 

"Warehouse"  receipts — insufficient  "warehousing"  where  merely  space 
in  bankrupt's  own  warehouse  rented,  §   1265,  p.  746  n. 

SPECIFICATIONS  IN  OPPOSITION  TO  COMPOSITION 

Form  and  allegations  of,  similar  to  discharge,  §  2380,  p.  1440. 
Ten  days  lime  after  appearance,  for  filing,  §  2379,  p.  1440. 

SPECIFICATIONS 

Of  opposition  to  discharge,  see  "Discharge — Opposition  to — Specifications." 

"SPENDTHRIFT  TRUST" 

Beneficial   Interest  of  bankrupt  in,  whether  it  passes  to   trustee,  §  975,  p. 

546. 
Trustee  of,  is  an  "Adverse  Claimant,"  §  1672,  p.  1032. 


2260  GENERAI,  INDEX. 

SPLITTING  CASE 

None  on  Appeal,  §  2903,  p.   1703. 

SPLITTING   CLAIM 

To  Obtain  Jurisdictional  Xumber  improper,  §  204,  p.  167. 
Single   claim   not   to   be   split,   §   616,   p.   365. 

STATE  BANKRUPTCY  AND  STATE  INSOLVENCY  LAWS  AND  PRO- 
CEEDINGS 

Basis  of  Supersedence  of,  §  1626,  p.  990. 

Bankruptcy  and  Insolvency  laws,  and  General  Assignment  laws,  dis- 
tinguished, §  1632,  p.  1004. 

Ipso  Facto  Suspended,  §  1629,  p.  996. 

Simply  held  in   abeyance,   §   1631,   p.   1003. 

Superseded  by  Bankruptcy  Act,  §   1625,  p.  988. 

Suspended  during  existence  of  Federal  bankruptcy  Act,  as  to  all  classes 
subjected  to  latter,  §  1628,  p.  993. 

Xot  Suspended  nor  Inoperative  as  to  classes  not  covered  by  Federal  Act, 
§  1630,  p    998. 

STATE  COURTS 

Administei"  bankruptcy  law,  §  1597,  p.  964. 

Trustee,   intervening  in  pending  suit,   not   coniined   to   rights   accorded 
by  State  law,  §  1597,  p.   964. 

Congress  May  Constitutionally  Impose  Enforcement  of  Bankruptcy  Laws 
on,  §  14,  p.  29. 

Custody  of.  Preserved  in  Part,  and  in  Part  Superseded,  §  1587,  p.  962. 

Governed  by  State  law  and  Judicial  Policy  in  granting  or  refusing  substitu- 
tion or  intervening  of  trustee,  §  1648,  p.  1013. 

Jurisdiction  of,  in  bankruptcy  matters,  §  1687,  p.   1038. 

Jurisdiction  of,  see  "Conflict  of  Jurisdiction." 

Obtaining  Leave  from  Bankruptcy  court,  not  prerequisite  to  suing  in,  § 
1722,  p.    1061. 

Restraining  of  proceedings  in.  Until  Trustee  Elected  and  appropriate  ac- 
tion can  be  taken,  §  1907,  p.  1191. 

Restraining  of  proceedings  in,  where  property  in  custody  of  bankruptcy 
court  sought  to  be  seized,  §  908,  p.  1191. 

Trustee's  Intervention  in,  does  not  Oust  State  court,  §  1596,  p.  964;  §  1648, 
p.   1014. 

Trustee  may  sue  in,  §  1721,  p.   1061. 

STATE  LAW 

"Arming  with  Process,"  where  not  requisite  by.  not  requisite  in  bankruptcy, 
§  1210,  p.  708. 

Whether  an  "Assignment  Law"  or  "Bankruptcy  Law,"  or  "Insolvency  Law" 
determined  by,  §  1632,  p.  1007;  §  1633,  p.  1007. 

As  Construed  by  Highest  State  Tribunal,  governs  exemptions,  §  1042,  p. 
593. 

"Creditor"  same  as  in,  so  far  as  concerns  necessity  of  "arming  with  proc- 
ess, §  1209,  p.  706. 

Of   Domicile   governs   as   to   Exemptions,   §   1038,   p.   591. 

Determines  effectiveness  of  transaction  to  accomplish  transfer  of  title,  § 
1139,  p.  666;  §  1275,  p.  754. 


GENERAL  INDEX.  2261 

STATE  LAW— Continued. 

Governing  exemptions  and  priorities  not  lack  of  "uniformity,"  §  6,  p.  22. 

Judicial  Notice  of,  §  781,  p.  461. 

Kind  and  Amount  of  Property  Exempt    governed  by,  §  1040,  p.  5&2. 

Marshaling  of  Liens    governed  by,  §  1896,  p.  1184. 

Nature  of  lien,  Time  it  takes  efifect,  Abandonment,  etc.,   Determined  b}*,  § 
1459,  p.  865. 

Nature  of  Title  passing    determined  by,   §   1275,  p.   754. 

Whether    Particular   Propertj'^   is    of   a    Kind   that   Passes   to   trustee,   deter- 
mined by,  §  95;],  p.  535. 

Person   Entitled   to   Exemptions,   governed   by,    §    1040,   p.   592. 

Priorities  under,  see  "Priorities  under  State  and  Federal  Law." 

Time   Title   Passes,   determined   by,   §   1139,   p.   666. 

Time    that   Agreements   for   Liens   take   efifect   as    Liens,   determined   bj^    § 
1373,  p.  802. 

Time  that  the  Taking  of  Possession  or  Recording,  takes  efifect  as  "Trans- 
fer," determined  by,  §  1373,  p.  802. 

Trustee  entitled  to  all  objections  bankrupt  might  urge,  but  not  limited  to 
.  such,    §    782,    p.    461. 

Trustee's   Application   to   Intervene  in   State   Court   governed   by,   §   1648,   p. 
1013. 

Trustee's    Title,    whether    analogous    to    Receiver's    or   Assignee's    under,    § 
1211,  p.  709. 

Validity  of  Claims  and  of  Title  to  Property  Determined  by,  §  780,  p.  461; 
§   1140,  p.  667. 

As  Interpreted  by  Highest  Tribunal,  §  780,  p.  461;  §   1140,  p.  669. 

Whether  a  "Debt,"  "Claim"  or  "Demand"  dependent  on,  §  631,  p.  375. 

Whether  "license,"  "penalty"  or  "Tax"  determined  by,  §  2154,  p.  1330. 

Whether  Lien  Begins  at  Date  of  Taking  Possession  of  After-acquired  prop- 
erty, or  Reverts,  determined  by,  §  1237,  p.  735. 

Liquor  License,  whether  it  passes  to  trustee,  determined  by,  §  967,  p.  541. 

STATEMENT  TO  COMMERCIAL  AGENCY 

Whether  Conclusive  Admission  of  Existence  of  Assets,  §  1852,  p.  1151  n. 

STATUS  OF  DEBTOR 

•      As  "Bankrupt"  established  by  Adjudication,   §  452,  p.   301. 

STATUS  OF  PROPERTY  AFTER  FILING  OF  PETITION 

See  "Title  of  Trustee — Status  of  Property  after  Filing  of  Petition." 

STATUTE 

Allegations  in   mere  words  of,  insufficient  pleading,   §  255,  p.   191. 

STATUTE   OF   FRAUDS 

Trustee  may  urge,  §  1194,  p.  696. 

STATUTE  OF  LIMITATIONS 

Creditor  Interposing,  §  786,  p.  462. 

Defense  to  Allowance  of  Claim,  §  784,  p.  462. 

Revocat'on    of    Discharge,    to   be    applied   for    within    year    after    discharge 

granted,  §  2824,  p.  1650. 
Scheduling  does  not  Revive  outlawed  debts,  §  787,  p.  462. 
What  statute  of  limitations  governs,  §  788,  p.  463. 
Trustee's  Right  and  Duty  to  interpose,  §  785,  p.  462;  §  1193,  p.  696. 


2262  GENERAL  INDEX. 

STATUTORY  CONSTRUCTION 

Amendment   of    1903    simply   declaratory   of   existing   law   in    certain   parts, 

§  2756,  p.  1620;   §  2758,  p.   1621. 
Bankrupt  Act  excludes  State  law,  where  both  give  priority  to  same  class, 

§   2203,  p.    1354. 
Former  Decisons  of  Courts  presumed  in  view,  §  2787,  p.  1631. 
Liberal  toward   Bankrupt  as  to   Discharge,  §   2467,  p.   1490. 
Provisions   as   to   Composition,   strictly   construed,   §   2356,   p.    1430. 
When  language  Clear  and  Unambiguous,  §  22,  p.  38. 

STATUTORY  DUTIES 

Of  referee,  see  "Referee  in  Bankruptcy,  Duties  of." 

STATUTORY  LIENS  FOR  SUPPLIES,  §  1159,  p.  683. 

STATUTORY  PREREQUISITES  FOR  CLAIMING  EXEMPTIONS,  §  1041, 
p.  593  n;  §  1047,  p.  595  n;  §  1048,  p.  600. 

STATUTORY  REMEDIES 

Avoiding  of  Fraudulent  or  Preferential  Transfers  under  State  Law,  whether 
Available  to  trustee  in  bankruptcy,  §  1269,  p.  748. 

Maintaining  Statutory  suits,  to  perfect  Special  rights  for  benefit  of  all,  § 
1267,  p.  747. 

Priorities  given  by  State  law,  under  Assignments  or  Receiverships,  whether 
Available   on   marshaling   liens   in   bankruptcy,   §   1898,   p.    1186. 

Priority  of  liens  under  State  statutes  as  related  to  their  marshaling  in  bank- 
ruptcy, §  1898,  p.   1186. 

Rights  given  to  creditors  by  State  Statute  where  Dependent  on  resort  to 
Special  Remedies,  §  1897,  p.  1186. 

Trustee   Succeeds   thereto,   when,   §   1265,   p.   745. 

STATUTORY  SUITS 

Under  State  law  to  set  aside  Preferential  or  Fraudulent  Transfers,  create 
"liens  by  legal  proceedings"  nullified  by  bankruptcy,  §  1441,  p.  851. 

STAY 

Of  Execution 

Of   Referee's    Order   on   review,   §   2860,   p.    1669. 

STAY    OF   INVOLUNTARY   PETITION 

To  Ascertain  Propriety  of  Adjudication  on  Voluntarj-,  §  303,  p.  217. 
Several  Petitions  Simultaneously  Pending,  §  295,  p.  213. 

STAY  OF  SUITS 

Where   for    Benefit    of   Estate    rather    than    of   bankrupt,    see    "Restraining 

Orders  and  Injunctions." 
To    permit    interposition     of    Discharge,    see     "Discharge — Staying     Suits 

against   Bankrupt   to    Permit    Interposition    of." 
Refusal  of 

.  Permitting  creditors  to  maintain  suit  to  fix  Liability  on   Surety,   §  048, 

p.  389;  §  1524,  p.  908;  §  1914,  p.  1193;  §  2246,  p.   1478;  §  2712,  p.   1605. 

Permitting  creditor  to  maintain  suit  to  Perfect  Priority  claim,  §  2200, 

p.   1353. 
Permitting  Legal  Action  to  Fix  Stockholder's  Liability,  §  1914,  p.  1193. 


GENERA!,  INDEX.  2263 

STAYING  DISCHARGE 

To  permit  creditor  to  perfect  rights  against  surety  or  exempt  property, 
§  2446,  p.   1478. 

STENOGRAPHER 

Compensation  of,  §  1579,  p.  945;  §  2007,  p.   1245. 
Employment  of,  §  1579,  p.  945;  §  2006,  p.  1245. 

STIFLING  OF  COMPETITION,  §  1954,  p.  1217. 

STIPULATION 

As  to  what  is  necessary  on  appeal,  §  2965,  p.  1727. 

STOCKS 

W4ien  pass  to  trustee,  §  1001,  p.  556. 

STOCKBROKERS 

Claims   by   customers   against   bankrupt   stockholders,    §    804,    p.    470. 
When   customer   of  becomes   "creditor,"   §    1313,  p.   769. 
Conversions  by,  whether  discharged,  §  2785,  p.  1629. 

STOCKBROKERAGE  CORPORATIONS 

Sfc  "Involuntary  Bankruptcy." 

"STOCK  EXCHANGE" 

Xot  Contesting  Sale  of  bankrupt's  Seat,  not  "adverse  claimant,"  §  1674,  p. 

1033;   §   1822,  p.  1120. 
Seats  in, 

Pass    to   Trustee,    when,   §    967,    p.    540. 

Subject  to  Contingency  of  Election,  yet  may  pass,  §  968,  p.   542. 
Transferable   only   by   Peculiar   and    Unusual    means,   yet   may   pass,    § 
969,  p.   542. 

STOCKHOLDER 

Bankrupt  stockholder,  who  to  be  scheduled  as  creditor  upon  double  liability, 
§  494,  p.  313  n. 

Assent  of,  whether  requisite  to  "Written  Admissions,  etc.,"  as  acts  of  bank- 
ruptcy,   §    167,    p.    141. 

STOCKHOLDER'S  DOUBLE  LIABILITY 

Who  to  be  scheduled  as  creditor  of  bankrupt  stockholder,  §   494,   p.  313  n; 

§  2769,  p.  16. 
Xot  an  Asset  of  bankrupt  corporation,  §  978,  p.  548. 

STOCKHOLDER'S  LIABILITY 

Discharge  of,  §  2742,  p.  1616. 

Legal  Action   requisite  to   Fix,  whether  injunction  granted  against,  §   1914, 

p.    1193. 
Liquidated  and  Proved,  §  709,  p.  427. 

How  Scheduled,  §  2769,  p.  1625. 

Corporate   creditors  may  be   scheduled,   §  2769,  p.   1625. 

Receiver  may  be  scheduled,  §  2769,  p.   1625. 
Jnpaid  Subscription,  trustee  to  prosecute  pending  suit  for,  §  1644,  p.  1012. 


2264  GENERAL  INDEX, 

STOPPAGE  IN  TRANSITU 

Reclaiming  Goods,  stopped  in   transitu,  §   1881,  p.   1168. 
'  Right  of,  unimpaired  by  buj^er's  bankruptcj^  §  1168,  p.  686. 

STORAGE 

For  Care  of  Exempt  property  pending  setting  off,  §  1093,  p.  617. 
Reclaiming  of  property  left  with  bankrupt  for,   §   1877,  p.   1165. 

"STRENUOUSNESS    OF    OPPOSITION" 

Element  in  fixing  Attorney's  Fees,  §  2047,  p.  1268. 

STRIKING  FROM  FILES 

Claims  presented  after  Expiration  of  Year  stricken  from  files,  §  724,  p.  437. 

STRUCTURAL  WORKS  COMPANIES 

See   "Involuntary   Bankruptc}'." 

SUBCONTRACTOR'S    CLAIM    AGAINST    HEAD    CONTRACTOR,    §    235, 

p.    183   n. 

SUBCONTRACTORS  AND  CONTRACTORS,  §  672,  p.  409;  §  1884,  p.  1176  n. 

SUBCONTRACTORS'  LIENS 

See  "Mechanics'   Liens." 

See  "Title  of  Trustee — As  Successor  to  Bankrupt's^  Title  and  Rights." 

"SUBJECT   OF  BANKRUPTCIES" 

Dealing  with  One  Part  Only  of  Subject,  §  10,  p.  26. 
Law  Established  Must  Be  on  Subject  of  Bankruptcy,  §  2,  p.  1. 
Operating  on  Others  than  Traders  not  Outside  of  Subject,  §  8,  p.  23. 
"Subject  of  Bankruptcies"  not  Necessarily  Entire  nor  Confined  to  Original 

Subject,  §  7,  p.  23;  §  30,  p.  51. 
Voluntary  Bankruptcies  not  Outside  of  Subject,  §  9,  p.  25. 
As  Affected  by  Exception  of  Wage  Earners  and  Farmers   in   Bankruptcj' 

Act,  §  30,  p.  51. 

SUBJECT   MATTER 

Limitations   as  to   Residence,  also   as   to   Occupation,   affect  Jurisdiction  of 
Subject   flatter,   §  30,  p.   51. 

SUBJECTING  OF  DIVIDENDS 

Garnishment  proceedings  stayed  until  dividend  ascertained,  §  1646,  p.  1013. 

SUBJECTING  EXEMPT  PROPERTY 
While  in  trustee's  hands 

By  Equitable  Action  in  State  Court,  §  1106,  p.  632. 
By  Permitting  Levy  of  Attachment,  or  Execution,  §  1107,  p.  633. 
By  ordering  Surrender  to  Sherifif  holding  writ,  §  1107,  p.  633. 
After  Set  Apart 

By  Levying  Direct  Execution,  §  1108,  p.  633. 

SUBLETTING 

Covenants  of  forfeiture  for,  not  violated  by  bankruptcy,  §  987,  p.  550. 
SUBMISSION   TO   EXAMINATION 
A  Duty  of  the  bankrupt,  §  462,  p.  303. 


GI^XERAL  INDEX.  2265 

SUBPCENA 

^te  "Commencement  of  Proceedings." 

Contempt   for  disobedience   of,   §   1576,   p.   944. 

Date  of  filing  petition,  not  issuance  nor  service  of  subpoena  controls,  §  188, 

p.    154. 
Delay  in  serving,  on  involuntary  petition,   §  311,  p.   220. 
Examination  of  Witness,  subpoena  for,  §  1537,  p.  918. 
See  "Service — Of  Subpoena." 
To  be  under  Seal     and  Tested  by  Clerk,   §   1537,  p.  918  n. 

SUBROGATION 

Of  Assignee  of  Claim 

Assigned  after  Bankruptcy,  §  2277,  p.   1392;   §  610,  p.  362;  §  741,  p.  441. 
"Equitable"  Subrogation 

By  agreement  with  bankrupt  or  creditor,  §  2278,  p.  1392. 

To    workmen's    priority    claims,    whether    to    compete    with    workmen's 

own  later   claims,   §  2279,  p.   1393. 
Of  interested  party,  paying  to  preserve  assets,  §  2281,  p.   1395. 
Mere  volunteers  not  entitled  to,   §  2282,  p.   1396. 

None  of  trustee  to  liens  on  exempt  property  paid  off  on  eve  of  bank- 
ruptcy, §  2283,  p.   1396. 
Of  Fraudulent  Transferee 

On  Setting  Aside  Constructively  Fraudulent  Transfer,  §  1734^4,  p.  1067. 
Lien  Preserved  for  Benefit  of  Estate,  subrogation  of  trustee  thereto,  §  1639, 
p.   1010. 

See    also,    "Liens    by    Legal    Proceedings    Nullified    by    Bankruptcy — 
Preservation    of    Lien   for    Benefit    of   Estate." 
Pay  rolls,  subrogation  of  persons  advancing  Money  to  meet,  §  2184,  p.  1344. 
Of  Retiring  Partner 

To  Firm  Debts  he  Pays,  §  2272,  p.  1390. 
Of  Surety 

Creditor's   Claim   against   maker's   estate,   surety   subrogated   to,   §   1522, 
p.   905. 
Tax  Lien,  sul^rogation  to,  §  2149,  p.  1327. 

SUBSCRIPTION 

To  Mercantile  Agency  Reports,  §  809,  p.  471. 
See  "Unpaid  Stock  Subscriptions." 

SUBSEQUENT  CREDITORS 

Rights  as  between  subsequent  and  general  creditors  where  mortgage,  void- 
able only  as  to  .subsequent  creditors,  is  set  aside,  §  1265,  p.  745  n. 
Transfers  to   Defraud,  Voidable  by   trustee,   §   1225,   p.   725. 

SUBSTITUTION. 

Of  Trustee  in  Pending  Suit,  §  1640,  p.  1011. 

Preliminary  order  of  approval  proper,  §  899,  p.  516;  §  1641,  p.  1011. 
Probability  of  success  should  appear,  §   1G42,  p.   1011. 
Only  suits  on  rights  passing  to  trustee  authorized,  |  1043,  p.  1011. 
Defendant  not  released  by  failure   of   trustee   to   assume   prosecution,   § 

1644,  p.  1011. 
Ordering  trustee  to  apply  for  leave  to  defend,   §   1645,  p.   1012. 
Not  usually  proper  except  where  property  involved,  §  1645,  p.  1012. 


2266  GENERAL  INDEX. 

SUBSTITUTION— Continued. 

Where  Suit  is  in   Personam,  §   1647,  p.   1013. 

State   court   governed  by   State   law   and  judicial   policy^  in   granting   or 

refusing  application,  §  1648,  p.  1013. 
Trustee  bound  as  any  other  litigant  on  substitution.  §   16.50,  p.  1015. 
^Manner  of  substitution,  §  1649,  p.  1015. 
Stay  of  pending  suit  to  permit  substitution,  §  1651,  p.  1015. 

"SUFFERING" 

•      Judgment,  as  preference,  §  1335,  p.  782. 

SUITS 

Proceedings  other  than  "Suits"  Stayed,  §  2694,  p.  1598. 

SUITS  "IN  PERSONAM" 

Against  Trustees  and  Receivers,  §  1814,  p.  1112. 

Against  Trustee,  Receiver  or  Marshal  not  restrained,   §  1911,  p.   1192. 

Intervening   of  trustee  in  pending,   §   1647,  p.   1013. 

SUITS 

Staying  of 

See  "Discharge — Staying  of  suits  against  bankrupt  to  permit  interposi- 
tion of."' 
See  "Restraining  Orders  and  Injunctions." 
See  "Staj^ — of  Suits." 

SUMMARY  OF  EVIDENCE 

Certified   on   Review,  §  2855,  p.   1666. 

Requisite  on  review  of  referee's  order,  §  2852,  p.  1664. 

SUMMARY  JURISDICTION 

All  Action  to  be  taken  in  bankruptcy  court,  §  1798,  p.  1098. 

Adjudication  in   Bankruptcy  "ipso  facto"   Passing  bankrupt's   property  into 

Custodia   Legis,   §   1808,  p.   1108.      • 
Adverse   claimants,   injunctions   on   are   issuable   in   bankruptcy   proceedings, 

§  365,  p.  243;  §  1654,  p.  1028. 
Over  Adverse   Claimants  in  possession  not  to  be  acquired  under  guise  of 

petition  to  Redeem,  §  1871,  p.  1163. 
"Adverse  Claimants,"  no  Summary  Jurisdiction  exists  over,  §  1652,  p.   1019. 
Over  Agents  of  bankrupt,  see  "Summary  Orders  on  Bankrupts  and  Others." 
Assignee    of    Bankrupt's    Future    Wages,    no    summary    jurisdiction    exists 

over,  §  1678,  p.  1034. 
Once   Attaching,   Complete  for  all  purposes,   §   1797,  p.   1092. 
Bailee  in  Possession,  when  subject  to,  §  1673,  p.  1033. 
Bankruptcy  court  permitting  controversies   over  property  in  its  possession 

to  be  carried  on  elsewhere,  §  1813,  p.  1111. 
Bankrupt  required  to  Execute  Assignment  to  Effect  transfer  of  Insurance 

policy.  §  19,  p.  36;  §  1009,  p.  561;  §  1115,  p.  636  n. 
Over  Bankrupts,  see  "Summary  Orders  on  Bankrupts  and  Others." 
Bankrupt's  Attorney  within,  §  2099,  p.  1298. 
Beneficial    Interest    must    exist    in    trustee,    else    no    summarj'    Jurisdiction 

exists,   §   1817,   p.   1114. 
Over    Court    Officer,    where    lien    by    legal    proceedings    nullified    by    bank- 
ruptcy, §  1472,  p.  876;  §  1474,  p.  877. 


GENERAL  INDEX,  2267 

SUMMARY   JURISDICTION— Continued. 

"Custodia    Legis"    and    "Assumption    of   Jurisdiction,"    what    constitutes,    § 

1807,  p.   1101. 
Debtors  of  bankrupt,  no  summary  jurisdiction  over,  §  1680,  p.  1034;  §  1796, 

p.  1089. 
Disbursements   already  made,   no   summary   order   on   assignee   or    receiver 

as  to,  §  1612,  p.  979;  §  1830,  p.  1125;  §  1846,  p.  1145. 
Employer  of  Bankrupt,  no  summary  jurisdiction  exists  over,  §  1679,  p.  1034; 

§   1683,   p.    1035. 
Exempt  Property,  Court  will  not  necessarily  order  Surrender  of,  §  1029,  p. 

578. 
Foreclosure  suits,  where  bankruptcy   court   already  has   custody,   §   1806,   p. 

1101. 
Landlord's  Forcible  Detainer  suits  not  maintainable,  §  1799,  p.  1098. 
Obstructive  suits  brought  after  bankruptcy  court  acquires  custody,  §  1805, 

p.  1100. 
To   Order  Trustee  to  Surrender  Possession  to  Rightful  Owner,  §  1872,  p. 

1163. 

See,  also,  "Reclamation,   Surrender  or   Redelivery." 
Persons  in  Possession,  where  property  surrendered  by  Trustee,  not  subject 

to  summary  order,   §  1803,  p.   1100. 
Over    Persons    Not   Adverse   Claimants,    see    "Summary    Orders    on    Bank- 
rupts and  Others." 
Possession  of  Res,  Test  of,  §  1796,  p.  1088. 

Proceeds  of  lien  by  legal  proceedings  already  Paid  over  to  Execution  cred- 
itor no  jurisdiction  exists  to  compel  surrender  from  Court  Officer,  §  1477, 

p.  878;  §  1830,  p.  1125. 
Property  recoverable  by  summary  order,  §  1601,  p.  966. 
Property  Taken  out  of  Custody,  etc.,  after  bankruptcy,  summarily  ordered 

returned,   §   1800,  p.   1099. 
Property   voluntarily    Surrendered    by    bankruptcy    receiver    recoverable,    § 

1801,  p.  1099. 

Whether  recovery  be  plenary  or  summary,  §  1802,  p.  1100. 
Purchasers  at   Sales  by  trustees   or  receivers   subject  to,   §   1804,   p.   1100;   § 

1962,   p.    1221. 
Real  Estate  generally  considered  in  bankrupt's  possession,  §  1809,  p.  1109. 
Receiver  may  compel  Surrender  of  Property  not  held  adversely,   §   392,   p. 

256. 
Rights   of  Action   in   Personam,   not  property  "in   possession"   of  bankrupt, 

§  1810,  p.  1109. 
Separate   Plenary   Action   in   State   court    or   in   U.    S.    Circuit   Court,    none 

maintainable  where  property  in  custody  of  bankruptcy  court,   §   1812,  p. 

1110. 
Suits  in  Personam  against  Trustees  and  Receivers,  see  "Trustee  in   Bank- 
ruptcy— Suits  against." 
Where    Summary    Jurisdiction    exists,    whether    Plenary    Jurisdiction    also 

exists,  §  1690,  p.  1042  n.  . 
None  to  compel   Surrender,  in   cases   of   Liens   by  legal   proceedings   until 

Adjudication   of  bankruptcy,  §   1461,  p.   86J. 
Third  Party,  Interested,  not  to  be  compelled  summarily  to  accept  paid  up 

policy,  §  1010,  p.  562. 
Third  Party  Interested  not  to  be  compelled  to  apply  for  Cash  Surrender 

Value  of  policj%  §   1010,  p.   562. 


2268  CKXEKAL  iXDKx. 

SUMMARY  JURISDICTION— Continued. 

To   prevent   Trustee   Interfering  with    Others'    Rightful   Custody,   §    1900,   p. 

1187. 
To   require    Receivers   and   Assignees    to   surrender   assets,    §    1611,   p.   978; 

§  1822,  p.   1120. 
Trustee   within   summary  jurisdiction    of   bankruptcy   Court,    §    904,   p.    518; 

§   1872,   p.   1163. 
Whether   action   to   be   in   bankruptcy   proceedings   themselves,    or   separate 

plenary  action  maintainable  in   U.   S.   District  Court,   §   1811,  p.   1109. 
Once  Attaching,  Complete  for  all  purposes,  §  1797,  p.  1092;  §  1798,  p.  1098. 
To  Issue  Restraining  Orders  and  Injunctions,  see  "Restraining   Orders  and 

Injunctions." 
May   Marshal   liens   and   sell   personal   property   in   trustee's   actual   custody 

although  in  another  State,  §  1706,  p.  1053. 
To  Marshal  Liens  on  property  in  its  custody 

See    "Marshaling    of    Liens    on    Property'    in    Custody    of    Bankruptcy 
Court." 
Property   in    Actual    Possession   of   bankrupt,    though    Claimed   by   another, 

Seizable   Summarily,  §  356,  p.  239. 

SUMMARY  ORDERS 

See  "Lien  by  Legal   Proceedings   Nullified  by   Bankruptcy — Order   of  Sur- 
render."   ' 
See  "Marshaling  of   Liens   on   Property  in   Custody  of   Bankruptcy   Court." 
See  "Reclamation,  Surrender  or  Redelivery." 
See  "Res  Judicata." 
See  "Voluntary  Surrender  of   Custody  by   Bankruptcy   Court." 

SUMMARY    ORDERS    ON   BANKRUPTS  AND    OTHERS 

Ancillary  Jurisdiction,  none  in  bankruptcy  court  of  another  district  to  make 
Summary  Order,  §  1867,  p.  1162. 

Not  Appealable,  as  "Claims,"  §  2908,  p.  1705. 

Appealable  as  "controversies,"  §  2924,  p.  1713. 

On  Assignee   of   Bankrupt,   §  65,  p.  71  n;   §   1822,   p.   1120. 

On   Bank  holding  Deposit,   §   1822,  p.   1119. 

Bankrupt  ordered  to  execute  Necessary  Papers,  §  1115,  p.  636;  §  1835,  p. 
1128. 

Bankrupt's  Sworn  Denial  of  Present  Possession,  not  conclusive,  §  1843,  p. 
1140. 

Beneficial  Interest  in  trustee  must  exist,  §  1817,  p.  1114. 

Circumstantial  Evidence  sufficient,  §  1849,  p.  1146. 

"Clear,"  "Certain,"  "Convincing,"  or  "Satisfactory"  proof,  or  proof  "Beyond 
Reasonable  Doubt,"  requisite,  §  1842,  p.  1137. 

Contempt  for  Disobedience  of  summary  orders,  §  1856,  p.  1154. 

On  Corporation  Agent  of  bankrupt,  §  1823,  p.   1120. 

Court  Officers  holding  under  Nullified  Legal  proceedings  subject  to  sum- 
mary order,  §  1829,  p.  1125. 

Courts  proceed  with  Great  Caution  in  granting  summary  orders,  §  1840, 
p.   1134. 

Custodians  and  Court  Officers  in  possession  under  nullified  legal  proceed- 
ings, not  "Adverse  Claimants,"  §  1827,  p.  1122. 

Disbursements  Already  Made,  summary  order  Avill  not  lie  for,  §  1477,  p. 
878;  §  1612,  p.  979;   §   1830,  p.   1125;   §   1846,  p.   1145. 

Due  Hearing  requisite,  §  1839,  p.  1132. 


GE)NERAL  INDEX.  2269 

SUMMARY  ORDERS  ON  BANKRUPTS  AND  OTHERS— Continued. 

Evidence  on  Contempt  for  disobedience  of,  to  be  "Beyond  Reasonable 
Doubt,"  §  1859,  p.  1157;  §  2340,  p.  1419. 

Filing  of  Petition  to  Redeem  from  Undisputed  Liens,  whether  it  gives  sum- 
mary jurisdiction  to  order  surrender  on  tender  of  amount  due,  §  182(5,  p. 
1121;   §    1870,   p.    1163. 

Almost  Incontestible  Evidence  requisite  to  overcome  Bankrupt's  Sworn 
Denial  of  Concealed  Assets,  §  1844,  p.  1141. 

Interest  not  to  be  included,  §  1847,  p.  1145. 

Jurisdiction,  §   1815,  p.   1113;   §   1819,  p.   1115. 

Lienholder  in  possession  after  Satisfaction  of  lien,  §  1825,  p.  1121. 

Until  Liens  Nullified,  custodians  and  court  officers  are  "Adverse  Claim- 
ants," not   subject  to,  §  1828,  p.   1124. 

On  Nonbankrupt  Partner  and  his  Assignee,  §  65,  p.  71  n;  §  2935  p.  1715. 

Opportunity  must  be  given  to  defend  on  Contempt,  §  1858,  p.  1156;  §  2341, 
p.  1419. 

Order  of  surrender  Before  Adjudication,  §   1818,  p.   1\14. 

Order  of  surrender  Before     Appointment  of  trustee,  §  1818,  p.  1114. 

Order  to  Describe  Property — Orders  to  Pay  "Value"  of  Goods,  Alternative 
Orders,  etc.,  §  1853,  p.  1152. 

Orders  may  not  require  Surrender  of  more  than  is  in  possession,  §  1477, 
p.  878;  §  1612,  p.  979;  §  1830.  p.  1125;  §  1846,  p    1145. 

Orders  on  Court  officers  and  Custodians,  if  application  therefor  be  to  Bank- 
ruptcy Court,  procedure  follows  ordinary  rules  as  to  summary  orders  on 
bankrupts   and  agents,  §   1862,  p.   1158. 

Orders  on  court  Officers  and  Custodians,  if  application  therefor  be  to 
State  Court  whose  officer  in  control,  procedure  follows  that  of  such 
court,  §  1861,  p.   1158. 

Outstanding  Claims  by  Third  Parties  on  property  in  hands  of  bankrupt  or 
agent  does  not  divest  summary  jurisdiction,  §  1816,  p.  1113. 

Part  adversely  held,  part  as  agent,  or  not  under  claim  of  beneficial  interest, 
§  1820,  p.  1117. 

See  "Pleading  and  Practice — Procedure  on  Summary  Petitions  against 
Bankrupts  and  Others." 

Possession,  whether  requisite  at  Time  of  Filing  Summary  Petition  or  at 
time  of  Granting  Order,  §   1848,  p.   1145. 

Preliminary  Inquiry  to  Ascertain  whether   Summary  Jurisdiction   Exists 
Jurisdiction    to    Determine   Facts   requisite   to   Summary   Jurisdiction,    § 

1863,    p.    1158. 
Examine   only   Far   enough   on   Preliminary   Inquirj^   as   to   Jurisdiction, 
to  ascertain  if  facts  alleged  in  good  faith  and  if  true  would  constitute 
"Adverse"  party,  §  1864,  p.   1159. 
Not  Concluded  by  pleadings  on  preliminary  inquiry,  §  1865,  p.  1161. 
Notice    served    outside    district    not    sufficient   to    confer   jurisdiction    to 
make  Inquiry  as  to  sunimar}-  Jurisdiction,  §  1866,  p.  1162. 

Present  Possession  or  Control  must  be  proved,  §  1845,  p.  1142. 

No  Presumption  of  Continued  possession  if  Circumstances  raise  Counter 
Presumption,   §   1852,  p.   1151. 

Presumption  of  Continued  Possession  when  property  Once  Traced  and 
Shortage  Unexplained,  §  1850,  p.  1146. 

Procedure  on,  in  general,  §  1831,  p.  1126. 

As  to  Property  Obtained  from  Custody  of  Bankruptcy  Court  after  Bank- 
ruptcy 

Property  Taken   Out   of  custody  after  bankruptcy,  §   1800,  p.   1099. 


2270  GENERAL  INDEX. 

SUMMARY  ORDERS  ON  BANKRUPTS  AND  OTHERS— Continued. 

Property   Voluntaril}^    Surrendered   by    Bankruptcy    Receiver,    Summary 

Order  lies,  §  1801,  p.  1099. 
Property  Voluntarily  Surrendered  by  trustee,  no  Summarj^  Order  will 
lie,   §   1803,  p.   1100. 
Punishment  for  disobedience   of  summary  order  is   Not   Imprisonment  for 

Debt,  §  1841,  p.  1135. 
Reasonable  Notice  on  respondent    requisite,  §  1838,  p.  1130. 
Re-examination  (on  Contempt)   of  Evidence  on  which  order  for  Surrender 

based,  §   1857,  p.   1155. 
Referee  has  Jurisdiction  to  make  Summary  order,  §  1836,  p.  1128. 
Refusal  of  Discharge,  whether  Res  Judicata  as  to  Concealment,  §   18-45,  p. 

1142  n. 
Rejecting   Improbable   Explanations,   §    1851,   p.    1149. 
Reviewable  by  petition  to  review,  §  1855,  p.  1153;  §  2935,  p.  1715;  §  2938,  p. 

1716. 
Whether  "Review"  or  "Appeal,"  §  1855,  p.  1153;   §  2908,  p.  1705;   §  2935,  p. 

1715;  §  2938,  p.  1716. 
Review  of  summary  orders^ — set  aside  only  for  Manifest  Error,  §  1854,  p. 

1153. 
Right  of  Trial  by  Jury  Not  Violated  thereby,   §  1834,  p.   1128. 
Summary  Orders  on  Agents  and  others  not  claiming  adverse  interests,  in 

general,  §  1822,  p.  1118. 
Summary  Orders  on  Bankrupt,  §  1819,  p.  1115 

No  matter  in  what  capacity  bankrupt  holds,  §  1820,  p.  1117. 
Officers  of  bankrupt  corporation  subject  to,  §  1821,  p.  1118. 
Summary  Orders  on  Court  Officers  and  Custodians,  §  1822,  p.  1118;  §  1860, 

p.  1158. 
Summary  orders  to   Surrender  Assets  Not  New  Function,  §  1833,  p.    1127. 
Trustee's  long  delay  in  filing  petition  for,  §   1845,  p.   1142  n. 
What  is  "Summary  Process,"  §  1832,  p.  1126. 
On    Wife,    §    1822,    p.    1119. 
Written  Petition  for,  requisite,  §  1837,  p.  1129. 

SUMMARY  ORDERS  ON  NONBANKRUPT  PARTNER  AND  OTHERS 
HOLDING  UNDER  HIM" 

Reviewable  by  petition   to  review,   §   2935,  p.   1715. 

Summary   Orders   on   Assignee   of   Nonbankrupt   Partner,   §   65,   p.   71   n. 

SUMMARY  ORDER  ON  TRUSTEE  OR  RECEIVER 

Appealable    as    "controversy,"    §    2925,    p.    1713. 

Jurisdiction   to   make,   §   1872,   p.   1163. 

See   "Reclamation,    Surrender    or    Redelivery." 

Preventing  his  interference  with  others'  rightful  custodj^  §   1900,  p.   1187. 

SUMMARY  PETITION  AGAINST  BANKRUPTS   AND   OTHERS 

See  "Summarj'  Orders  on  Bankrupts  and  Others." 

See  "Pleading  and  Practice — Procedure  on  Summary  Orders,  etc." 

"SUMMARY   PROCEEDINGS" 

Bankrupt   ordered   to   execute   necessary   papers,   §    1835,   p.    1128. 

See   "Conflict    of  Jurisdiction." 

In  general,  §  1831,  p.  1126. 

Proceedings  before   Referee,  are,   §   548,   p.  333. 


GENERAL  IXDEX.  2271 

"SUMMARY  PROCEEDINGS"— Continued. 

Right  of  trial  by  jury  not  violated  thereby,  §  1834,  p.  1128. 

Not  to  be  so  Summary  as  to  deprive  of  Fundamental   Right,   §  23,  p.  39. 

Notice  and   Reasonable  time  to   Prepare  to  be  Given,  §  23,  p.   39;   §  183S, 

p.    1130. 
See    '"Summary    Jurisdiction." 

See   "Summarj^   Orders    on    Bankrupts   and   Others." 

Summary   orders    to    surrender    assets    not    new    function,    §    1833,    p.    1127. 
What  is  "Summary  Process,"  §  1832,  p.  1126. 

SUMMARY  PROCESS 

What   is,   see   "Summary   Proceedings." 

See  "Summarj'  Orders  on  Bankrupt's  and  Others." 

SUITS 

See  "Creditors'    Bills." 

See  "Conflict   of  Jurisdiction." 

See  "Discharge — Stay    of    Suits    to    Permit    Interposition    of." 

See  "Forcible   Detainer." 

See  "Foreclosure." 

See  "Plenary  Actions   by  Trustee." 

See  "Replevin." 

See  "Restraining  Orders   and   Injunctions." 

SUPERSEDING   OF  CUSTODY    OF  ASSIGNEES  AND  RECEIVERS 

See  "Assignments  and  Receiverships   Superseded  by   Bankruptcy." 

SUPERSEDING  OF  STATE  COURT 

See  "Conflict  of  Jurisdiction." 

SUPERVISING  COMMITTEE 

Creditors  not  to  elect,  §  900,  p.  516. 

SUPPLEMENTARY    PROCEEDINGS 

Bankruptcy  court  may  stay,  §  2702,  p.  1601. 
Supplementing  Facts 

Supplementing  Facts  Shown  on  Record,  §  2967,  p.  1728  n. 
Supplies 

Priorities  for  furnishing,  to  Manufacturing  establishment,  §  2205,  p.  1357. 

SUPPORT  OF  CHILD   OR  WIFE 

Judgments  for,  nut  provable,  §  683,  p.  414. 
Liabilities  for,  not  discharged,  §  2757,  p.  1621. 

Liabilities   to  third  parties  not  excepted,  §  2759,   p.   1621. 

SUPREME  COURT'S   ORDERS  IN  BANKRUPTCY 

Si^e  "General  Orders  in   Bankruptcj'.'' 

SURETIES  AND   GUARANTORS 
For  Bankrupt 

Adverse   Claimants,   when,   §   1655,   p.   1029. 

Claims  of,  against  bankrupt  principal  Discharged,  §  2741,  p.  1615. 
Cosurety's    claim    for    contribution    for    payment    after    bankruptcy,    § 
640.   o.   390. 


2272  GENERAL  IXDEX. 

SURETIES  AND  GUARANTORS— Continued. 

Creditor  not  obliged  to  prove  claim  against  principal   even  on  surety's 

demand,  §  612,  p.  363;   §  1515,  p.  904. 
Creditor  Refusing  to  let  surety  have  Written  Instrument  to  attach  to 
proof,  surety  not  released,  §  1517,  p.  904. 

Unless  Surety  offers  to  indemnify'  creditor  against  expense,  §  151S, 
p.  904. 
Are    Creditors    before    Default    and   from    Date    of    Signing,    §    G44,    p. 

384. 
For  "Faithful   Discharge   of  DutA^"  where   no   Default  until  after  peti- 
tion Filed,  not  provable  claim,  §  647,  p.  389. 
For  Future  Rent  Not  Released  by  tenant's  bankruptcy',  §  662,  p.  403. 
Impliedlj^  Excepted  by  Statute  from  rules   that  Contingent  Claims   not 

Provable,  §  642,  p.   383. 
Obtaining   of   Judgment    Prerequisite    to    Liability   on   bond,    §   648,   p. 

389;   §  1524,  p.   908;  §  1914,  p.   1193;   §  2446,  p.  1478;  §  2712,  p.  1605. 
Pajang  principal's   debt  after  principal's   bankruptcy,   §  645,  p.   386. 
Principal's  Liability  not  Allowable  in  favor  of  Creditor,  not  allowable 

in  favor  of  surety,  §  646,  p.  388. 
Payments    enuring   to   benefit    of,    when   preferences,    §    1310,    p.    767. 
Payment  to  present  owner  of  claim,  preference  both  to  him  and  also 
to  transferrer,  if  transferrer  remains  bound  as   surety,  §   1311,  p.   767. 
Payments  by  are  not  preferences,  §  1288,  p.  759. 
Transfers  by  bankrupt  to   Indemnify,  may  be    Indirect   Preferences,   § 

1303,  p.  764. 
Subrogation  of,  to  creditors'  rights,  §   2280,  p.   1395. 
Proofs  of  Claim  by,  §  611,  p.  362. 
Petitioning    Creditors,    whether    sureties    and    Guarantors    ma}-    lie,    § 

231,   p.   179. 
Not  Released  by  Principal's  Discharge,  §  2671,  p.   1589. 
Retiring   Partner   Subrogated   to   Firm   Debts   he   pays,   §   2272,   p.   1390. 
Rights   of  creditors  against 

But   bankrupt    estate    not   to   pay   two   dividends   on    same   claim,    § 

1520,  p.  904. 
Creditor  receiving  dividends  out  of  maker's  estate  first,  may  prove 

only  for  unpaid  balance  against  surety,  §  1521,  p.  905. 
Creditor    receiving    dividends    out    of    surety's    Estate   first,    surety 
entitled  to  subrogation  to  creditor's  claim  against  maker's  estate 
in  proportion  to  dividend  paid  to  surety,  §  1522,  p.  905. 
Discharge  of  bankrupt  principal  equivalent  to  return  of  execution 

unsatisfied,  §  1523,  p.  906. 
Staying    discharge    and    permitting    creditor    to    take    judgment    to 

fix  liability  on  surety,  §  1524,  p.  906. 
Refusing  to  enjoin  where  legal  action  requisite  to  fix  liability  on, 

§  1914,  p.  1193. 
Subrogation    of    creditors    to    indemnity   given    sureties,    §    22§0,    p. 

139. J. 
Not  impaired  by  adjudication  nor  discharge,  §  1510,  p.  902. 
Applies  to  secondary  liability  on  obligation  itself,  not  to  sureties 

in   court  proceedings,   §   1511,   p.    902. 
Attachment    and    appeal    bonds    released   if   liability    dependent    on 

judgment,  §  1511,  p.  902. 
Creditors   entitled  to  all   remedies  against  sureties,   §   1512,  p.   903. 


GENERAL  INDEX.  2273 

SURETIES  AND  GUARANTORS— Conlinued. 

Rights   and   defenses   of   sureties   of   bankrupt    not   affected,    §    1513, 

p.  903. 
In  general,  §  1510,  p.  902. 
Right   to   retain   indemnity   given   at   signing,   unaffected,   §    1514,   p. 

903. 
No    duty   on    creditor    to   prove    claim   against   bankrupt    principal, 

§  1515,  p.  904;  §  612,  p.  363. 
Right  of  surety  or  endorser  to  prove  creditor's  claim  against  bank- 
rupt  principal,    §    1516,   p.   904. 
Where    creditor   refuses    to    let   surety   have   written    instrument   to 

attach    to    proof,    surety    not    released,    §    1517,    p.    904. 
Unless  surety  offers  to  indemnify  creditor  against  expense,  §   1518, 

p.   904. 
Creditor  entitled  to  prove  against  both  principal  and  surety  where 
both  bankrupt,  §  1519,  p.  904. 
Right- of,  to  Prove  Creditor's  Claim  against  bankrupt  principal,  §  1516, 

p.   904. 
Subrogated,    on   payment,   pro   tanto,   to   Creditor's    Dividend,   §   613,   p. 
364. 
Qualified  Stay  of  Suit,  where  Judgment  necessary  to  Perfect  rights  against, 
§  648,  p.   389;   §   1524,   p.   908;    §   1914,   p.   1193;    §   2446,   p.   1478;    §  2712,   p. 
1G05;    §    2713,    p.    1605. 
Staying  discharge  to  permit  creditor  to  perfect  rights  against 

See    "Discharge — Staying   of   Suits    against    Bankrupt   to    permit'  Inter- 
position   of." 
See  "Restraining  Orders  and   Injunctions — Qualified  Stay." 

SURETY 

Bankrupt   r.s,   his   contract  of   suretyship   a   provable   debt,   §   643,  p.   383. 

SURRENDER 
Of  Discharge 

Xo  Voluntary  Surrender  of  Discharge  by  bankrupt,  §  2445,  p.  1477. 
Of  Lien  by  Legal  proceedings  before  Claim  allowable,  §  779,  p.  461. 
Petition  for  order  on  trustee  to  surrender  property  to  third  Party 

See  "Reclamation,  Surrender  or   Redeliver}' — Petition  for." 
Of  Preference 

Appealability    of    disallowance    of    claim    because    preference    not    sur- 
rendered, §  2909,  p.  1705. 
Order  of  Disallowance  to  fix  time  for  Surrender  and  allowance,  §  772, 

p.   458. 
Preference   on    Distinct   Transaction,    surrender   of   not   prerequisite   to 

Validity   of    Lien,    Itself  not    Preference,   in    ^Marshaling   of   Liens,   § 

773,  p.  459;  §  1428,  p.  846;  §  1899,  p.  1187. 
See    "Preferred    Creditors — Allowability   of    Claims    of." 
Prerequisite  to  allowance  of  Claim  and  sharing  in  dividends,  §  708,  p. 

456;  §  1427,  p.  846;  §  2223,  p.  1363. 
Preference   surrendered,  claim  "allowable,"  §  769,  p.  456. 
Preference  Not  Surrendered  until  Adverse  ruling,  yet  claim  allowable,    . 

§  771,  p.   458. 
Where   Preference   not  voidable   under   act,   but   under    general    equity 

principles,    §   774,   p.    449;    §   2222,    p.    1363. 

2  Rem  B— 68 


2274  GE;Ni;RAi,  index. 

SURRENDER— Continued. 

Requisite    only    when    allowance    to    share    in    dividend    sought,    §    773, 

p.    459. 
Not  Voluntarily   Surrendered   but   only  on   Litigation,   yet   allowable,   § 

770,  p.   456. 
Not    requisite    to    Validity   of    Different    Lien    on    marshaling    liens    for 

sale,   §   773,   p.   459;   §   1428,   p.    846;   §   1899,  p.   1187. 
Of  Security 

Claim   allowed   without    Deduction   upon,   §   767,   p.   455. 

TAKING  BENEFIT  OF  ACT 

Infliction   of   penalty   or   forfeiture   for,   prohibited,   §   474,   p.   306. 

TAKING   OF  POSSESSION 
Of  After-Acquired   Property 

See   "Possession — Taking  of."' 
See    "Recording." 
Curing  lack  of  Record 

See   "Possession — Taking   of." 
See  "Preferences." 
See   "Recording." 

TAXES 

Assessed   Before    Bankruptcy   but   not    Payable    until    after    adjudication,    § 

2142,   p.    1321. 
Assigned  taxes   sufficient  for  petitioning   creditors'   claims,   §   235,   p.   183   n. 
Back  Taxes,  omitted,  to  be  paid  by  trustee,  §  2143,  p.  1321. 
Bankruptcy  Court,  forum  as   to  Amount  and  Legality  of,  §  2157,  p.   1332. 
Costs  of  Administration,  prior  to  taxes,  §  2141,  p.  1321. 
Decision  of  State  Board  of  Assessment  not  "Res  Judicata"   in  bankruptcy, 

§  2158,  p.  1332. 
Delinquent  Penalties  and  Interest,  §  2144,  p.  1321. 
Not  Discharged,  §  2745,  p.  1616. 

Exempt   Property,   taxes   on,   to  be  paid,   §  2146,  p.   1323. 
Failure    to    pursue    Statutory    Appeal    or    Abatement,    not    fatal,    §    2159,    p. 

1332. 
Firm  Taxes  in   Individual   Bankruptcies,   §  2151,  p.   1329. 
"Franchise   tax,"   §   2156,   p.    1331. 
Funds   in  hands  of  trustee  taxable,   where   taxable  if  similarly  sequestrated 

by  State  Legal  Proceedings,  §  2152,  p.   1329. 
Includes   Assessment   for    Local    Improvements,    §   2153,   p.    1330. 
Nature    of,   whether   "License,"    "Penalty"    or    "Tax,"    Determined    by    State 

Law,  when,  §  2154,  p.   1330;   §  2155,  p.   1330. 
Must  be   Owing  by   bankrupt  and  assessed  against   him,   §   2150,   p.    1328. 
To  be  Paid  whether  property  on  which  levied  comes  into  trustee's  hands  or 

not,  §  2145,  p.  1322. 
Paid  Out  of  General   Fund  though  only  one   benefited  is   Aiortgagee,   pur- 
chaser,  etc.,   §  2147,   p.   1323. 
Priority  belongs  solely  to  State,  Municipality,  etc.,  §  2148,  p.  1325. 
Priority  of,  on  Distribution,  §  2141,  p.  1319. 

No  Priority  to  one  who  has  paid  tax,  or  holds  tax  title,  §  2148,  p.  1325. 
"Proof,"  formal  "Proof"  not  required,  §  702,  p.  423;   §  2161,  p.   1334. 
Not   such    "Secured"    claim   as    requires    "Exhaustion    of    Security,"    §    2163, 

p.  1335. 


GENEPL\Iv  INDEX.  2275 

TAXES— Continued. 

"Subrogation"  to  tax*  lien  sometimes  proper,  §  2149,  p.   1327. 

Trustee  to  search  out  taxes,  §  703,  p.  423;  §  2161,  p.  1334. 

Whether  a  "Debt,"  §  701,  p.  423;  §  2160,  p.  1333;  §  2745,  p.  1616. 

Whether  are  "Provable"  Claims,  §  701,  p.  423;  §  2160,  p.  1333;  §  2745,  p.  1616. 

Year's  limitation  not  applicable  to,  §  730,  p.  438;  §  2162,  p.  1334. 

TAX  TITLE 

Holder   of,   whether   entitled   to    Priority,   §   2148,   p.    1325. 

TELEPHONE    COMPANIES 

See  "Involuntar}-   Bankruptcy." 

"TEN  DAYS  NQTICE  BY  MAIL" 

See    "Notice"   and   "Xotices    to    Creditors."^ 

TENDER 

Of  Actual   Consideration   Paid 

Xot    Necessary   in    Fraudulent   Transfer   Suit,   §   1737,   p.   1069. 

Not   requisite   in   trustee's   suit   to    recover    Preference,   §    1769,   p.    1076. 

Of  Amount  Due 

On  Undisputed  lien  gives  Summary  Jurisdiction  to  order  Cancella- 
tion, Assignment  or  Release,  on  petition  to  Redeem,  §  1826,  p.  1121; 
§   1870,  p.   1163. 

See,  also,  "Redeeming   from   Liens." 

See,    also,    "Summary   Jurisdiction." 

See,  also,   "Summarj^   Orders   on   Bankrupts   and   Others." 

TERM  OF  COURT 

Amendment   of   Discharge   Decree   after,    §   2802,   p.    1642. 

No  "Terms  of  Court"  in  bankruptcy,  §  431,  p.  276;  §  858,  pp.  491,  492. 

Vacating  of  Adjudication  "After  Term,"  §  431,  p.  276. 

TERM  OF  OFFICE 

Of  referee,  §  498,  p.  319. 

THEATRICAL  CORPORATION 

See  "Involuntar}-  Bankruptcy." 

THEORY  OF  BANKRUPTCY  LAW 

See  "Nature  of  Bankruptcy  Law." 
See  "Objects  of  Bankruptcy  Law." 
See  "History  of  Bankruptcy  Law." 
See  "Subject  of  Bankruptcies." 

THIRD  ACT  OF  BANKRUPTCY 
Preference  by  Legal  Proceedings 

See  "Acts  of  Bankruptcy — Preferences  by  Legal  Proceedings  Not  Va- 
cated within  Five  Days." 

TICKET  AGENT 

Conversion  by,  whether  Discharged,  §  2785,  p.  1629. 


2276  GEXERAL  INDEX. 

TIME  FOR  APPEAL 

To  Circuit  Court  of  Appeals,  §  2981,  p.  1732. 
To  Supreme  Court 

When  Motion  for  Rehearing  filed,  §  3022,  p.  1748. 

Within  thirty  days,  §  3022,  p.  1748. 

TIME 

For  Appeal  and  Error 

Date  of  Entering  order  or  judgment,  not  of  actual  rendition,  fixes  date, 

§  2984,  p.   1733. 
Date   of  entering   order   overruling  motion   for   rehearing,    fixes   date,   § 
2988,  p.  1735. 
Of  claiming  Exemptions  fixed  by  Act  itself,  §  1048,  p.  595. 
Element  in  fixing  Attorne3^s'  Fees,  §  2047,  p.  1268. 
For  Filing  of  Petition 

W^ithin  Four  ^Months  of  act  of  bankruptcy,  else  act  not  available,  §  182/ 
p.  152. 

TIME  FOR  REVIEW 

,Six  months,  §  2997,  p.  1737. 
In  "Bankruptcy  Proceedings"  proper,  §  2999,  p.  1737. 

TITLE 

To  Cop3-rights  passes  to  trustee,  §  958,  p.  536. 

To  Documents,  etc.,  passes  to  trustee,  §  956,  p.  536. 

To  Exempt  property  does  not  pass  to  trustee,  §  1024,  p.  572. 

To  Fraudulently  Transferred  Property  passes  to  trustee,  §  962,  p.  538. 

To  Patents  passes  to  trustee,  §  958,  p.  536. 

To  Powers,  which  the  bankrupt  might  exercise  for  own  benefit,  passes  l!o 

trustee,  §  960,  p.  537. 
To  Trademarks    passes  to  trustee,  §  958,  p.   536. 
Trustee  gets  title  as  of  Date  of  Adjudication,  §  99,  p.  96. 

TITLE  TO  PROPERTY 

Not  Affected  by  Discharge,  §  2668,  p.  1587. 

TITLE  OF  TRUSTEE 

General    Discussion   and   Complete    Statement    of   trustee's   title   and    rights, 
§  1137,  p.  662. 

How  Vests  in  trustee 

By  Operation  of  law,  §  1112,  p.  635. 

Scheduling  by  bankrupt  not  essential  to  passing  of  title,  §  1113,  p.  635. 

Concealed  Property  does  not  revest  in  bankrupt  on   closing  of  estate, 

§  1113,  p.  636  n. 
Property  in  Foreign  countries  requires  Assignment  by  bankrupt,  §  1114, 

p.  636. 
Bankrupt   compelled   to    Execute   Assignments,   to   aid   passing   of   title, 
§  19,  p.  36;  §  1009,  p.  561;  §   1115,  p.  636. 
Local  Law  Determines  Effectiveness  of  transaction,  to  accomplish  "'Trans- 
fer" of  title,  §  1139,  p.  666. 
Local  Law  determines  Time  Title  passes,  §  1139,  p.  666. 
Local  Law  governs  Validity  of  title,  §  1140,  p.  667. 


GENERAL  INDEX.  2277 

TITLE  OF  TRUSTEE— Continued. 

Peculiar  Title  and  Rights  of  Trustee,   Conferred  by  the  bankruptcy  act  it- 
self, §  1271,  p.  749;  §  1273,  p.  750. 

Cases  under  this  subject  must  have  arisen  since  passage  of  act,  §  1272, 

p.  750. 
History  and  origin  of  provisions  avoiding  preferences,  and  liens  by  legal 

proceedings,  §  1273,  p.  750. 
•    "Trust    fund"    theoretical    basis    of    peculiar    titles    conferred    by    bank- 
ruptcy act,  §  1274,  p.  751. 
Efficiency  of  facts  to  create  passing  of  title,  and  nature  of  title  passing, 

determined  by  state  law,  §  1275,  p.   754. 
Voidable  preferences,  see  "Preferences." 
Liens    by    legal    proceedings,    nullified    by    bankruptcy,    see    "Liens    by 

Legal  Proceedings  Nullified  by  Bankruptcy." 
Fraudulent    transfers    within    four    months,    see    "Fraudulent    Transfers 

within  Four  Months." 
Section  70a  to  be  Construed  with  Cognate  sections,  §  1138,  p.  663. 
Status  of  property  acquired  during  pendency  of  petition 

Vests,  if  proceeds  of  property  transferable  or  seizable  at  time  of  filing, 

§  1132,  p.  644. 
Does  not  vest,  if  property  independently  acquired  or  bought  on  credit,  § 

1132,  p.  644. 
Evils  of  old  law  vesting  title  as  of  date  of  filing  petition,  §  1133,  p.  644. 
Bona    fide*  transactions    on    present   consideration    not    affected,    §    1134, 

p.   646. 
Acquired  by  gift  or  inheritance,  does  not  pass  to  trustee,  §  1135,  p.  647. 
Bought  on  credit  does  not  pass,  §  1135,  p.  647. 
Property  purchased  with  proceeds  of  property  which  was   in   existence 

at  time  of  filing  petition,  whether  passes  to  trustee,  §  1136,  p.  649. 
Status  of  property  acquired  after  adjudication 
Title  does  not  pass,  §  1130,  p.  643. 
After-acquired    property    transferable    at    date     of    bankruptcy    passes, 

though  incident  to  property  not  passing  to  trustee,  §  1131,  p.   644. 
Liens   by   Legal   Proceedings   cannot  be   acquired  after   adjudication,   § 

1125,  p.  642. 
Preference  can  not  be  acquired  after  adjudication,  §  1378,  p.  803. 
Status  of  property  after  filing  of  petition,  and  before  adjudication 
Title  does  not  vest  until  trustee's  qualification,  §  1120,  p.  640. 
Before  trustee's  qualification,  title  is  in  bankrupt,  §  1120,  p.  640. 
Bankrupt   Quasi  Trustee  until   receiver   or  trustee   appointed,   §   383,  p. 

252;  §  1121,  p.  640. 
See  also,  "Title,  When  Vests  in  Trustee." 
Destruction  of  Property  meanwhile,  §  1122,  p.  641. 
Institution  of  Suits  by  bankrupt  meanwhile,  §  1122,  p.  641. 
Liens  given   in   meantime,   whether   subject   to    creditors    right,   §    1124, 

p.   641. 
Liens  by  Legal  Proceedings  can  not  be  acquired  after  adjudication,  § 

1125,  p.  642. 
Liens  by  Legal  Proceedings  acquired  between  filing  of  petition  and  ad- 
judication, §  1126,  p.  642;  §  1452,  p.  861;  §  1453,  p.  862. 
Bankrupt  retains  Dominion  and  power  of  disposal  before  adjudication 

unless  receiver   or   marshal   takes   possession   or   injunction    issues,   § 

1128,  p.  643. 


2278  GENERAL  INDEX. 

TITLE  OF  TRUSTEE— Continued. 

Remedies  of  creditors  holding  Securities  meantime  Unimpaired,  §   1129, 

p.  643. 
Preferences  after  filing  petition  and  before  adjudication  possible,  §  1377, 

p.   803. 
Summary  order  on  bankrupt  to  Surrender  property,  §  1818,  p.  1114. 
Sales  before  Adjudication,  §  1943,  p.  1212. 
As  successor  to  bankrupt's  title  and  rights,  §  1144,  p.  672. 

Bound  by  bankrupt's   sales,  mortgages,   deliveries,   bailments,   contracts 

and  equitable  liens,  §  1145,  p.  676. 
Thus,  as  to  Setting  Apart  or  Delivery  Sufficient  to  Pass  Title  to  Goods 

Sold,  Pledged  or  in  Process  of  Manufacture;   and  "Warehousing,"   § 

1146,  p.  676. 
Bankrupt's  Contracts  of  Purchase  or   Sale,  and  His   Alortgages,   §   1147, 

p.  677. 
Bankrupt's  assumption  of  mortgage,  §  1148,  p.  678. 
Estoppels  against  bankrupt,  good  against  trustee,  §  1149,  p.  678. 
Specific  contractual  rights,   §   1150,  p.   678. 
Equitable  lien,  §  1150,  p.  678. 
Forfeiture  clauses,  rent,  etc.,  §  1151,  p.  680. 
Fixtures,  §  1152,  p.  680. 

Disregarding  note  and  suing  on  original  consideration,  §  1153,  p.  680. 
Mechanic's  and  subcontractors'  liens,  §  1154,  p.  680. 
Landlords'  liens,  §  1154,  p.   680. 
Mechanics'   liens,    etc.,   are   not   liens    obtained   by   legal   proceedings    or 

preferences,  §  1155,  p.  681. 
Subcontractors'  liens,  §  1156,  p.  682;  §  1154,  p.  680. 
Liverymen's  liens,  §  1157,  p.  683. 
Artisans'  liens,  §  1158,  p.  683. 
May   urge   Transfer   Absolute   in    Form,    but   mortgage   in   fact,    §    1200, 

p.  698. 
May  plead  Waiver,  §  1201,  p.  698. 

May  plead  payment,  accord  and  satisfaction,  etc.,  §  1202,  p.  698. 
Trustee  entitled  to  all  offsets,  rebates,  etc.,  of  Bankrupt,  §  1203,  p.  698. 
May  plead  Bankrupt's  lack  of  capacity,  §  1204,  p.  698. 
May  urge  articles  not  fixtures,  §   1205,  p.   698. 
May  urge  Facts  Constitute  Sale,  §  1206,  p.  698. 
Right  of  stoppage  in  transitu  unimpaired,  §  1168,  p.  686. 
Right  to  rescind  for  fraud  unaffected,  §  1169,  p.   687. 
Right  to  set  oflf  and  counterclaim  unimpaired,  §  1170,  p.  687. 
See,  also,  "Set-ofif  and  Counterclaim." 
Application  of  payments,  §  1189,  p.  694. 
Creditor's  right  to  make  application  in  absence  of  debtor's  instructions, 

§  1190,  p.  695. 

Application  to  be  as  equity  requires,  in  absence  of  directions,  §  1191,  p. 
695. 

Application  of  securities  to  be  made  in  accordance  with  contract,  §  1191, 

p.  695  n. 
Trustee  succeeds  to  bankrupt's  defenses  and  rights,  §  1192,  p.  695. 
May  interpose  Bar  of  Statute  of  Limitations,  §  1193,  p.  696. 
May  urge  statute  of  frauds,  §  1194;  p.  696. 
May  plead  illegality,  §  1195,  p.  696. 
May  plead  usury,  §  1196,  p.  696. 


GENERAL  INDEX.  2279 

TITLE  OF  TRUSTEE— Continued. 

May  redeem  Mortgaged  Property,  §  1197,  p.  697. 

May  recover  property  misapplied  to  Agent's  Private  debt,  §  1198,  p.  697. 

May  defend  that  chattel  mortgage  does  not  cover  specific  after-acquired 

property  or  is   void  for  indefiniteness   or  for   failure   to   comply   witli 

statutory  requirements,  §  1199,  p.  697. 
Statutory  liens  for  supplies,  §  1159,  p.  683. 
Landlord's  lien  or  priority  for  rent,  §  1160,  p.  683. 
Mechanics'  liens,  etc.,  valid  though  affidavit  to  stop  notice  not  filed  till 

after  bankruptcy   of  owner,   etc.,   §   1161,   p.   684. 
Failure  to  perfect  lien  in  statutory  form  invalidates,  §  1163,  p.  684. 
Where  perfecting  dependent   on   lien   by   legal   proceedings,   bankruptcy 

may  dispense  with  same,  §  1163,  p.  685. 
Inchoate  dower  right  unimpaired  by  bankruptcy,  §  1166,  p.  686. 
Widow's    and    children's    allowances,    when    trustee    takes    title    subject 

thereto,   §   1167,   p.   686. 
In  tracing  trust  funds,  trustee  stands  in  bankrupt's  shoes,  §  1884,  p.  1177. 
Trustee  entitled  to  all  objections  to  claims  bankrupt  might  have  urged, 

but  not  limited  to  such,  §  782,  p.  461. 
Creditors   and   trustee   bound   by   bankrupt's   contracts   and   acts,   §   783, 

p.   462. 
As  successor  to  creditors'  title  and  rights 

Trustee  succeeds  to  rights  of  creditors,  §  1207,  p.  609. 
But   creditors'   title  taken   by  trustee,   generally,   that   only  of   some   ex- 
isting creditor  "armed  with  process,"  §  1208,  p.  704. 
Accepted  doctrine,  bankruptcy  not  an  "equitable  levy,"  §  1214,  p.  714. 
Maxim  that  "filing  of  petition  a   caveat,   attachment  and  injunction,"   § 

1215,  p.  718. 
Fraudulent    transfers    and    property    held    on    secret    trust    recoverable 

§  1216,  p.  719. 
See  "Fraudulent  Transfers." 
Alleged    "consignments,"    "leases,"    "agencies,"    "pledges,"    "bailments, 

where  really  sales,  §  1228,  p.  726. 
Liens  void  as  to  creditors  for  want  of  record,  void  as  to  trustee,  §  1229 

p.  731. 
Liens   invalid   under   State   law   for   other   reasons    than   lack   of   record 

void  as  against  trustee,  §  1257,  p.  741. 
Chattel  mortgages  with  power  of  sale,  when  void,  §  1258,  p.  741. 
Not  void  if  agreement  to  apply   exists,  though   agreement   disregarded 

§  1259,  p.  743. 
Mere  remaining  in  possession  and  selling,  without  reservation  of  power 

of  sale,  §  1260,  p.  743. 
Power  of  sale  not  reserved  in  express  terms,  §  1261,  p.  743. 
Whether  power  of  sale   mortgage   void  only  as   to  goods   sold,   or  void 

in  toto,  §  1262,  p.  743. 
Conditional  sales  contracts  with  power  of  sale,  §  1263,  p.  744. 
Mortgages  on  after-acquired  property,  §  1264,  p.  745. 

Whether  lien  begins  at  date  of  taking  possession  or  reverts  is  to  be  de- 
termined by  State  law,  §  1237,  p.  735. 
As  to  after-acquired  property,  §  1238,  p.  735. 
Permitting  creditors  to   levy  after   bankruptcy,  in   order  to  "arm  with 

process,"  §  1239,  p.  735. 
Defective  refiling  of  chattel  mortgage,  §  1240,  p.  736. 


2280  GENERAI.  INDEX. 

TITLE  OF  TRUSTEE— Continued. 

Unrecorded  or  unfiled  conditional  sales  contracts,  void,  §  1241,  p.  736. 

Provided  there  exists  a  creditor  "armed  with  process,"  §  1242,  p.  736, 

Not  void  where  filing  or  recording  not  required,  §  1243,  p.  738. 

Unrecorded  or  unfiled  chattel  mortgages,  void,  §  1230,  p.  732. 

Unfiled  -chattel  mortgages  not  void,  where  -filing  or  recording  not  re- 
quired, §  1231,  p.  732. 

Meaning  of  "required,"  §  1232,  p.  733. 

As  to  necessity  of  actual  levy  or  "arming  with  process,"  §  1233,  p.  733. 

Not  void  for  simple  non-record  where  damage  to  creditors,  etc.,  also 
requisite  by  State  law,  §  1234,  p.  734. 

Nor  where  mere  equitable  sequestrations  by  receivers,  assignees,  etc., 
insufficient,  §  1235,  p.  734. 

Taking  of  possession  curing  lack  of  record,  §   12o6,  p.   734. 

Peculiar  rights  or  remedies  of  creditors  given  by  special  state  statutes, 
trustee  succeeds  thereto,  §  1265,  p.  745. 

How,  where  special  rights  dependent  on  special  remedies,  not  available 
because  of  bankruptcy,  §  1266,  p.  746. 

Maintaining  statutory  suits,  to  perfect  special  rights,  §  1267,  p.  747. 

Maintaining  statutory  suits  to  perfect  special  rights  where  bankruptcy 
court  not  in  custody  of  property  involved,  §  1268,  p.  748. 

Fraudulent  or  preferential  transfers  by  State  law,  inuring  to  benefit  of 
all   creditors,   whether  so  inure   in   bankruptcy,   §   1269,   p.   748. 

Prior  general  assignment,  whether  effective  to  avoid  liens  recorded  be- 
fore bankruptcy,  but  not  until  after  assignment,  §  1270,  p.  749. 

Creditor  same  as  in  State  law  so  far  as  concerns  "arming  with  Proc- 
ess," §  1209,  p.  706. 

Where  "arming  with  process"  not  requisite  by  State  law,  not  requisite 
in  bankruptcy,  §  1210,  p.  708. 

Discussion  of  rejected  doctrines  as  to  creditors'  title  taken,  §  121],  p. 
709;  §  1212,  p.  709;  §  1212,  p.  713. 

As  to  property  not  in  custody,  whether  analogous  to  receiver's  or  as- 
signees', §  1211,  p.  709. 

Bankruptcy  operating  as  "equitable  levy,"  §  1212,  p.  709. 

Bankruptcy  operating  as  equitable  levy  precisely  as  other  equitable 
levies  operate  in  same  state,  §  1213,  p.  713. 

Distinction  between  conditional  sales  as  mere  retentions  of  title  and 
chattel  mortgages  as  "transfers,"  §  1244,  p.  738. 

Disguised  conditional  sales  void  for  want  of  record,  §  1246,  p.  739. 

Chattel  mortgages  or  conditional  sales  made  in  state  where  recording 
not  required,  but  contemplating  delivery  where  required,  §  1247,  p. 
739. 

Unrecorded  real  estate  mortgages,  §  1248,  p.  740. 

Unrecorded  sales  of  personalty,  where  property  still  in  seller's  hands, 
§  1249,  p.  740. 

Owner's  lien  on   material    left  on  premises   by   bankrupt   contractor,    § 

1251,  p.  740. 

Equitable  liens   on  property  already  pledged  and  in  pledgee's   hands,   § 

1252,  p.  740. 

Agreement  to  insure  operating  as  equitable  assignment,  §  1253,  p.  740. 
Liens  absolutely  void,  void  also  in  bankruptcy,  §  1254,  p.  741. 
Mechanic's  and  sub-contractor's  liens   not   filed   until   after  bankruptcv, 
§  1255,  p.  741. 


GENERAL  INDEX.  2281 

TITLE  OF  TRUSTEE— Continued. 

Recording,  where  lien  both  on  real  and  personal  property,  §  1256,  p.  741. 
Though  but  one  creditor  in  position  to  object  to  claim,  yet  trustee  m::y 
object,  §  828,  p.  480. 
Trustee  gets  more  than  bankrupt's  title  and  rights,  §  1138,  p.  663. 
When  Vests  in  trustee 

Upon  Appointment,  but  Relates  back  to  adjudication,  §  1116,  p.  638. 
Date  of  Cleavage  of  title,  date  of  adjudication,  §   1117,  p.   639. 
Contractual  Relations  not  dissolved,  §  1118,  p.  639. 

"TONTINE"  POLICIES 

Bankrupt's  Interest  in  passes  to  trustee,  §  972,  p.  545;  §  1006,  p.  559. 

"TOOLS  AND  IMPLEMENTS" 

Exempt,  what  are,  §  1047,  p.  594  n. 

TORTS 

Judgments  for,  provable,  though  torts  themselves  not  provable,  §  680,  p.  413. 
See  "Rights  of  Action — for   Injuries  to  Property.''     Also,   "for   Injuries  to 
Person." 

TORT  CLAIMS 

See  "Claims  Ex  Delicto." 

"TRACING  TRUST  FUNDS" 

See  "Trust   Fund — Tracing  of."' 

"TRADERS" 

Jurisdiction  in  Bankruptcy  Originally  Confined  to,  §  30,  p.  51.     Also,  Introd. 
<j),  p.  11,  (h),  p.  9,  (m),  p.  12. 

TRADERS  AND  TRADING  CORPORATIONS 

Definition  uf  "trading,"'  §  S3,  p.  82. 

Exception  of  Wage   Earners,   Farmers,  etc.,  indicates  adherence  to   original 

idea,  §  46,  p.  60. 
Ice  Company,  when  trading  corporation,  §  91,  p.  87. 
Operating  on  Others  than  Traders  not  Outside  of  Subject,  §  8,  p.  23. 
Definitions  of,  §  83,  p.  82. 

Private  Hospital  is  not  a  trading  corporation,  §  91,  p.  87. 
Stock  brokerage  Corporations,  when  a  trading  corporation,  §  91,  p.  87. 
Subject  to  bankruptcy,  §  91,  p.  87. 

TRADEMARKS 

Pass  to  trustee,  §  958,  p.  536. 

TRADING  CORPORATIONS 

See  "Traders  and  Trading  Corporations." 

TRANSFER 

Definition  of,  §  1330,  p.  779. 

Includes  Pledge,  Mortgage,  Gift,  Security,  etc.,  §  1332,  p.  780. 
Payment  of  money  is,  §  1331,  p.  779. 
Performance  of  Labor  not  a,  §  1333,  p.  781. 
"Voluntary  action  of  debtor  requisite  to,  §  1329,  p.  778. 
When  Consummated  where  recording  "required,"  §  1334,  p.  782. 
Voidable    as    to    Some    creditors    but    not    as    to    others    When    Set    aside, 
whether  Inures  to  Benefit  of  All,  §  1265,  p.  746    n. 


2282  ge;neral  index. 

TRANSFEREE 

See  "Fraudulent  Transferee." 

TRANSFERRING  LIENS  TO  PROCEEDS  OF  SALE 

See  "Sales  in  Bankruptcy — 'Free  from  Liens."  " 

TRANSMITTING 

Duty  of  referee  to  transmit  record,  §  513,  p.  322;  §  2299,  p.  1401. 
Duty  of  referee  to  transmit  to  clerk  papers  on  file,  §  514,  p.  322. 

TRAVELING  SALESMAN 

Entitled   to   priority,    §    2170,   p.    1338. 

TREATING  APPEALS  AS  PETITIONS  FOR  REVISION,  §  2916,  p.  1709; 
§   2917,   p.    1709. 

TRIAL 

Burden   of   Proof   in   prosecuting  bankruptcj-   petition,    on   creditors,    §    172, 

p.  146. 
Conducted  "According  to  Common  Law,"  §  410,  p.  266. 
Court  as  Chancellor  may  Submit  Issue  of  Fact  to  Jury,  for  advice,   §  404, 

p.  263.    ■ 
Demand  for  Jury,  §  411,  p.  266. 
In  General  to  be  by  Court,  §  403,  p.  263. 

Jury  Confined,   where   Demandable,   to   Two   Issues,   §   408,  p.   265. 
Jury   Demandable   by  virtue  of  Statute,   not   Constitution,   §   407,   p.   265. 
Jury's  Verdict,  in  general,  Advisory,  §  405,  p.  263. 
Jury  Trial   Not  Available  to   Intervening  Creditors,   §   409,   p.  265. 
Reference  to  ^Master  where  Jury  Not  Demanded,  §  412,  p.  266. 
Right  to  Jury  Trial  Absolute  on  Issues  of  Insolvency  and  Committing  of 

act,   §    406,  p.   264. 
See  "Special  Master." 
Trial  to  be  "Impartial,"  §  413,  p.  267. 

TRIVIALITIES 

Not   considered   on  review,   §  3010,  p.   1742. 

TRUST  , 

Property   held   by   bankrupt   as   trustee   of  resulting   trust   does   not   pass,   § 

974,    p.    546. 
Property  held  in  trust  for  bankrupt  passes  to  trustee,  §  973,  p.  545. 
See,  also,  "Spendthrift  Trusts." 
Spendthrift  trusts  and  Restrictions  on  Alienation,  whether  property  passes 

to   trustee,    §975,   p.    546. 

•TRUST  FUND,"  DOCTRINE  OF 

Has  No  Application  to  a  "Going"  Corporation,  §  1734,  p.  1067  n. 
Is  Theoretical  Basis  for  Setting  Aside  "Preferences"  and  Nullifying  "Liens 
by  Legal  Proceedings,"  §  1274,  p.  751. 

TRUSTEE  IN   BANKRUPTCY 
Accounts  of 

Duty  of  referee  to  audit,  §  517,  p.  323;   §  2291,  p.  1398. 
Actual    or    Constructive    Possession    by,    constitutes    "Custodia    Legis,"    § 
1807,  p.    1101. 


GENERAI,  INDDX.  2283 

TRUSTEE  IN  BANKRUPTCY— Continued. 
Appeal  and  Error  by,  or  in  Name  of 

Appeal    and    Error    mifst    be    in    Trustee's    Name,    after   his    election,    § 

2827,  p.  1653. 
Appeal  and   Error  when  not  in  trustee's   name,  §  2828,  p.   1655;   §  2829, 
p.   1C55.  • 

Creditor    Authorized    to    Use    trustee's    name    to    appeal,    when,    §    2830, 

p.    1655. 
Creditor  Indemnifying  trustee  in  using  his  name,  §  2831,  p.  1655. 
Refusing  to  appeal,  trustee  may  be  ordered,   §  2830,  p.   1655. 
Bond   on  Appeal   or   Review,  not   required  from,   §   2980,  p.   1732. 
Approval  and  disapproval  of  creditors'  election 

Creditors'  election  subject  to  approval  or  disapproval,   §   879,  p.   502. 

Statutory    qualifications    of   trustee,    §    879,   p.    502. 

Question   of   collusion   to   be   definitely   disposed   of   before   approval    of 

election,  §  893,  p.  509. 
When  referee  disapproves,   order  of  disapproval  to  be  entered   and  op- 
portunity for  review  to  be  given,  §  894,  p.  510. 
Upon  final  disapproval,  another  election  requisite,  and  referee  not  to  ap- 
point without,  §  895,  p.  510. 
Neither   residence    nor   citizenship   requisite,   if   office   in   district,   §    880, 

p.   503. 
Corporations    competent,    §    881,    p.    503. 

Creditors'  choice  not  to  be  lightly  interfered  with,  §  882,  p.  503. 
Creditor  may  be  Candidate,  §  883,  p.  504. 

Hostility   toward   bankrupt   no   disqualification,    §   884,    p.    504. 
Solicitation   of   office   no   disqualification,   §   885,   p.    504. 
Solicitation  of  claims  not  illegal,  §  885,  p.  504. 
Undischarged   bankrupt   incompetent,    §    886,    p.    504. 

Trustee   elected  in  bankrupt's   own   interest  incompetent,   §   887,   p.   505. 
Votes   cast  by  relatives,   §  888,  p.   508. 
Prior  assignee  or  receiver  as  candidate,  §  889,  p.  508. 
Creditor    with    disputed    claim    incompetent,    §    890,    p.    509. 
Candidate    interested    in    scheme    of    composition    incompetent,    §    891, 

p.    509. 
Votes  cast  for  disqualified  candidate  not  nullities,  §  892,  p.  509. 
Attorney  for,  not  to  act  as  Claimant's  attorney,  §  851,  p.  490. 
Attorney's  Fees  for  himself  where  trustee  is  also  attorney,  §  2059,  p.  1280. 
Befofe  Election   of.  Appeal   or   Error   may  be  by  Creditor,   §  2833,  p.   1556. 
Bills  of  Sale  of,  §  1998,  p.  1236.     See,  also,  "Forms." 
Commissions  of,  see  "Fees  of." 

Commissions  of,  on   Sales   Free  from   Liens,   §   1996,   p.   1236. 
Deeds    of,    §    1998,    p.    1236. 
Duties  and  Powers  of 

May   plead    bankrupt's    lack    of   capacity,    §    1204,    p.    698. 

May  sue   State   court   officer   for   money  had  and  received,   where   lien 

by  legal  proceeding  nullified  by  bankruptcy,  §   1476,  p.   878. 
Subrogation  of  to  creditor's  lien  in  pending  suit  where  lien  preserved, 

§    1639,   p.    1010. 
Substitution  of  trustee  for  bankrupt  in  pending  suit,  §   1640,  p.   1011. 
Where    not    substituted   in   pending   suit   bankrupt   may   continue   pros- 
ecution, §   1044,-  p.  1011. 
Alay  interpose  Statute  of  limitations,   §   1193,  p.   696. 


2284  GENERAI,  l^iDEX. 

TRUSTEE  IN  BANKRUPTCY— Continued. 

May  urge  statute  of  frauds,   §   1194,  p.   696. 

May   plead   illegality,    §    1195,   p.    696. 

May  plead  usury,  §   1196,  p.   696. 

May  recover  property  misapplied  to  agent's  private  debt,  §  119S,  p.  697. 
«  May    defend    that    chattel    mortgage    does    not    cover    specific    after-ac- 

quired  property,    etc.,    §    1199,   p.    697. 

May  plead  waiver,   §   1201,  p.   698. 

May  plead   payment,    §   1202,   p.   698. 

May   plead   accord   and    satisfaction,    §    1202,   p.    698. 

Statutory   duties   and   those   not   statutory,    §   905,   p.    518. 

Trustee    to   account   for   interest,    §   906,    p.    518. 

To  collect  assets  and  reduce  them  to  money,  §  907,  p.  518;  §  899,  p.  515. 

To    close   estate   expeditiously,   §   908,   p.    519. 

To   deposit   money   in   depositor)^,   §   909,   p.   519. 

Failure  to  so  deposit — bond  liable  on  loss,  §  910,  p.  519. 

To  disburse  only  on   order   of  court,   §   911,   p.   519. 

May  institute  suits  against  debtors  to  recover  money  judgments,  § 
1724,  p.   1062. 

May  institute  suits  for  the  recovery  of  property,   §   1720,  p.   1061. 

May  sue   in   State  court,   §   1721,   p.   1061. 

May  sue  in  bankruptcy  court,  for  recovery  of  property  transferred  by 
bankrupt,    §    1023,   p.    1062. 

May  sue  without  first  obtaining  leave,  §   1722,  p.   1061. 

May  file  petition  to  sell,  §  1941,  p.   1311. 

Cannot  perfect  priority   claims   of   creditors,   §   2201,   p.    1353. 

May  not  oppose   confirmation   of  composition,   §   2375,  p.   1438. 

To  Respond  where  bankrupt  was  Garnishee,  §  1787,  p.  1082;  §  2227, 
p.   1363;   §   1646,   p.   1013.  ^ 

None  to  oppose  bankrupt's  discharge,   §   2458,  p.   1488. 

Disbursements  by  to  be  by  check,  countersigned,  §  912,  p.  520. 

Depository  liable  for  payment  of  improperly  drawn  orders,  §  913, 
p.    520. 

Trustef:   to   furnish   information,   §   914,   p.   520. 

His    accounts    and    papers    open    to   inspection,    §   915,    p.    520. 

Trustee  to  keep  accounts,  §  916,  p.  521. 

To  file  reports,  §  917,  p.  521. 

To  pay  dividends  within  ten  days,  §  918,  p.   522. 

To  set  apart  exempted  property,  §  919,  p.  522;  §  1073,  p.  611. 

Where  real  estate,  trustee  to  file  certificate  with  recorder,  §  920,  p.  522. 

Entitled  to  possession  of  exempt  property  long  enough  to  set  it 
apart,   §   1027,   p.   577. 

May   institute    proceedings    in    another    district,    §    1709,    p.    1055. 

May  maintain  other  suits  than  to  recover  fraudulently  or  preferen- 
tially transferred  property,  §  1710,  p.  1056;  §  1090,  p.  1041;  §  1694, 
p.  1043. 

Whether   may   maintain   partition   proceedings,   §   1711,   p.    1056. 

Trustee  to   deliver   to  referee   claims   filed  with   him,   §   921,   p.   522. 

May    submit    controversies    to    arbitration,    §    922,    p.    522. 

May  compromise   controversies,   §   926,  p.   523. 

May  abandon  worthless  or  burdensome  assets,  §  932,  p.  524. 

May   redeem   property  from   liens,   §   937,   p.    525;    §    1197,   p.    697. 

May  sell  subject  to  liens,  §  938,  p.  525. 


GENERAI,  INDEX.  2285 

TRUSTEE  IN  BANKRUPTCY— Continued. 

May   sell    free   from   liens,    §   939,   p.    525. 

]\Iay  sell  free  from  some  liens,   subject  to  others,   §  940,  p.  525. 

Alay  replevy,  where  lien   by  legal   proceedings   nullified   by  bankruptcy, 
§    1475,   p.   878. 
Election  cf 

No   majority,   court  to  appoint,   §   869,  p.   497. 

Court  also   may  appoint  where   creditors   fail   altogether   to  act,    §   870, 
p.  498. 

Dispensing   with    trustee   where   no   assets    and   no   creditors   present,    § 
871,    p.    498. 

If   assets   shown,   trustee   to   be   appointed   though   no   creditor   appears, 
§   872,   p.    499. 

Trustee  elected  not  compelled  to  act,  §  873,  p.  499. 

Either  one  trustee  or  three  to  be  elected,  not  merely  two,  §  874,  p.  500. 

On   reopening   estate,   new   election   requisite,   §   2314,   p.   1404. 

Expense    of   contesting   claims    to   control,   not    chargeable   against    es- 
tate,  §   823,   p.   477. 

At  first  meeting,  §  862,  p.   496. 

Election    may   be   postponed,    §    863,   p.    496. 

Allowance   of   claims   may   be   postponed,   §   864,   p.   496. 

No  "provisional"  allowance  for  voting  purposes,  §   865,  p.   496. 

Onlj'    partnership    creditors    to    vote    in    partnership    bankruptcies,    § 
866,    p.    497;    §    2233,'  p.    1366. 

Individual   creditors   to   vote   in   individual   bankruptcies,   §   867,   p.    497. 

Majority  in   number   and   amount   present,   whose   claims   allowed,   req- 
uisite, §  868,  p.  497. 

Referee  may  disapprove,  §  547,  p.  333. 

Whether   number   may  be   subsequently   increased,   §   875,   p.    500. 

Concurrence   of  two  requisite  where  three  appointed,   §   976,   p.   500. 

Qualifying   of   trustees,    §   877,   p.    500. 

Expenses  of,  §  2033,  p.  1261. 

Rent  for  use  and  occupation,  §  985,  p.  549;  §  2034,  p.  1261. 

Computing  rent  of,  at  lease  rate,  §  2035,  p.  1262. 

In  Conducting  business,  §  2036,  p.  1262. 

.■\uctioneer,   §   2037,   p.   1263. 

Premium  on  bond,  §  2038,  p.  1263. 

Not  necessary  to  pay  exepenses  out  of  pocket  first,  and  then  to  be  al- 
lowed reimbursement,  §  2039,  p.  1263. 

Costs  and  expenses  of  litigation,  §  2040,  p.  1264. 

Attorneys'  fees  of,  §  2041,  p.  1264. 

See  "Attorneys'  Fees  in  Bankruptcy." 
Fees  bf,  §  2108,  p.  1301. 

Commissions  of,  computed  on  disbursements  for  expenses,  as  well  as  on 
disbursements  to  creditprs,  §  2109,  p.  1301. 

In  composition  cases,  how  computed,  §  2110,  p.  1302. 

Whether  "disbursement"  includes  proceeds  of  propertj'  and  trust  fundo 
surrendered  to  adverse  claimants,  and  exempt  property  sold  by  trus- 
tee, §  2111,  p.   1302. 

Entitled  even  where  outside  agreement  to  "credit"  exists  and  actual 
money  does  not  pass,  §  2112,  p.  1302. 

No  absolute  right  to  full  commissions,  less  may  be  allowed  or  all  al- 
lowance witlihcld,  §  2113,  p.  1303. 


2286  GENERAL  INDEX. 

TRUSTEE  IN  BANKRUPTCY— Continued. 

Apportionment,    where    three    trustees    or    successive    trustees,    §    2114, 

p.  1303. 
Extra  compensation  for  conducting  business,  §  2115,  p.  1303. 
Not  to  exceed  rate  for  trustee's  ordinary  service,  §  2116,  p.  1304. 
No   additional   compensation  allowable   "in. any  form   or   guise,"   §  2117, 

p.  1305. 
Review    of   controversy   about,    trustee    does    not    represent   creditors,    § 
2828,   p.    1655. 
May   ask   for    General    Examination   of   Bankrupts   or   Witnesses,   §   1529,   p. 

914. 
May  Occupy  Premises  free,  for  any  period  for  which  landlord  holds  prov- 
able claim,  §  992,  p.   552. 
Not  Bound  to  Accept  Lease  as  assets,  §  982,  p.  548. 
Not  Subrogated  to  Liens  on  Exempt  property  paid  ofT  on  eve  of  bankruptcy, 

§  2283,  p.   1396. 
Objections  to  Claims  by,  or  in  Name  of 

After  trustee  elected  all  objections  to  be  by  him  or  in  his  name,  §  824, 

p.  477. 
Creditor  proceeding  should  Use  Trustee's  Name,  §   827,  p.   479. 
Refusing  to  object  to  a  claim,  trustee  may  be  ordered,  §  826,  p.  479. 
Refusing  to  object,   Creditor  or  Bankrupt  may  proceed,  §  826,  p.  479. 
Though   But   One   Creditor  in  position   to   object   to  claim,  yet  trustee 
may  object,  §  828,  p.  480. 
In  Partnership  Bankruptcies  is  trustee  also  of  individual   estates,  §   2233,  p. 

1366. 
Pleadings  and  Practice  in  actions  by,  see  "Pleadings  and  Practice— In  Plen- 
ary Actions  by  Trustee." 
Possession  by,  gives  Jurisdiction  to   Bankruptcy  Court,  §   1796,  p.   1089. 
Presumed  to  represent  creditors,  where  he  engages  in  litigation,  §  1736,  p. 
1068. 

Relation  of  to  creditors  and  court 

Not  to  be  dictated  to  by  creditors,  §  898,  p.  513. 

Approval    of   court   before   starting   litigation,    not    necessary,    §    899,    p. 

515. 
Except  where  substituted  in  pending  suit,  §  899,  p.  515. 
Creditors  not  to  elect  supervising  committee,  §  900,  p.  516. 
Creditors  not  to  elect  attorney  for  trustee,   §  901,  p.   516. 
Trustee    not   to    employ-  counsel    representing   adverse    interests,    §    902 

p.  516. 
Liable  for  his  attorney's  misfeasance,  §  903,  p.  517. 
Trustee    within    summary    jurisdiction    of    bankruptcy    court,    §    904,    p. 

518. 
Occupies  dual  relation — Official  custodian  for  all,   also  party  litigant,   § 

896,   p.    511;   §    1032,  p.   584. 
Occupies   fiduciary  relation,  §   897,  p.   513. 
Represents  all  creditors,  §  897,  p.  513. 
Should  not  be  interested  in  any  scheme  of   composition,   §   897,  p.   513. 

Removal  and  Death  of 

Creditors  to  elect  new  trustee  on  reopening  of  estate,  §  949,  p.  526. 
Bankruptcy  court  has   power  to   remove   trustee,   §  941,  p.   525. 
Judge  alone  may  remove,  §  942,  p.   525. 


GENERAL  INDEX.  2287 

TRUSTEE  IN  BANKRUPTCY— Continued. 

Good  cause  to  be  shown,  §  943,  p.  525. 
Notice  and  due  hearing  reqtiisite,   §  944,  p.   525. 
Hearing  should  be  on  petition,  §  945,  p.  526. 

Referee  to  report   derelict  trustee   for  removal,   though   no   creditor  pe- 
titions, §  946,  p.  526. 
Death  or  removal  of  trustees  does  not  abate  pending  suits,  §  947,  p.  526. 
Creditors  to  elect  new  trustee  on  death,  removal,  etc.,  §  946,  p.  526. 
Rent,  whether  bound  to  pay  rent  Stipulated  in  lease  or  only  for  "Use  and 

Occupation,"  §  985,  p.  549;  §  2034,  p.  1261. 
Right    of,   to    Occupy    Premises    of   bankrupt    for   reasonable    period,    §    984, 

p.   549. 
Stenographer  employed  upon  application   of,  §   1579,  p.   945. 
Suits  against 

Enjoining  suits  in  personam  against,  §  1781,  p.  1080;  §   1782,  p.   1080;  § 

1911,  p.  1192. 
Execution  against,  §   1785,  p.   1081. 

Made   Party  where  State   court  has   custody  of  res,   §   1779,   p.   1079. 
Need  not  be  Sued  in  Official  Capacity,  but  merely  as  individual,  §  1784, 

p.  1081. 
Orders  by  bankruptcy  courts  to  Pay  Judgments  Against  out  of  Funds 

of  Estate,  §  1786,  p.  1081. 
Plenarj'-   Suits   by  third   parties   against,   §   1778,   p.   1079. 
Sued  in  personam  for  conversion   or  wrongful  seizure,   §   1780,  p.   1079; 

§   1814,   p.   1112;    §   1911,   p.   1192. 
Mortgagee     suing,     in    personam,     for    Conversion,    Avhere     Mortgaged 

Property  Sold  Without  Notice,  §  1814,  p.  1113. 
None   by   Dissatisfied   Litigant   attempting  indirectly   to    obtain    Review 
of  Referee's  Orders  thereby,  §   1788,  p.  1082. 
Suits  by,  or  in  Name  of 

Refusing  to  sue.  Creditors  may  Sue  in  Trustee's  Name,  §  1719,  p.  1061. 
Time  to  Accept  or  Reject  Lease,  trustee  is  entitled  to,  §  983,  p.  549. 
To  Keep  Separate  accounts  of  fii;m  and  individual  estates,  §  2234,  p.  1367. 

TRUSTEES  IN  POSSESSION 

Under  Mortgage  for  Benefit  of  Creditors  are  "Adverse   Claimants,"  §   1668, 

p.  1032. 
Of  "Spendthrift  Trusts,"   are  "Adverse  claimants,"   §   1672,   p.   1032. 

TRUSTEE'S  TITLE  AND  RIGHT  TO  ASSETS 

See  "Title  of  Trustee." 

TRUSTEESHIP  AS  ACT  OF  BANKRUPTCY 

"Appointment"    of   trustee   not   necessarily   to   be   made   b}'   Court,   §    160,   p. 

.138. 
See    "Receiverships    and    Trusteeships — As    Acts    of    Bankruptcy." 

"TRUST  FUNDS" 
Tracing  of 

Commingling  of,   §    1884,   p.   1173. 

Costs  and  Expenses  on  tracing,  §  1884,  p.  1176  n. 

Laches  Barring  Right  to  trace,  §  1884,  p.  1176  n. 

Remand  for  further  proof  as   to   identity   of  proceeds   on  tracing,   of,   § 

1884,  p.   1177  n. 
Right  to  trace,  §  1883,  p.  1169. 
Trustee  "Stands  in  Bankrupt's  Shoes"  in  Tracing,  §  1884,  p.  1177. 


2288  GENERAIv  INDEX. 

ULTRA  VIRES  CLAIMS 

Allowability  of,  §  802,  p.  468. 

UNCOMPLETED   BUILDING  CONTRACTS,  §   688,  p.  417. 

UNDERVALUING  OF  ASSETS 

Whether   "Concealment"   of  Assets,   §   2495,   p.    1505. 

UNDISCHARGED  BANKRUPT 

Incompetent   as   Candidate   for  Trustee,   §   886,  p.   504. 

"UNIFORM    CONSTRUCTION    OF   ACT" 

Ground   for   appeal   to   Supreme    Court,   §    3015,   p.   1745. 

UNIFORMITY 

Constitutional     Requirement    as     to    Uniformity     Throughout     the     United 

States,  §   2,  p.   1. 
Distinctions  between  Persons  not  Lack  of,  §  4,  p.  1. 
Recognition  of  Diverse   Exemption  Laws  and  Priority  Laws  not  Lack  of, 

§  5,  p.  22;  §  1023,  p.  571. 
State  Law  Governing,  not  Lack  of,  §   6,  p.  22. 
Uniformity    Geographical,   not   Personal,   §   3,   p.   1. 

UNINCORPORATED    COMPANIES 

Definition  of,  §  78,  p.  79. 

May  be  adjudged  bankrupt,  §  77,  p.  78. 

UNLIQUIDATED  CLAIMS 

After  Expiration  of  year,  may  be  liquidated,  if  filed  within  year,  §  722,  p. 
436. 

Bankruptcy   court   itself   may    Liquidate,   §    713,    p.    428. 

Capable    of    Liquidation    but    Not    Liquidated,    nevertheless    Discharged,    § 
732,  p.  439. 

Claim  may  be  "Provable"  though  "Unliquidated,"  §  704,  p.  423. 

Classes  of  "provable"  debts  not  enlarged  by  Provision  for  Liquidation  of, 
§'705,  p.  424. 

Contingent  Claims  not  to  be  liquidated  and  proved,  under  §   63    (b),   §   711, 
p.  427. 

Damages   on    Contract   accruing  after   bankruptcy,   §    707,   p.   425. 

Discharged,   if   capable,   on  liquidation,   of  being  presented  ex   contractu,   § 
2734,  J).  1613. 
.     Liquidated    by    Litigation    within    30    days    before    or    after    expiration    of 
year,  §  717,  p.  429. 

Liquidation  by   Litigation,   §  714,   p.   428. 

Liquidation  of  claims   Ex  Delicto  not  authorized  unless  presentable   as   on 
contract,  §  710,  p.  427. 

Manner  of  Liquidation,  §  712,  p.  428. 

Only   Contract   claims   and  Tort   claims   capable    of  presentation   as    if   im- 
plied   contracts,    Liquidatable,    §    706,    p.    425. 

Original  Proof  not  necessarily  formal,  §  715,  p.  428. 

Recovery   of   Preference   by   Trustee,   whether   to   be    considered   "Liquida- 
tion" of  preferred  creditor's  claim  by  "Litigation,"  §  716,  p.  429. 

Stockholders'   Liability,   liquidation  of,   §   709,  p.   426. 

Sufficient   for   Opposition   to   Discharge,   §   2460,   p.   1488. 

Sufficient  for  Petitioning  Creditors'  claims,  if  "Provable,"  §  232,  p.  180. 


GENERAL  INDEX.  2289 

"UNPAID  PURCHASE  PRICE" 

Exemptions  out  of  proceeds  in  cases  of  "sales  of  merchandise  in  bulk,"" 
whether  Bankrupt  entitled  to  until  creditors  paid,  §  1036,  p.   590. 

Partnership  Share,  unpaid  Purchase  Price  of,  not  to  share  on  equality  with 
partnership   creditors,  §   2262,   p.   1385;   §  2273,   p.   1391. 

Property  not  Exempt  as  to,  §  1035,  p.  587. 

UNPAID  STOCK  SUBSCRIPTION 

"Provable"   though   "Unliquidated,"'  §   709,   p.   427. 
Bankruptcy  court  may  make   "Call,"   §  977,  p.   547. 
Claim    for,    sufficient    for    Petitioning   Creditor,    §    235,    p.    183    n. 
Claims  against  bankrupt  Stockholder  for.  Valid,  §  805,  p.  470. 
Pass  to  Trustee  of  Bankrupt   Corporation,  §  976,  p.   547. 
Pending   Suit   for,   trustee   to   prosecute,   §   1644,   p.    1012. 

Statutory   Secondary   liability   of   stockholders,   not   an   asset,   §   978,   p.    54&. 
See  "Stockholder's  Liability." 

Stockholding  creditor  may  not  offset  claim  against,  §  1185,  p.  693.  SeCv 
also,  "Set-Off  and  Counterclaim,"  "Stockholder."" 

UNRECORDED  LIENS 

See  "Chattel  ^Mortgages,  Unfiled." 
'See  "Conditional   Sales  Contract — -Unfiled." 
See  "Possession — Taking  of." 
See  "Recording." 
See  "Trustee's  Title  and  Right  as  Successor  to  Creditors'  Title." 

UNSCHEDULED  PROPERTY 

Belonging  to  estate,  passes  to  trustee,  §  996,  p.  555. 

Rights  of  Action,  unscheduled,  bankrupt  does  not  retain  title  to,  §  1019,  p. 
568  n. 

"USE  AND  OCCUPATION" 

See  "Leasehold." 

Rent  for,  after  filing  of  petition  and  before  adjudication,  recoverable  at 
Stipulated  Rate,  §   667,   p.  406. 

See,  also,  "Rent." 

See,  also,  "Trustee  in  Bankruptcy — Expenses  of." 

Whether  trustee  bound  to  pay  Rent  Stipulated,  or  only  for  "Use  and  Oc- 
cupation." §  985,  p.   549;  §  2034,  p.  1261;  §  2035,  p.  1262. 

USING  TRUSTEE'S  NAME 
See  "Trustee  in  Bankruptcy." 
See  "Objections  to  Claim,  Who  ]\Liy  Object." 
See  "Creditors." 

When  trustee  refuses  to  Appeal,  §  2830,  p.  1655. 
When  Trustee   Refuses  to   Object  to   Claim,  §   827,  p.   479. 
When  Trustee  Refuses  to  Sue.  §  1719,  p.  1061. 

"USUAL  COURSE  OF  BUSINESS" 

Transactions  out  of,  tend  to  Xegative   Good  Faith,  §   1496,  p.  893. 

USURY 

Allowability  of  Claims  tainted  with,  §  803,  p.  469. 
Trustee  may  plead,  §  1196,  p.  696. 
Lien   tainted   with,   §   1885,   p.    1179    n. 

2  Rem  B— 69 


2290  GENERAL  INDEX. 

VACATING   OF   ADJUDICATION 

See   "Adjudication — Vacating  of." 

Jurisdiction,  §  429,  p.  275. 

Referee   may   not  vacate   adjudication,   §    546,   p.   333. 

VACATING   OF  ALLOWANCE 

After   Expiration   of   Current   Term,   §   858,  p.   491. 

VACATING 

Of   Discharge 

By  court,  Sua  sponte,  and  not  on  merits,  §  2811,  p.  1645;  §  2818,  p.  1649. 
For  Irregularities  not  going  to  merits,  §   2811,  p.  1645;   §  2818,  p.  1649. 

Of  Judgment 

Rendered  after  Discharge,   None  for   purpose   of  Interposition   of  Dis- 
charge, §  2708,  p.  1604. 
Of  Preference  by  Legal  Proceedings,  in  third  act  of  bankruptcy,  §   142,  p. 
124.     See,   also,   "Acts   of   Bankruptcy,   Preference   by   Legal   Proceedings 
not  Vacated." 

VACATION 

Appeals  may  be  heard  in,  §  2982,  p.  1733. 

"VALIDITY" 

Different   from   "Provability,"    §    630,   p.    374. 

Of  Petitioning  Creditor's  Claim  may  be  disputed,  §  235,  p.  183. 

VALIDITY   OF  CLAIMS 

Creditors  and  trustee  bound  by  bankrupt's  contracts  and  acts,  §  783,  p.  462. 
Determined  in  general   by   State   law,  §   780,   p.   461. 

Trustee    entitled    to    all    objections    bankrupt    might    have    urged,    but    not 
limited  to  such,   §  782,  p.  461. 

VALUE  OF  SECURITIES 

Determination    of,    see    "Determination    of   Value    of    Securities." 

VARIANCE 

Between   Claim  and  Proof,   §   850,  p.  489. 

VERIFICATION 

All  Pleadings   of  Fact  to  be  verified,  §   26,   p.  41   n. 

Of  Exceptions  to  Trustee's  Report  of  Exempted  Property 

Waivable,   §   1084,   p.   614. 
Whether  necessary,  §   1084,  p.  614. 

Of  Involuntary  Petition 

Amendment   of  Verification  permitted,   §   280,   p.   204. 
'Each   petitioner    to   verify,   §    281,    p.    204. 
Form  of  oath,  §  278,  p.  203. 

Involuntary    petition    must    be    verified,    §    276,    p.    202. 
Verification  by  attorney,  §  277,  p.  202. 
Waiver  of  objections  to  verification,  §  282,  p.  204. 

Of  Petition  for  Discharge 

Whether  requisite,  §   2430,  p.  1468. 


GENERAL  INDEX.  2291 

VERIFICATION— Continued. 
Of  Petition  for  Injunction 
Requisite,  §  1920,  p.  1196. 

Attornej-  maj-  verify,  §  369,  p.  245;  §  1920,  p.  119G. 
Of  Petition  to  set  aside  composition 
Requisite,  §   2406,  p.   1453. 
By  Agent,  §  2406,  p.  1453. 
Of  Proofs  of  Claims 

By  Agent,  §   614,  p.   364. 

Defective  verification  cured  by  amendment,   §  614,  p.   364. 
May  be  made  before?  Claimant's  Attornej-,  §  614,  p.  365. 
Verification  requisite,  §  614,  p.  364. 
Of  Schedules 

.Requisite.    §    487,    p.    311. 
Of  Specifications  in  Opposition  to  Discharge,  §  2584,  p.   1549. 

See,    also,   "Discharge — Opposition    to — Specifications — Verification    and 
Signature." 
Of  Voluntary  Petition 

Failure   to   file  petition   and   schedules   at   time   of  verification,   §   282,  p. 

204  n. 
^lay   be    before   Notary   public    who   thereafter    Becomes    Attorney    for 

bankrupt,  §  194,  p.  159. 
Voluntary   Petition   must   be   verified,    §    194,   p.    159. 

VESTED  INTERESTS 

Pass   to   trustee,   §   9T2,   p.   544. 

VESTED  RIGHTS 

Disturbing  of,  may  bar  vacating  of  adjudication,  §  443,  p.  283. 

Not  divested  by  §  67  (f)  nullifying  liens  by  legal  proceedings,  §  1465,  p.  871. 

VESTING  OF  TITLE 

See  "Title  of  Trustee— How  Title  Vests." 
See  "Title  of  Trustee— When  Title  Vests." 
See   "Title    of  Trustee— What   Title   Trustee    Gets." 

VOIDABLE  PREFERENCE 

See  "Preference." 

VOLUNTARY    APPEARANCE 

Of  Bankrupt,  and   Consent  to  Adjudication,  §   314,  p.   221. 

VOLUNTARY  BANKRUPT 

Corporation   'Sla.y  not   Be,  §   44,  p.   58. 

Debts  Must  be  "Provable,"  §  41,  p.  57. 

Insolvency  not  Requisite,  §  42,  p.  57;   §  193,  p.  159. 

Mere  Joint  Contractors  nor  Joint  Owners,   not  joinable  in  one  petition,  § 

40,  p.  56. 
May  move  to  Vacate  his  own  Adjudication,  §  438,  p.  281. 
Must  Owe  Debt,  §  41,  p.  57. 

No   Specified  amount  of  Indebtedness   Requisite,   §  41,   p.   57. 
Partnerships  included,  §  39,  p.  56. 


2292  GENERAL  INDEX. 

VOLUNTARY  BANKRUPT— Continued. 

Voluntary  partnership   petition,   no  adjudication  where  nonconsenting  part- 
ner not  made  party,  §  68,  p.  73. 
Who  may  become,  §  37,  p.  55. 
After  adjudication,   voluntary   and   involuntar}^   proceedings   alike   except   as 

to  time  of  filing  schedules,  §  476,  p.  308. 
Individual  Partners  Joinable  with  Partnership   in  Voluntary  bankruptcy,   § 

64,  p.  69. 
Later  Development  of  the   Law,   §  38,  p.   56. 

Xo   act  of  bankruptcy  requisite  in,  §   102,  p.   102;   §   192,  p.   159. 
Xullification    of   Liens   by   Legal    Proceedings,   under    §    67    (f),   applies    to, 

§  1464,  p.   871. 
None  Originally,  Introd.   (j),   p.   11;   Introd.    (k),  p.   12;   Introd.    (1),   p.   13. 
Petition  in,  see  "Petition  in  Voluntary  Bankruptcy." 
Also,  see  "Voluntary  Petition.", 
Petition    by    One    Partner    where    remaining   partners    do    not    join    treated 

as  Voluntary  as  to  Creditors,  •§  72,  p.  74. 
Voluntary  Bankruptcies  not  Outside  of  Subject,  §  9,  p.   25. 
Voluntary  petition  itself  Act  of  Bankruptc}',  §  73,  p.  77;  §  102,  p.  102;  §  164, 

p.   139;   §    192,   p.    159. 
"Written  Admissions"   of  corporations  not   contrary  to  prohibition   against 

corporations  becoming  Voluntary  bankrupts,  §  168,  p.  142. 

VOLUNTARY   PETITION 

Adjudication  on  to  be  "Forthwith, "'•§  195,  p.  159;  §  473,  p.  273. 
Creditors  May  not  Intervene  to  Oppose,  §  43,  p.  57;  §  195,  p.  159. 
Creditors  may  not  Oppose  even  in  Partnership   Cases,  §  43,  p.   58. 
Dismissed   for  want  of  Jurisdiction,   §   414,  p.   268. 
Form  of,  §  190,  p.  157  n. 

Insolvency   need   not   be   averred,   §   193,   p.   159. 
May  be  Dismissed  by  Court  of  its  own  motion.  §  196,  p.  160. 
No  Act  of  bankruptcy  requisite,  other  than  debts  unable  to  pay  and  prayer 
for  adjudication,  §  192,  p.  159. 

Points  of  difference  between  involuntary  and,   §  190,  p.   157. 

Involuntar}^  petition   to  be   in   duplicate,   §    190,   p.   157. 

Schedules   filed  with   voluntary  petition,   but   within   ten   days    after   ad- 
judication, in  involuntary,  §  190,  p.  157. 
Residence  and  existance  of  Debt  must  appear  in,  §  191,  p.  158. 
Signature   and  Verification,   §   194.  p.   159. 

VOLUNTARY  SURRENDER  OF  CUSTODY  BY  BANKRUPTCY  COURT, 
§   1657,  p.   1029. 

Person    obtaining    possession    from    trustee     is     "Adverse     Claimant,"     not 

subject  to  summary  jurisdiction,   §  1657,  p.   1029;  §   1803,  p.   1100. 
But  subject  to  plenary  jurisdiction,  §  1690,  p.  1041  n. 
How,  where  person  obtains  possession  from  receiver,   §   1801,  p.   1099. 

VOLUNTARY  SURRENDER  OF  CUSTODY  BY  STATE  COURT,  §  163S, 
p.   1010. 

VOLUNTEER 

Not  entitled  to  Subrogation,  §  2282,  p.  1396. 


GKXERAL  IXDEX.  2293 

VOTES 

For  Trustee   cast  by   Relatives,   §   888,  p.   508. 

Cast  for  Disqualified  Candidate  for  trustee  are  not  Xullities,  §  892,  p.  509. 

VOTING 

At  Meeting  of  Creditors,  §  572,  p.  347. 

By   Creditors  not   Conclusive,  but   advisory  merely,  §  929,  p.   523. 

Creditor  holding  Lien  by  Legal  Proceedings   Xullified  by  §  67   (f)    Not  to 

Vote  until   Lien  Surrendered,  §  579,  p.  349. 
Creditors  not  present  not  to  vote,   §  582,  p.  350. 
Creditors   whose  claims   Not  Allowed,  not  to  vote,   §   575,  p.   348. 
Individual   creditors   to   vote    for   trustee    in   individual   bankruptcies,    §    867. 

p.  497. 
Majority    Required,    majority    both    in    Number    and    Amount    of    Allowed 

claims  Present,  §  581,  p.  350;  §  868,  p.  497. 
No    "Provisional"    allowance    of    claims    for    purpose    of,    §    812,    p.    472;    § 

865,  p.  496. 
Only   Creditors  to  vote,   §   573,   p.   348. 
Only    Partnership    Creditors    to    vote    in    Partnership    Bankruptcies,    §    866, 

p.   497. 
Powers   of  attorney   for   Corporations   and   Partnerships   to   contain   oath   of 

official  capacity,  §  587,  p.  353. 
Preferred    Creditors   not   to   vote   until    Surrender   of   Preferences,   §   578,   p. 

349. 
Priority   Creditors   to  vote   only  for   Deficit,   §   576,   p.   349. 
Preliminary    Estimate    of    Securities,    etc.,    for    Voting    Purposes,    §    577,    p. 

349;   §  763,  p.  454. 
See,  also,  "Deduction  of  Securities." 

Secured  Creditors  to  vote  only  for  Deficit,   §  576,  p.  349. 
Several    claims    Assigned   to    One    person,   but    One   Vote,    §    574,   p.    348;    § 

739,  p.  441. 
Written  Power  of  Attorney  requisite   to  vote,  §   584,  p.   351. 

WAGE  EARNER 

Defined,   §   47,   p.   60. 

Exception  of,  as  affecting  "Subject  of  Bankruptcies,"  §  30,  p.  51. 

Exception   of,   Not   Mere   Matter   of   Defense,   §   244,   p.    187. 

Excluded  frorn  Operation   of  Involuntary   Bankruptcy,   §   46,   p.   59. 

Incidentally  in  Non-Exempt   Business,   nevertheless  exempt,   §   49,  p.   61. 

Involuntary  Petition  to  Negative   Exception  as  to,   §  243,  p.   186. 

Limitation  as  to  Wage  Earner,  etc.,  is  jurisdictional,  §  30,  p.  46. 

Negativing  of  Exception  of,  not  necessarily  to  be  by  Direct  Denial,   §  245, 

p.   188. 
Nnnbankrupt  Partner  a  Wage  Earner,  yet  his  estate  is  brought  in,  §  65,  p.  72. 

WAGES 

Assignee  of  Bankrupt's  wages  is  an  "Adverse  Claimant,"  §  1678,  p.  1034. 

Employer  also  "Adverse  Claimant,"  §  1679,  p.  1034;  §  1683,  p.  1035. 
To  be  Earned  in  the  future  by  Bankrupt,  see  "Assignment  of.  Wages  to  be 

Earned  in  Future." 
Priority   of,  Not   Lost   by   Taking  Judgment   or   Note,   nor  by  Assignment 
of  Claim,  §  2135,  p.  1317. 


2294  GENERAI,  INDEX. 

WAGES— Continued. 

Of  Workmen,  Clerks  and  Servants 

Assignment  of  Claim  does  Not  Destroy  Priority,  §  2183,  p.  1342. 
Correlative   obligation   to   Serve  implied,   §   2177,   p.   1341. 
Damages   for  Breach   of   Contract   of  Employment  not  entitled   to  pri- 
ority, §   2166,  p.   1335. 
Definition  of  "Wage  Earner"  in  §  1  and  §  4  not  criterion  here,  §  2171^ 

p.  1338. 
Employment    by    Several    tends    to    show    Independent    Contractor,    §: 

2174,  p.  1339. 
Exclusive  employment  by  one  person  not  requisite,  §  2173,  p.  1339. 
Not  to  Exceed  "Three  Hundred  Dollars,"  §  2180,  p.  1342. 

Perhaps   for  more   if  priority   claimed   not   under   §   64    (b)    (4),   but 
under  §  64  (b),  (5),  §  2181,  p.  1342. 
Idea  of  Subordination  implied,  §  2176,  p.  1340. 
Independent  Contractors  not  entitled  to  priority,  §  2172,  p.  1338. 
"Piece  Workers"  entitled,  §  2175,  p.  1340. 
No  Precedence  to,  over  Valid  Prior  Liens,  §  2186,  p.  1344. 
Priority  of,  §  2164,  p.  1335;  §   2167,  p.   1336. 

"Proof  requisite  of  priority  claims  for  wages,  §   2185,  p.   1344. 
Relationship  between   parties   governs,   and   not  solely   kind   of  work,    § 

2168,  p.   1336. 
Reducing   claim    to   judgment,    not    such    merger   as    to    lose    prioritj^,    § 

2182,    p.    1342. 
Subrogation  of  persons  advancing  money  to  meet  Pay  Rolls,  §  2184,  p. 

1344;  §   2279,  p.  1393. 
Subrogation    to    workmen's    priority    claims,    whether    it    is    to    compete 

with  workmen's   own  later   claims,   §  2279,  p.   1393. 
Terms  to  be  given  Ordinary,  Popular  Meaning,  §  2169,  p.  1336. 
"Traveling  Salesmen"  also  entitled  to  Priority,  §  2170,  p.  1338. 
Must  be  "Wages,"  and  be  "Due"  and  "Earned,"  §  2165,  p.  1335. 
Mast  be   Performed  Within   Three   Months   before   Bankruptcy,   §   2178, 

p.  1341. 
Whether  may  be  for  services  covering  longer  period  if  priority  claimed 

not  under  §  64    (b),  (4),  but  under  §  64  (b),  (5),  §  2179,  p.  1341. 

WAIVER 

Assignment  of  errors  can  not  be  waived  on  appeal,  §  2961,  p.   1726;  §  2971, 

p.  1729. 
Of  Discharge  by  Failing  to  Interpose  it  as  defense,  §  2682,  p.  1594. 
Of  Discharge  by  New  promise,  §  2717,  p.   1606. 
Of  Improper  Service  on  Involuntary  petition,  §  313,  p.  221. 
Neither  Affidavit  nor   Bond  for  Seizure  of  property  may  be  waived,   §   342, 

p.  233. 
Of  Prayer  for  Appeal  and  of  citation  on  appeal,  §   2971,  p.   1729. 
Proof  of  Secured  debt  as  unsecured,  whether  a  waiver  of  security,  §  766,  p. 

455. 
Trustee  may  plead,  §  1201,  p.  698. 
Of  Verification,  §  282,  p.  204;  §  1084,  p.  G14. 
Waiving  note  and  proving  on  original  consideration,  §  602,  p.  358  n.  §  796, 

p.  465. 


genera:^  index.  2295 

WAIVER  OF  EXEMPTION  NOTE 

Holder  of,  whether  a  "Secured  Creditor,"   §  1034,  p.  587  n. 

No   Judgment   on   or    Enforcement   of    After    Discharge,    §    1102,    p.    627;    § 

2679,  ,p.   1593. 
In   Leases,  §   1034,  p.   587  n. 
In  notes,  §  1034,  p.  585;  §  2679,  p.  1593. 

WAIVING  TORT 

Judgment    on    quasi-contract    where    tort    waived,    whether    original    fraud 
lost  and  judgment  discharged,  §  2750,  p.  1618. 

WAIVING  TORT  AND  PROVING   ON  IMPLIED   CONTRACT,  §   636,  p. 
377;  §  637,  p.  378;  §  638,  p.   378. 

Waiving  as  to  part  and  affirming  as  to  balance,' §  638,  p.  378. 

WAREHOUSE  CORPORATIONS 

See  "Involuntar}'  Bankruptcy." 

"WAREHOUSING" 

Setting  apart  or   delivery  sufficient  to  constitute,   §   1146,  p.   676;   §   1265,   p. 
746  n. 

WARRANT  FOR  ARREST 

See   "Arrest  and  Detention  of  Bankrupt." 

"WARRANTS  OF  SEIZURE" 

See   "Provisional    Seizure    of   Property." 

WHO   MAY   BECOME   BANKRUPTS 

Under   First   English    Bankruptcy   Laws,   Introd.    (g),   p.    5;    Introd.    (h),    p. 

p.  9;  Introd.   (j),  p.   11;  Introd.   (k),  p.  12. 
See  "Bankrupt." 
See  "Voluntary  Bankruptcy." 
See  "Involuntary  Bankruptcy." 

WHO  MAY  BE  INVOLUNTARY  BANKRUPT 

See  "Involuntary  Bankrupt." 

"WHO  MAY  OBJECT  TO  CLAIMS 

See  "Objections  to  Claims,  Who  ]\Liy  Object." 

WHO  TO  BE  COUNTED 

In  determining  number  of  creditors,  for  involuntarj'  proceedings,  see  "Par- 
ties in  Involuntary  Proceedings." 

WIDOW 

See  "Widow's  and  Children's  Allowances." 
See  "Dower." 

WIDOW'S  AND  CHILDREN'S  ALLOWANCES 

None  in  bankrupt   estate  where   death   occurs   after  adjudication,   §    100,   p 

97;   §   1167,  p.   686. 
Trustee    takes    title    subject    to,    where    bankrupt    dies    before    adjudication, 

§  99,  p.  95;  §  1167,  p.  686. 


2296  GENERAL  INDEX. 

WIDOW'S  AND  CHILDREN'S  ALLOWANCES— Continued. 
Review   of 

Whether  are  "Bankruptcy  Proceedings  proper"  or  "Controversies,"  §  2866. 

p.  1682. 
Reviewable  by  petition  to  revise,  §  2939,  p.  1717. 

WIFE 

Is  "Adverse  Claimant"  when,  §  1664,  p.  1031;  §  1822,  p.  1119. 

Claiming   of   Exemptions   by,   where    bankrupt   husband   neglects    to   claim, 

§  1045,  p.  594;  §  1062,  p.  607. 
Community  Property  of  husband  and,  §  2205,  p.  1357. 
General  Examination  of  bankrupt's  wife,  §   1527,  p.  913. 
Inchoate  Dower  of,  not  cut  off  by  sale  in  bankruptcy  without  wife's  consent, 

§   1973,  p.  1227;  §  1974,  p.   1227. 
Support  of,  liabilities  for  not  Discharged,  §  2757,  p.  1621. 

Liabilities    to    third    parties    not    Excepted    from    Discharge,    §    2759,    p. 
1621. 

WILFUL  AND  MALICIOUS  INJURY  TO  PERSON  OR  PROPERTY 

Liabilities   for,   not   Discharged,   §   2754,  p.   1619. 

WITHDRAWAL 

Of  petitioning  creditors,  §   236,  p.   184. 

WITHDRAWING  PROOFS  OF  CLAIM 

Attorney  at   Law   competent  to  withdraw  without  written  power,   §   624,   p. 

368. 
Filed  as  unsecured,  withdrawn  and  refiled  as  secured,  §  .765,  p.  454. 
Power  of  Amendment  not  to  be  distorted  to  let  in  dilatory  creditors  after 

expiration   of  year,  who  have  withdrawn  proofs,   §   736,  p.   440. 
Proofs  may  be  withdrawn,  §  623,  p.  368. 

WITHHOLDING  OF  DISCHARGE 

For  noncompliance  with  rules,  §  2480,  p.   1496;   §   2582,  p.   1549. 
Temporary,  for  "more  thorough  investigation,"  §  2480,  p.  1497  n. 
Temporary,  until  "proper  accounting"  given,  §  2480,  p.   1497  n. 
Temporary,  for  correction  of  mistakes  as  to  exemptions,  §  2480,  p.  1497  n. 
See   "Discharge — Opposition   to — Grounds   of." 
See  "Discharge,  Withholding  of." 
See   "Discharge — Staying   of." 

WITHHOLDING  OF  DIVIDEND 

Until  expiration  of  year,  not  requisite,  §   731,  p.   439. 

"WITHIN   FOUR  MONTHS" 

See  "Preference — Seventh  Element." 
See  "Four   Months." 

Restraining  sale  or  distribution  under  levy  made,  §  1902,  p.  1189;  §  1903,  p. 
1190. 

WITNESS 

Agent's  Admission  not  binding  unless  within  scope  of  authority,  §   559,  p. 

339;  §   857,  p.  491. 
Attendance  of,  where  residing  out  of  State,  or  further  than  hundred  miles. 

§  1569,  p.  942. 


GENERAI,  INDEX.  2297 

WITNESS— Continued. 

Calling  opposite  party  as  Witness,  whether  binds    by  testimony,  §  1549,  p. 

926;  §   1759,   p.   1073. 
Competency  of,  governed  by  U.  S.  Statutes,  not  by  State  statutes,  §  551,  p. 

335;  §  1567,  p.  941. 
Contempt    for    "Willfully    Evasive"    or    "Flagrantly    False"    testimony    by, 

§  1568.  p.  942;  §  2331,  p.  1416. 
Contradictory  Statements   and   incredible   explanations,   §   2649,   p.   1575. 
Dealings   between    Near    Relatives    Scrutinized   with    care,    §    556,   p.    338;    § 

854,  p.   490. 
Discrediting  even  Admissions  Against  Interest  because  witness  such  enor- 
mous Liar,  §  1850,  p.  1149. 
Entitled   to  Attorney  if  also   Creditor   or   Bankrupt,   §   1574,  p.   944. 
Evasive  Testimony   of,   §   2648,  p.    1575;    §  2652,   p.   1576;   §   2653,   p.    1576. 
Examiner,    on    general    examination,    to    develop    facts    showing    sufficient 

connection    with    bankrupt    to    make    further   inquiry    relevant,    §    1551,    p. 

927. 

Failure   to    Produce    Important   Witness   when   Accessible,    §    1851,    p.    1151; 
§   2646,   p.    1574. 

Fees  and  Mileage  of,  §  1575,  p.  944;  §  2122,  p.  1308. 

For  Attendance  without  Subpoena,  §  2127,  p.  1309. 

Amount  of,  §  2128,  p.l309. 

Bankrupt  not  entitled  to,   §  2123,  p.  1308. 

Claimant    entitled    to    reimbursement    when    examined    as    witness    on 

Reconsideration  of  his  own  claim,  §  1575,  p.  944  n. 
Officers   and  Directors  of  bankrupt  corporation,  whether  entitled  to,  § 
2126,  p.  1309. 
General   Examination  of  nonresident,  §   1570,   p.  942. 
Impeachment    of,   by    Inherent    Improbability   of   his    testimony,    §    2650,    p. 

1575. 
Incriminating   Questions,    see    "Incriminating    Questions." 
Mere    Circumstances    of    Suspicion    insufficient    for    rejection    of   Uncontra- 
dicted testimony,   §   555,    p.   338;   §   853,  p.   490;    §   2651,   p.   1576. 
Mere. order  upon,  while   on  stand,   to  bring  document,   when   disobedience 

of  not  contempt,  §  1576,  p.  944  n. 
Not  entitled  to  Attorney,  §  1573,  p.  943. 
Not    excused,    on    general    examination,    because    testimony    would    Reveal 

private   affairs,  §   1550,   p.   926. 
Obligations  given  on  eve  of  bankruptcy  scrutinized  with  care,  §  557,  p.  33F; 

§   855,  p.   490. 
Privileged  Communications  Respected,  §  1566,  p.  941;  §  1759,  p.   1074  n. 
Protection   of  from  use   of  books,   documents,   etc.,   tending   to   incriminate, 
see  "Incriminating  Questions."       Also,  see  "Production  of  Books,  Papers 
and  Documents  by  Witness." 
Referee  may  order  witness  to  appear  for  examination,  §  537,  p.  332. 
Rejecting   Improbable   Explanations   of,   §   1851,   p.   1149;   §   2649,   p.   1575;   5 

2650,  p.   1575. 
Schemes   to   charge   partnership   assets   with    individual    liabilities,    §    558,   p. 

338;  §   856,  p.  491. 
Untrustworthy,   though    uncontradicted,   testimony    may   be   rejected,   §    55-'. 
p.  337;  §  852,  p.  490;  §  1851,  p.  1149. 


2298  GENERAiv  inde;x. 

WITNESS— Continued. 

See  "Witness  Fees  and  Mileage." 

General  Examinations  of,  see  "General  Examinations  of  Bankrupts  and 
Witnesses." 

WORK 

Performance  of  in  Payment  of  Debt,   Not  a  Preference,   §   1280,   p.    7.57;   § 

1333,  p.  781. 
Performance  of,  Not  a  "Transfer,"  §  1333,  p.  781. 

WORKING  WITHOUT  PAY 

While  insolvent,  whether  "concealment   of  assets,"  §   2515,   p.   1514. 

WORKMEN 

See  "Wages— Of  Workmen,  Clerks  and  Servants." 

WRIT  OF  ERROR,  §  2945,  p.  1721. 

Decree   in   Equity  not  reviewable  by,   §   2921,  p.   1711. 

WRIT  OF  NE  EXEAT,  §  373,  p.  246. 

"WRITTEN  ADMISSION" 

Attorneys'   Fees  not  allowable  to  bankrupt  for  making,  §  2088,  p.  1293. 

Corporation  May  :\Iake,  §  44,  p.  58;  §  168,  p.  142. 

Of  Inability  to  pay  debts,  etc.,  as  acts  of  bankruptcy,  see  "Acts  of  Bank- 
ruptcy— W'ritten  Admissions  of  Inabilitj^  to  Pay  Debts,  etc.,  as." 

Voluntary  bankruptcj^  petition  itself  such  an  act  of  bankruptcy,  §  73,  p.  77; 
§  102,  p.  102;  §  164,  p.  139;   §  192,  p.  159. 

WRITTEN  INSTRUMENT 

See  "Instrument  in  Writing." 

"WRITTEN  STATEMENT" 

False,  whereby  property  obtained  on  credit,  as  bar  to  discharge,  see  "Dis- 
charge— Opposition  to — Grounds  of — False  Statement  to  Obtain  Prop- 
erty  on    Credit." 

YEAR'S  LIMITATION   FOR  FILING  CLAIMS 

Amendment  of  claim  after  expiration  of  year,  §   734,  p.  439. 

But  an  original    claim  must  exist  filed  within  year,  §  735,  p.  440. 
Power  of  amendment   not   to   be   distorted  to  let  in   dilitory   creditors 

who  have  withdrawn  proofs,  §  736,  p.  440. 
Nor  to  let   dilatory   creditors   filing   claims   against   firm   to   file   claims 
against  separate  partners,  §  737,  p.  440. 
Not  applicable  to  "Claim"  of  Assignee  or  Receiver  of  State  Court,  §  1614, 

p.  981  n. 
Not  Applicable  to  U.  S.  Government,  §  730,  p.  438;  §  2193,  p.  1346. 
Not  applicable  to  Taxes,  §  730,  p.  438;  §  2162,  p.  1334. 
Applies  though  Litigation  pending,  §  727,  p.  437. 

Claim  "Allowed"  after  expiration  of  year,  if  filed  within  year,  §  721,  p. 
435. 

Claims  Capable  of  Liquidation  but  not  Liquidated,  nevertheless  Discharged, 
§   732,  p.  439. 


GENERAIv  INDEX.  •  2299 

YEAR'S  LIMITATION  FOR  FILING  CLAIMS— Continued. 

Claims   Not   Proved   within   year,    nevertheless   available   as    Offsets,   §    733, 

p.  439;   §   1178,  p.  690. 
Claims    Presented   After    Year     stricken    from    files,    §    724,    p.    437. 
Composition  cases,  whether  creditors  in,  bound  by,  §  2394,  p.   1446. 
Court's  power  Absolutely  Ceases,  §  723,  p.  436. 
Despatch   in   Administration,   §   718,  p.   434. 
Filing  with  Trustee  sufficient,  §  729,  p.  437. 

Limitation  applies  even  where  creditor  not  notified,  §  725,  p.  437. 
Liquidated  After  Expiration  of  Year  if  filed  within  §  722,  p.  436. 
"Proving"  means  filing  here,  §  720,  p.  434. 
Recovery  of  Preference  after  Expiration  of  Year,  whether  Defeated  party's, 

Pleadings  considered  "Proofs"  filed  within  year,  §  716,  p.  429. 
Reopening  of  estate   once   closed,   does   not  toll   the   Limitation,   §   2r;io,  ;«. 

1405. 
Secured   Claim,   Limitation  applies  to   Deficit  of,  §   728,  p.  437. 
Withholding  of   Dividend  until  Expiration  of  year  not  requisite,    §  731,  p. 

439;  §   2214,  p.   1360. 


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